Give and take: public use as due compensation in PruneYard

Article Abstract:

The US Supreme Court ruled in PruneYard Shopping Center that it was constitutionally permissible for California to require a shopping center to grant political protesters access. The Court did not say the state's actions were constitutionally mandated. Compared to the harm of denying all access and foreclosing political speech options, the harm to the property rights of the center owners, even from a common law perspective, seems modest. If one values the social benefits contributed by citizens engaged in public debate, the political speech allowed could be characterized as an implicit form of compensation.

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Liberties, fair values, and constitutional method

Article Abstract:

Professor Richard A. Epstein's argument that property rights should be given the same protection as free speech rights ignores the functional differences between the two kinds of rights. Property interests tend to conflict and raise issues of distribution more than freedom of expression does. This distinction justifies treating property rights differently. In addition, Epstein overstates the principle of distrust as a constitutional theory. The distinction made between direct versus incidental restrictions on freedom of expression shows that distrust of government is not an overriding concern.

Interpretation and construction, Freedom of speech, Political aspects, Constitutional law, Constitutional interpretation, Property

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The common law baseline and restitution for the lost commons: a reply to professor Epstein

Article Abstract:

Professor Richard A. Epstein is incorrect to assert that the interests served by the Supreme Court's ruling in PruneYard Shopping Center v. Robins are not constitutionally justified. The common law property rights approach that he advocates fails to address the civic and political purposes of the Takings Clause. California and the PruneYard Court understood that allowing public discourse to occur at private shopping centers vindicated free speech rights. Compensation was unnecessary because shopping centers themselves had caused the deterioration of urban public fora.

Cases, California

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