Soon after appellees had begun soliciting in appellant privately
owned shopping center's central courtyard for signatures from
passersby for petitions in opposition to a United Nations
resolution, a security guard informed appellees that they would
have to leave because their activity violated shopping center
regulations prohibiting any visitor or tenant from engaging in any
publicly expressive activity that is not directly related to the
center's commercial purposes. Appellees immediately left the
premises and later filed suit in a California state court to enjoin
the shopping center and its owner (also an appellant) from denying
appellees access to the center for the purpose of circulating their
petitions. The trial court held that appellees were not entitled
under either the Federal or California Constitution to exercise
their asserted rights on the shopping center property, and the
California Court of Appeal affirmed. The California Supreme Court
reversed, holding that the California Constitution protects speech
and petitioning, reasonably exercised, in shopping centers even
when the center is privately owned, and that such result does not
infringe appellants' property rights protected by the Federal
1. This case is properly before this Court as an appeal under 28
U.S.C. § 1257(2). A state constitutional provision is a "statute"
within the meaning of § 1257(2), and in deciding that the State
Constitution gave appellees the right to solicit signatures on
appellants' property, the California Supreme Court rejected
appellants' claim that recognition of such a right violated their
"right to exclude others," a fundamental component of their
federally protected property rights. Pp. 447 U. S.
2. State constitutional provisions, as construed to permit
individuals reasonably to exercise free speech and petition rights
on the property of a privately owned shopping center to which the
public is invited, do not violate the shopping center owner's
property rights under the Fifth and Fourteenth Amendments or his
free speech rights under the First and Fourteenth Amendments. Pp.
447 U.S. 88
(a) The reasoning in Lloyd Corp. v. Tanner,
407 U. S. 551
Page 447 U. S. 75
held that the First Amendment does not prevent a private
shopping center owner from prohibiting the distribution on center
premises of handbills unrelated to the center's operations -- does
not ex proprio vigore
limit a State's authority to
exercise its police power or its sovereign right to adopt in its
own constitution individual liberties more expansive than those
conferred by the Federal Constitution. And a State, in the exercise
of its police power, may adopt reasonable restrictions on private
property so long as the restrictions do not amount to a taking
without just compensation or contravene any other federal
constitutional provision. Pp. 447 U. S.
(b) The requirement that appellants permit appellees to exercise
state-protected rights of free expression and petition on shopping
center property does not amount to an unconstitutional infringement
of appellants' property rights under the Taking Clause of the Fifth
Amendment, appellants having failed to demonstrate that the "right
to exclude others" is so essential to the use or economic value of
their property that the state-authorized limitation of it amounted
to a "taking." Kaiser Aetna v. United States, 444 U.
, distinguished. And there is no merit to
appellants' argument that they have been denied property without
due process of law, where they have failed to show that the due
process test whereby the challenged law must not be unreasonable,
arbitrary, or capricious and the means selected must have a real
and substantial relation to the objective to be obtained, is not
satisfied by the State's asserted interest in promoting more
expansive rights of free speech and petition than conferred by the
Federal Constitution. Pp. 447 U. S.
(c) Nor have appellants' First Amendment rights been infringed
by the California Supreme Court's decision. The shopping center, by
choice of its owner, is not limited to the personal use of
appellants, and the views expressed by members of the public in
passing out pamphlets or seeking signatures for a petition thus
will not likely be identified with those of the owner. Furthermore,
no specific message is dictated by the State to be displayed on
appellants' property, and appellants are free to publicly
dissociate themselves from the views of the speakers or
handbillers. Wooley v. Maynard, 430 U.
; West Virginia State Board of Education v.
Barnette, 319 U. S. 624
Miami Herald Publishing Co. v. Tornillo, 418 U.
, distinguished. Pp. 447 U. S.
23 Cal. 3d
, 592 P.2d 341, affirmed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and STEVENS, JJ.,
joined; in Parts I, II, III, and IV of which WHITE and POWELL, JJ.,
Page 447 U. S. 76
in all but one sentence of which BLACKMUN, J., joined. MARSHALL,
J., filed a concurring opinion, post,
p. 447 U. S. 89
WHITE, J., filed an opinion concurring in part and in the judgment,
p. 447 U. S. 95
POWELL, J., filed an opinion concurring in part and in the
judgment, in which WHITE, J., joined, post,
447 U. S. 96
BLACKMUN, J., filed a statement concurring in part, post,
p. 447 U.S. 88
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
We postponed jurisdiction of this appeal from the Supreme Court
of California to decide the important federal constitutional
questions it presented. Those are whether state constitutional
provisions, which permit individuals to exercise free speech and
petition rights on the property of a privately owned shopping
center to which the public is invited, violate the shopping center
owner's property rights under the Fifth
Page 447 U. S. 77
and Fourteenth Amendments or his free speech rights under the
First and Fourteenth Amendments.
Appellant PruneYard is a privately owned shopping center in the
City of Campbell, Cal. It covers approximately 21 acres -- 5
devoted to parking and 16 occupied by walkways, plazas, sidewalks,
and buildings that contain more than 65 specialty shops, 10
restaurants, and a movie theater. The PruneYard is open to the
public for the purpose of encouraging the patronizing of its
commercial establishments. It has a policy not to permit any
visitor or tenant to engage in any publicly expressive activity,
including the circulation of petitions, that is not directly
related to its commercial purposes. This policy has been strictly
enforced in a nondiscriminatory fashion. The PruneYard is owned by
appellant Fred Sahadi.
Appellees are high school students who sought to solicit support
for their opposition to a United Nations resolution against
"Zionism." On a Saturday afternoon they set up a card table in a
corner of PruneYard's central courtyard. They distributed pamphlets
and asked passersby to sign petitions, which were to be sent to the
President and Members of Congress. Their activity was peaceful and
orderly, and, so far as the record indicates, was not objected to
by PruneYard's patrons.
Soon after appellees had begun soliciting signatures, a security
guard informed them that they would have to leave because their
activity violated PruneYard regulations. The guard suggested that
they move to the public sidewalk at the PruneYard's perimeter.
Appellees immediately left the premises and later filed this
lawsuit in the California Superior Court of Santa Clara County.
They sought to enjoin appellants from denying them access to the
PruneYard for the purpose of circulating their petitions.
The Superior Court held that appellees were not entitled under
either the Federal or California Constitution to exercise
Page 447 U. S. 78
their asserted rights on the shopping center property. App. to
Juris.Statement A-2. It concluded that there were "adequate,
effective channels of communication for [appellees] other than
soliciting on the private property of the [PruneYard]."
at A-3. The California Court of Appeal affirmed.
The California Supreme Court reversed, holding that the
California Constitution protects "speech and petitioning,
reasonably exercised, in shopping centers even when the centers are
privately owned." 23 Cal. 3d
, 910, 592 P.2d 341, 347 (1979). It concluded that appellees
were entitled to conduct their activity on PruneYard property. In
rejecting appellants' contention that such a result infringed
property rights protected by the Federal Constitution, the
California Supreme Court observed:
"'It bears repeated emphasis that we do not have under
consideration the property or privacy rights of an individual
homeowner or the proprietor of a modest retail establishment. As a
result of advertising and the lure of a congenial environment,
25,000 persons are induced to congregate daily to take advantage of
the numerous amenities offered by the [shopping center there]. A
handful of additional orderly persons soliciting signatures and
distributing handbills in connection therewith, under reasonable
regulations adopted by defendant to assure that these activities do
not interfere with normal business operations (see Diamond [v.
Bland, 3 Cal. 3d 653
665, 477 P.2d 733, 741 (1970)]) would not markedly dilute
defendant's property rights.' ([Diamond v.
Bland, 11 Cal. 3d
, 345, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk,
at 910-911, 592 P.2d at 347-348. The California
Supreme Court thus expressly overruled its earlier decision in
Diamond v. Bland, 11 Cal. 3d
, 521 P.2d 460 (Diamond II
), cert. denied,
419 U.S. 885 (1974), which had reached an opposite conclusion. 23
Page 447 U. S. 79
910, 592 P.2d at 347. [Footnote
] Before this Court, appellants contend that their
constitutionally established rights under the Fourteenth Amendment
to exclude appellees from adverse use of appellants' private
property cannot be denied by invocation of a state constitutional
provision or by judicial reconstruction of a State's laws of
private property. We postponed consideration of the question of
jurisdiction until the hearing of the case on the merits. 444 U.S.
949. We now affirm.
We initially conclude that this case is properly before us as an
appeal under 28 U.S.C. § 1257(2). It has long been established that
a state constitutional provision is a "statute" within the meaning
of § 1257(2). See, e.g., Torcaso v. Watkins, 367 U.
, 367 U. S. 489
(1961); Adamson v. California, 332 U. S.
, 332 U. S. 48
2 (1947); Railway Express Agency, Inc. v. Virginia,
282 U. S. 440
(1931). Here the California Supreme Court decided that Art. 1, §§ 2
and 3, of the California Constitution gave appellees the right to
solicit signatures on appellants' property in exercising their
state rights of free expression and petition. [Footnote 2
] In so doing, the California Supreme
Page 447 U. S. 80
rejected appellants' claim that recognition of such a right
violated appellants' "right to exclude others," which is a
fundamental component of their federally protected property rights.
Appeal is thus the proper method of review.
Appellants first contend that Lloyd Corp. v. Tanner,
407 U. S. 551
(1972), prevents the State from requiring a private shopping center
owner to provide access to persons exercising their state
constitutional rights of free speech and petition when adequate
alternative avenues of communication are available. Lloyd
dealt with the question whether, under the Federal Constitution, a
privately owned shopping center may prohibit the distribution of
handbills on its property when the handbilling is unrelated to the
shopping center's operations. Id.
at 407 U. S. 552
The shopping center had adopted a strict policy against the
distribution of handbills within the building complex and its
malls, and it made no exceptions to this rule. Id.
407 U. S. 555
] Respondents in
argued that, because the shopping center was open to
the public, the First Amendment prevents the private owner from
enforcing the handbilling restriction on shopping center premises.
at 407 U. S. 564
Page 447 U. S. 81
In rejecting this claim, we substantially repudiated the
rationale of Food Employees v. Logan Valley Plaza,
391 U. S. 308
(198), which was later overruled in Hudgens v. NLRB,
424 U. S. 507
(1976). We stated that property does not "lose its private
character merely because the public is generally invite to use it
for designated purposes," and that " [t]he essentially private
character of a store and its privately owned abutting property does
not change by virtue of being large or clustered with other stores
in a modern shopping center." 407 U.S. at 407 U. S.
Our reasoning in Lloyd,
however, does not, ex
limit the authority of the State to exercise
its police power or its sovereign right to adopt in its own
Constitution individual liberties more expansive than those
conferred by the Federal Constitution. Cooper v.
California, 386 U. S. 58
386 U. S. 62
(1967). See also
407 U.S. at 407 U. S.
-570. In Lloyd, supra,
there was no state
constitutional or statutory provision that had been construed to
create rights to the use of private property by strangers,
comparable to those found to exist by the California Supreme Court
here. It is, of course, well established that a State, in the
exercise of its police power, may adopt reasonable restrictions on
private property so long as the restrictions do not amount to a
taking without just compensation or contravene any other federal
constitutional provision. See, e.g., Euclid v. Ambler Realty
Co., 272 U. S. 365
(1926); Young v. American Mini Theatres, Inc.,
427 U. S. 50
held that, when a shopping center owner
opens his private property to the public for the purpose of
shopping, the First Amendment to the United States Constitution
does not thereby create individual rights in expression beyond
those already existing under applicable law. See also Hudgens
v. NLRB, supra
at 424 U. S.
Page 447 U. S. 82
Appellants next contend that a right to exclude others underlies
the Fifth Amendment guarantee against the taking of property
without just compensation and the Fourteenth Amendment guarantee
against the deprivation of property without due process of law.
It is true that one of the essential sticks in the bundle of
property rights is the right to exclude others. Kaiser Aetna v.
United States, 444 U. S. 164
444 U. S.
-10 (1979). And here there has literally been a
"taking" of that right to the extent that the California Supreme
Court has interpreted the State constitution to entitle its
citizens to exercise free expression and petition rights on
shopping center property. [Footnote
] But it is well established that "not every destruction or
injury to property by governmental action has been held to be a
taking' in the constitutional sense." Armstrong v. United
States, 364 U. S. 40,
364 U. S. 48
(1960). Rather, the determination whether a state law unlawfully
infringes a landowner's property in
Page 447 U. S. 83
violation of the Taking Clause requires an examination of
whether the restriction on private property "forc[es] some people
alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole." Id.
364 U. S. 49
] This examination
entails inquiry into such factors as the character of the
governmental action, its economic impact, and its interference with
reasonable investment-backed expectations. Kaiser Aetna v.
United States, supra,
at 444 U. S. 175
When "regulation goes too far, it will be recognized as a taking."
Pennsylvania Coal Co. v. Mahon, 260 U.
, 260 U. S. 415
Here the requirement that appellants permit appellees to
exercise state-protected rights of free expression and petition on
shopping center property clearly does not amount to an
unconstitutional infringement of appellants' property right under
the Taking Clause. There is nothing to suggest that preventing
appellants from prohibiting this sort of activity will unreasonably
impair the value or use of their property as a shopping center. The
PruneYard is a large commercial complex that covers several city
blocks, contains numerous separate business establishments, and is
open to the public at large. The decision of the California Supreme
Court makes it clear that the PruneYard may restrict expressive
activity by adopting time, place, and manner regulations that will
minimize any interference with its commercial functions. Appellees
were orderly, and they limited their activity to the
Page 447 U. S. 84
common areas of the shopping center. In these circumstances, the
fact that they may have "physically invaded" appellants' property
cannot be viewed as determinative.
This case is quite different from Kaiser Aetna v. United
States, supra. Kaiser Aetna
was a case in which the
owners of a private pond had invested substantial amounts of money
in dredging the pond, developing it into an exclusive marina, and
building a surrounding marina community. The marina was open only
to fee-paying members, and the fees were paid in part to "maintain
the privacy and security of the pond." Id.
at 444 U. S. 168
The Federal Government sought to compel free public use of the
private marina on the ground that the marina became subject to the
federal navigational servitude because the owners had dredged a
channel connecting it to "navigable water."
The Government's attempt to create a public right of access to
the improved pond interfered with Kaiser Aetna's "reasonable
investment backed expectations." We held that it went "so far
beyond ordinary regulation or improvement for navigation as to
amount to a taking. . . ." Id.
at 444 U. S. 178
Nor, as a general proposition, is the United States, as opposed to
the several States, possessed of residual authority that enables it
to define "property" in the first instance. A State is, of course,
bound by the Just Compensation Clause of the Fifth Amendment,
Chicago, B. & Q. R. Co. v. Chicago, 166 U.
, 166 U. S. 233
236-237 (1897), but here appellants have failed to demonstrate that
the "right to exclude others" is so essential to the use or
economic value of their property that the state-authorized
limitation of it amounted to a "taking."
There is also little merit to appellants' argument that they
have been denied their property without due process of law. In
Nebbia v. New York, 291 U. S. 502
(1934), this Court stated:
"[N]either property rights nor contract rights are absolute. . .
. Equally fundamental with the private right
Page 447 U. S. 85
is that of the public to regulate it in the common interest. . .
"* * * *"
". . . [T]he guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the objective sought to be attained."
at 291 U. S. 523
291 U. S. 525
See also Railway Express Agency, Inc. v. New York,
336 U. S. 106
(1949); Exxon Corp. v. Governor of Maryland, 437 U.
, 437 U. S.
-125 (1978). Appellants have failed to provide
sufficient justification for concluding that this test is not
satisfied by the State's asserted interest in promoting more
expansive rights of free speech and petition than conferred by the
Federal Constitution. [Footnote
Appellants finally contend that a private property owner has a
First Amendment right not to be forced by the State to use his
property as a forum for the speech of others. [Footnote 9
Page 447 U. S. 86
state that, in Wooley v. Maynard, 430 U.
(1977), this Court concluded that a State may not
constitutionally require an individual to participate in the
dissemination of an ideological
Page 447 U. S. 87
message by displaying it on his private property in a manner and
for the express purpose that it be observed and read by the public.
This rationale applies here, they argue, because the message of
is that the State may not force an individual to
display any message at all.
however, was a case in which the government
itself prescribed the message, required it to be displayed openly
on appellee's personal property that was used "as part of his daily
life," and refused to permit him to take any measures to cover up
the motto even though the Court found that the display of the motto
served no important state interest. Here, by contrast, there are a
number of distinguishing factors. Most important, the shopping
center, by choice of its owner, is not limited to the personal use
of appellants. It is instead a business establishment that is open
to the public to come and go as they please. The views expressed by
members of the public in passing out pamphlets or seeking
signatures for a petition thus will not likely be identified with
those of the owner. Second, no specific message is dictated by the
State to be displayed on appellants' property. There consequently
is no danger of governmental discrimination for or against a
particular message. Finally, as far as appears here, appellants can
expressly disavow any connection with the message by simply posting
signs in the area where the speakers or handbillers stand. Such
signs, for example, could disclaim any sponsorship of the message
and could explain that the persons are communicating their own
messages by virtue of state law.
Appellants also argue that their First Amendment rights have
been infringed in light of West Virginia State Board
Page 447 U. S. 88
Education v. Barnette, 319 U.
(1943), and Miami Herald Publishing Co. v.
Tornillo, 418 U. S. 241
is inapposite, because it involved the
compelled recitation of a message containing an affirmation of
belief. This Court held such compulsion unconstitutional because it
"require[d] the individual to communicate by word and sign his
acceptance" of government-dictated political ideas, whether or not
he subscribed to them. 319 U.S. at 319 U. S. 633
Appellants are not similarly being compelled to affirm their belief
in any governmentally prescribed position or view, and they are
free to publicly dissociate themselves from the views of the
speakers or handbillers.
struck down a Florida statute requiring a
newspaper to publish a political candidate's reply to criticism
previously published in that newspaper. It rests on the principle
that the State cannot tell a newspaper what it must print. The
Florida statute contravened this principle in that it "exact[ed] a
penalty on the basis of the content of a newspaper." 418 U.S. at
418 U. S. 256
There also was a danger in Tornillo
that the statute would
"dampe[n] the vigor and limi[t] the variety of public debate" by
deterring editors from publishing controversial political
statements that might trigger the application of the statute.
at 447 U. S. 257
Thus, the statute was found to be an "intrusion into the function
of editors." Id.
at 447 U. S. 258
These concerns obviously are not present here.
We conclude that neither appellants' federally recognized
property rights nor their First Amendment right have been infringed
by the California Supreme Court's decision recognizing a right of
appellees to exercise state-protected rights of expression and
petition on appellants' property. The judgment of the Supreme Court
of California is therefore
MR. JUSTICE BLACKMUN joins the opinion of the Court except that
sentence thereof, ante
at 447 U. S. 84
Page 447 U. S. 89
as a general proposition is the United States, as opposed to the
several States, possessed of residual authority that enables it to
define 'property' in the first instance."
The California Supreme Court, in Diamond II,
"In this case, as in Lloyd [Corp. v. Tanner,
407 U. S.
(1972)], plaintiffs have alternative, effective
channels of communication, for the customers and employees of the
center may be solicited on any public sidewalks, parks and streets
adjacent to the Center and in the communities in which such persons
reside. Unlike the situation in Marsh [v. Alabama,
326 U. S.
(1946)] and [Food Employees v. Logan Valley
Plaza, 391 U. S. 308
(1968)], no reason
appears why such alternative means of communication would be
ineffective, and plaintiffs concede that, unlike Logan,
their initiative petition bears no particular relation to the
shopping center, its individual stores, or patrons."
11 Cal. 3d at 335, 521 P.2d at 463. Diamond II
held that the shopping center owner's property rights outweighed
the rights of free expression and petition asserted by the
Article 1, § 2, of the California Constitution provides:
"Every person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for tho abuse of this
right. A law may not restrain or abridge liberty of speech or
Article 1, § 3, of the California Constitution provides:
"[P]eople have the right to . . . petition government for
redress of grievances."
The center had banned handbilling because it
"was considered likely to annoy customers, to create litter,
potentially to create disorders, and generally to be incompatible
with the purpose of the Center and the atmosphere sought to be
407 U.S. at 407 U. S.
Respondents relied on Marsh v. Alabama, 326 U.
(1946), and Food Employees v. Logan Valley
Plaza, 391 U. S. 308
(168), in support of their claim that the shopping center's
permission to the public to enter its property for the purpose of
shopping caused its property to lose its private character, thereby
permitting members of the public to exercise the same free speech
rights as they would have on similar public facilities or the
streets of a city or town. Both of those cases, however, involved
no state law authorizing the conduct of the solicitors or
Appellants do not maintain that this is a condemnation case.
Reply Brief for Appellants 2. Rather, they argue that
"[t] he rights of a property owner . . . are rooted in the Fifth
Amendment guarantee against the taking of property without just
compensation, and are incorporated in the Fourteenth Amendment
guarantee against the deprivation of property without due process
Brief for Appellants 10. Here, of course, if the law required
the conclusion that there was a "taking," there was concededly no
compensation, just or otherwise, paid to appellants. This argument
falls within appellants' contention that Lloyd
407 U.S. at 407 U. S. 567
and was adequately presented below. See New York ex rel. Bryant
v. Zimmerman, 278 U. S. 63
278 U. S. 67
The term "property" as used in the Taking Clause includes the
entire "group of rights inhering in the citizen's [ownership]."
United States v. General Motors Corp., 323 U.
(1945). It is not used in the
"vulgar and untechnical sense of the physical thing with respect
to which the citizen exercises rights recognized by law. [Instead,
it] denote[s] the group of rights inhering in the citizen's
relation to the physical thing, as the right to possess, use and
dispose of it. . . . The constitutional provision is addressed to
every sort of interest the citizen may possess."
at 323 U. S.
Thus, as this Court stated in Monongahela Navigation Co. v.
United States, 148 U. S. 312
148 U. S. 325
(1893), a case which has since been characterized as resting
primarily on "estoppel," see, e.g., United States v.
Rands, 389 U. S. 121
389 U. S. 126
(1967), the Fifth Amendment
"prevents the public from loading upon one individual more than
his just share of the burdens of government, and says that, when he
surrenders to the public something more and different from that
which is exacted from other members of the public, a full and just
equivalent shall be returned to him."
See also Penn Central Transportation Co. v. New York
City, 438 U. S. 104
438 U. S.
-125 (1978); Pennsylvania Coal Co. v. Mahon,
260 U. S. 393
260 U. S. 416
Although appellants contend there are adequate alternative
avenues of communication available for appellees, it does not
violate the United States Constitution for the State Supreme Court
to conclude that access to appellants' property in the manner
required here is necessary to the promotion of state-protected
rights of free speech and petition.
Appellees contend that this issue is not properly before us
because appellants have not met their burden of showing that it was
raised in the state courts. It is well settled that, in challenging
the validity of a state law on the ground that it is repugnant to
the Constitution of the United States,
"[n]o particular form of words or phrases is essential, but only
that the claim of invalidity on the ground therefor be brought to
the attention of the state court with fair precision and in due
time. And if the record as a whole shows either expressly or by
clear intendment that this was done, the claim is to be regarded as
having been adequately presented."
New York ex rel. Bryant v. Zimmerman,
278 U.S. at
278 U. S.
Before the Supreme Court of California, appellants argued:
"The constitutional right to exclude potential communicants from
private property is inextricably intertwined with the right of the
property owner to select the way he wishes to use his property. . .
. The right, which has been recognized as deriving from the owner's
status as owner, also derives from the owner's status as himself a
potential communicant. Defendant urges that his constitutional
right to free speech would be infringed if he were required to make
his property available to others for the purpose of their
Brief in Response to Amici Curiae
Briefs in No. S.F.
23812, p. 39 (Sup.Ct.Cal.). In making this argument, appellants
explicitly relied on Wooley v. Maynard, 430 U.
(1977), and West Virginia State Board of
Education v. Barnette, 319 U. S. 624
(1943). Brief in Response to Amici Curiae
at 40-42. Before this Court, appellants contend
"[t] he constitutional rights of private property owners also
have their origins in the First Amendment right of the property
owner not to be forced by the state to use his property as a forum
for the speech of others."
Brief for Appellants 12. See also
And appellants, throughout this litigation, have been asserting
their federal constitutional right to prohibit public expressive
activity on their property that is not directly related to
PruneYard's commercial purposes.
In addition, this Court has held federal claims to have been
adequately presented even though not raised in lower state courts
when the highest state court renders an unexpected interpretation
of state law or reverses its prior interpretation.
Brinkerhoff-Faris Trust & Savings Co. v. Hill,
281 U. S. 673
281 U. S.
-678 (1930); Missouri ex rel. Missouri Ins. Co.
v. Gehner, 281 U. S. 313
281 U. S. 320
(1930); Saunders v. Shaw, 244 U.
, 244 U. S. 320
(1917). Here, prior to its decision below, the California Supreme
Court had expressly decided to follow Lloyd Corp. v.
Tanner, 407 U. S. 551
(1972), in defining the scope of state constitutional rights of
free speech and petition. Diamond II,
11 Cal. 3d at 335,
521 P.2d at 463. It was not until the instant case that the
California Supreme Court overruled Diamond II, supra,
held that the California Constitution can and does require shopping
center owners to grant access to individuals exercising their state
rights of free expression and petition.
Prior to reaching the California Supreme Court, appellants
argued that the Diamond II
decision bound the California
Superior Court and Court of Appeal to rule in appellants' favor.
Appellants prevailed in these courts, and Diamond II
held to be controlling. Once before the California Supreme Court,
as noted above, appellants explicitly presented their federal
constitutional right t.o prohibit public expression on their
property in terms of Wooley
not until that time that they could have reasonably expected that
the validity of the earlier Diamond II
decision would be
questioned. In these circumstances, we conclude that appellants
have adequately raised the federal question.
MR. JUSTICE MARSHALL, concurring.
I join the opinion of the Court, but write separately to make a
few additional points.
In Food Employees v. Logan Valley Plaza, 391 U.
(1968), this Court held that the First and
Fourteenth Amendments prevented a state court from relying on its
law of trespass to enjoin the peaceful picketing of a business
enterprise located within a shopping center. The Court concluded
that, because the shopping center "serves as the community business
block" and is open to the general public,
"the State may not delegate the power, through the use of its
trespass laws, wholly to exclude those members of the public
wishing to exercise their First Amendment rights on the
at 391 U. S. 319
The Court rejected the suggestion that such an abrogation of the
state law of trespass would intrude on the constitutionally
protected property rights of shopping center owners. And it
emphasized that the shopping center was open to the public, and
that reasonable restrictions on the exercise of communicative
activity would be permitted.
"[N]o meaningful claim to protection of a right of privacy can
be advanced by respondents here. Nor on the facts of the case can
any significant claim to protection of the normal business
operation of the property be raised. Naked title is essentially all
that is at issue."
at 391 U. S.
The Court in Logan Valley
emphasized that, if the
property rights of shopping center owners were permitted to
overcome the First Amendment rights of prospective petitioners, a
significant intrusion on communicative activity would result.
Because "[t]he large-scale movement of this country's population
from the cities to the suburbs has been accompanied
Page 447 U. S. 90
by the advent of the suburban shopping center," a contrary
decision would have
"substantial consequences for workers seeking to challenge
substandard working conditions, consumers protesting shoddy or
overpriced merchandise, and minority groups seeking
nondiscriminatory hiring policies."
In light of these realities, we concluded that
the First and Fourteenth Amendments prohibited the State from using
its trespass laws to prevent the exercise of expressive activities
on privately owned shopping centers, at least when those activities
were related to the operations of the store at which they were
In Lloyd Corp. v. Tanner, 407 U.
(1972), the Court confined Logan Valley
to its facts, holding that the First and Fourteenth Amendments were
not violated when a State prohibited petitioning that was not
designed to convey information with respect to the operation of the
store that was being picketed. The Court indicated that a contrary
result would constitute "an unwarranted infringement of property
rights." 407 U.S. at 407 U. S. 567
And in Hudgens v. NLRB, 424 U. S. 507
(1976), the Court concluded that Lloyd
had in fact
overruled Logan Valley.
I continue to believe that Logan Valley
decided, and that both Lloyd
incorrect interpretations of the First and Fourteenth Amendments.
State action was present in all three cases. In all of them, the
shopping center owners had opened their centers to the public at
large, effectively replacing the State with respect to such
traditional First Amendment forums as streets, sidewalks, and
parks. The State had, in turn, made its laws of trespass available
to shopping center owners, enabling them to exclude those who
wished to engage in expressive activity on their premises.
Page 447 U. S. 91
Rights of free expression become illusory when a State has
operated in such a way as to shut off effective channels of
communication. I continue to believe, then, that
"the Court's rejection of any role for the First Amendment in
the privately owned shopping center complex stems . . . from an
overly formalistic view of the relationship between the institution
of private ownership of property and the First Amendment's
guarantee of freedom of speech."
Hudgens v. NLRB, supra
at 424 U. S. 542
In the litigation now before the Court, the Supreme Court of
California construed the California Constitution to protect
precisely those rights of communication and expression that were at
stake in Logan Valley, Lloyd,
California court concluded that its State "[C]onstitution broadly
proclaims speech and petition rights. Shopping centers to which the
public is invited can provide an essential and invaluable forum for
exercising those rights." 23 Cal. 3d
, 910, 592 P.2d 341, 347 (1979). Like the Court in Logan
the California court found that access to shopping
centers was crucial to the exercise of rights of free expression.
And like the Court in Logan Valley,
the California court
rejected the suggestion that the Fourteenth Amendment barred the
intrusion on the property rights of the shopping center owners. I
applaud the court's decision, which is a part of a very healthy
trend of affording state constitutional provisions a more expansive
interpretation than this Court has given to the Federal
Brennan State Constitutions and the
Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977).
Appellants, of course, take a different view. They contend that
the decision below amounts to a constitutional "taking" or a
deprivation of their property without due process of law.
they claim, did not merely overrule
Page 447 U. S. 92
First Amendment holding; it overruled its due
process ruling as well, recognizing a federally protected right on
the part of shopping center owners to enforce the preexisting state
law of trespass by excluding those who engage in communicative
activity on their property. In my view, the issue appellants
present is largely a restatement of the question of whether and to
what extent a State may abrogate or modify common law rights.
Although the cases in this Court do not definitively resolve the
question, they demonstrate that appellants' claim has no merit.
Earlier this Term, in Martinez v. California,
444 U. S. 277
(1980), the Court was also confronted with a claim that the
abolition of a cause of action previously conferred by state law
was an impermissible taking of "property." We responded that, even
if a preexisting state law remedy
"is a species of 'property' protected by the Due Process Clause,
. . . it would remain true that the State's interest in fashioning
its own rules of tort law is paramount to any discernible federal
interest, except perhaps an interest in protecting the individual
citizen from state action that is wholly arbitrary or
at 444 U. S.
-282. Similarly, in the context of a claim that a
guest statute impermissibly abrogated common law rights of tort,
the Court observed that the Due Process Clause does not forbid the
"creation of new rights, or the abolition of old ones recognized by
the common law, to attain a permissible legislative object."
Silver v. Silver, 280 U. S. 117
280 U. S. 122
(1929). And in Munn v. Illinois, 94 U. S.
(1877), the Court upheld a statute limiting the
permissible rate for the warehousing of grain.
"A person has no property, no vested interest, in any rule of
the common law. . . . Rights of property which have been created by
the common law cannot be taken away without due process; but the
law itself, as a rule of conduct, may be changed at the will . . .
of the legislature, unless prevented by constitutional limitations.
Indeed, the great office of statutes is to remedy defects in
Page 447 U. S. 93
common law as they are developed, and to adapt it to the changes
of time and circumstances."
at 94 U. S. 134
See also Second Employers' Liability Cases, 223 U. S.
, 223 U. S. 50
(1912); Crowell v. Benson, 285 U. S.
, 285 U. S. 41
Appellants' claim in this case amounts to no less than a
suggestion that the common law of trespass is not subject to
revision by the State, notwithstanding the California Supreme
Court's finding that state-created rights of expressive activity
would be severely hindered if shopping centers were closed to
expressive activities by members of the public. If accepted, that
claim would represent a return to the era of Lochner v. New
York, 198 U. S. 45
(1905), when common law rights were also found immune from revision
by State or Federal Government. Such an approach would freeze the
common law as it has been constructed by the courts, perhaps at its
19th-century state of development. It would allow no room for
change in response to changes in circumstance. The Due Process
Clause does not require such a result.
On the other hand, I do not understand the Court to suggest that
rights of property are to be defined solely by state law, or that
there is no federal constitutional barrier to the abrogation of
common law rights by Congress or a state government. The
constitutional terms "life, liberty, and property" do not derive
their meaning solely from the provisions of positive law. They have
a normative dimension as well, establishing a sphere of private
autonomy which government is bound to respect. [Footnote 2/2
] Quite serious constitutional
questions might be raised if a legislature attempted to abolish
Page 447 U. S. 94
categories of common law rights in some general way. Indeed, our
cases demonstrate that there are limits on governmental authority
to abolish "core" common law rights, including rights against
trespass, at least without a compelling showing of necessity or a
provision for a reasonable alternative remedy. [Footnote 2/3
That "core" has not been approached in this case. The California
Supreme Court's decision is limited to shopping centers, which are
already open to the general public. The owners are permitted to
impose reasonable restrictions on expressive activity. There has
been no showing of interference with appellants' normal business
operations. The California court has not permitted an invasion of
any personal sanctuary. Cf. Stanley v. Georgia,
394 U. S. 557
(1969). No rights of privacy are implicated. In these
Page 447 U. S. 95
there is no basis for strictly scrutinizing the intrusion
authorized by the California Supreme Court.
I join the opinion of the Court.
In this respect, the cases resembled Shelley v.
Kraemer, 334 U. S. 1
and New York Times Co. v. Sullivan, 376 U.
(1964), in which the common law rules of contract
and tort were held to constitute state action for Fourteenth
This understanding is embodied in cases in the procedural due
process area holding that at least some "grievous losses" amount to
deprivation of "liberty" or "property" within the meaning of the
Due Process Clause, even if those losses are not protected by
statutory or common law. See Vitek v. Jones, 445 U.
, 445 U. S.
-489 (1980), and cases cited; Mathews v.
Eldridge, 424 U. S. 319
424 U. S. 333
(1976). See also Meachum v. Fano, 427 U.
, 427 U. S. 229
(1976) (STEVENS, J., dissenting).
For example, in Ingraham v. Wright, 430 U.
(1977), the Court found a constitutional liberty
interest in freedom from corporal punishment, in large part on the
ground that that interest was protected at common law. The Court
stated that the
"Due Process Clause . . . was intended to give Americans at
least the protection against governmental power that they had
enjoyed as Englishmen against the power of the Crown. The liberty
preserved from deprivation without due process included the right
'generally to enjoy those privileges long recognized at common law
as essential to the orderly pursuit of happiness by free men.'"
at 430 U. S.
-673 (citation omitted). In Duke Power Co. v.
Carolina Environmental Study Group, 438 U. S.
, 438 U. S. 88
(1978), the Court reserved the question whether, in creating a
compensation scheme for victims of nuclear accidents, Congress was
constitutionally obliged to "provide a reasonable substitute
remedy" for the abrogation of common law rights of tort. Similarly,
in New York Central R. Co. v. White, 243 U.
, 243 U. S. 201
(1917), the Court expressed uncertainty as to whether
"a State might, without violence to the constitutional guaranty
of 'due process of law,' suddenly set aside all common law rules
respecting liability as between employer and employee, without
providing a reasonably just substitute,"
"doubted whether the State could abolish all rights of action on
the one hand, or all defenses on the other, without setting up
something adequate in their stead."
MR. JUSTICE WHITE, concurring in part and concurring in the
I join MR. JUSTICE POWELL's concurring opinion, but with these
The question here is whether the Federal Constitution forbids a
State to implement its own free-speech guarantee by requiring
owners of shopping centers to permit entry on their property for
the purpose of communicating with the public about subjects having
no connection with the shopping centers' business. The Supreme
Court of California held that in the circumstances of this case the
federally protected property rights of appellants were not
infringed. The state court recognized, however, that reasonable
time and place limitations could be imposed and that it was dealing
with the public or common areas in a large shopping center, and not
with an individual retail establishment within or without the
shopping center or with the property or privacy rights of a
homeowner. On the facts before it,
"[a] handful of additional orderly persons soliciting signatures
and distributing handbills . . . would not markedly dilute
defendant's property rights."
23 Cal. 3d
, 911, 592 P.2d 341, 347-348 (1979).
I agree that, on the record before us, there was not an
unconstitutional infringement of appellants' property rights. But
it bears pointing out that the Federal Constitution does not
require that a shopping center permit distributions or
solicitations on its property. Indeed, Hudgens v. NLRB,
424 U. S. 507
(1976), and Lloyd Corp. v. Tanner, 407 U.
(1972), hold that the First and Fourteenth
Amendments do not prevent the property owner from excluding those
who would demonstrate or communicate on his property. Insofar as
the Federal Constitution is concerned, therefore, a State may
Page 447 U. S. 96
decline to construe its own constitution so as to limit the
property rights of the shopping center owner.
The Court also affirms the California Supreme Court's implicit
holding that appellants' own free-speech rights under the First and
Fourteenth Amendments were not infringed by requiring them to
provide a forum for appellees to communicate with the public on
shopping center property. I concur in this judgment, but I agree
with MR. JUSTICE POWELL that there are other circumstances that
would present a far different First Amendment issue. May a State
require the owner of a shopping center to subsidize any and all
political, religious, or social action groups by furnishing a
convenient place for them to urge their views on the public and to
solicit funds from likely prospects? Surely there are some limits
on state authority to impose such requirements; and in this
respect, I am not in entire accord with 447 U.
MR. JUSTICE POWELL, with whom MR JUSTICE WHITE joins, concurring
in part and in the judgment.
Although I join the judgment, I do not agree with all of the
reasoning in 447 U. S.
Parts I-IV on the understanding that our decision is limited to the
type of shopping center involved in this case. Significantly
different questions would be presented if a State authorized
strangers to picket or distribute leaflets in privately owned,
freestanding stores and commercial premises. Nor does our decision
today apply to all "shopping centers." This generic term may
include retail establishments that vary widely in size, location,
and other relevant characteristics. Even large establishments may
be able to show that the number or type of persons wishing to speak
on their premises would create a substantial annoyance to customers
that could be eliminated only by elaborate, expensive, and possibly
unenforceable time, place, and manner restrictions. As the Court
observes, state power to regulate private property is limited to
the adoption of reasonable restrictions that "do not amount to a
Page 447 U. S. 97
just compensation or contravene any other federal constitutional
at 447 U. S.
Restrictions on property use, like other state laws, are invalid
if they infringe the freedom of expression and belief protected by
the First and Fourteenth Amendments. In Part V of today's opinion,
the Court rejects appellants' contention that "a private property
owner has a First Amendment right not to be forced by the State to
use his property as a forum for the speech of others."
at 447 U. S. 85
agree that the owner of this shopping center has failed to
establish a cognizable First Amendment claim in this case. But some
of the language in the Court's opinion is unnecessarily, and
perhaps confusingly, broad. In my view, state action that
transforms privately owned property into a forum for the expression
of the public's views could raise serious First Amendment
The State may not compel a person to affirm a belief he does not
hold. See Wooley v. Maynard, 430 U.
(1977); West Virginia State Board of
Education v. Barnette, 319 U. S. 624
(1943). Whatever the full sweep of this principle, I do not believe
that the result in Wooley v. Maynard, supra,
hanged had the State of New Hampshire directed its citizens to
place the slogan "Live Free or Die" in their shop windows, rather
than on their automobiles. In that case, we said that
"[a] system which secures the right to proselytize religious,
political, and ideological causes must also guarantee the
concomitant right to decline to foster such concepts."
430 U.S. at 430 U. S. 714
This principle, on its face, protects a person who refuses to allow
use of his property as a marketplace for the ideas of others. And I
can find no reason to exclude the owner whose property is "not
limited to [his] personal use. . . ." Ante
at 447 U. S. 87
person who has merely invited the public onto his property for
commercial purposes cannot fairly be said to have relinquished his
right to decline "to be
Page 447 U. S. 98
an instrument for fostering public adherence to an ideological
point of view he finds unacceptable." Wooley v. Maynard,
at 430 U. S. 715
As the Court observes, this case involves only a state-created
right of limited access to a specialized type of property.
at 447 U. S. 87
447 U. S. 87
But even when no particular message is mandated by the State, First
Amendment interests are affected by state action that forces a
property owner to admit third-party speakers. In many situations, a
right of access is no less intrusive than speech compelled by the
State itself. For example, a law requiring that a newspaper permit
others to use its columns imposes an unacceptable burden upon the
newspaper's First Amendment right to select material for
publication. Miami Herald Publishing Co. v. Tornillo,
418 U. S. 241
(1974). See also Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U. S.
, 412 U. S. 117
(1973) (plurality opinion). Such a right of access burdens the
newspaper's "fundamental right to decide what to print or omit."
Wooley v. Maynard, supra
at 430 U. S. 714
see Miami Herald Publishing Co. v. Tornillo, supra,
418 U. S. 257
As such, it is tantamount to compelled affirmation, and, thus,
presumptively unconstitutional. [Footnote 3/2
Page 447 U. S. 99
The selection of material for publication is not generally a
concern of shopping centers. But similar speech interests are
affected when listeners are likely to identify opinions expressed
by members of the public on commercial property as the views of the
owner. If a state law mandated public access to the bulletin board
of a freestanding store, hotel, office, or small shopping center,
customers might well conclude that the messages reflect the view of
the proprietor. The same would be true if the public were allowed
to solicit or distribute pamphlets in the entrance area of a store
or in the lobby of a private building. The property owner or
proprietor would be faced with a choice: he either could permit his
customers to receive a mistaken impression or he could disavow the
messages. Should he take the first course, he effectively has been
compelled to affirm someone else's belief. Should he choose the
second, he has been forced to speak when he would prefer to remain
silent. In short, he has lost control over his freedom to speak or
not to speak on certain issues. The mere fact that he is free to
dissociate himself from the views expressed on his property,
at 447 U. S. 87
cannot restore his "right to refrain from speaking at all."
Wooley v. Maynard, supra
at 430 U. S.
A property owner also may be faced with speakers who wish to use
his premises as a platform for views that he finds morally
repugnant. Numerous examples come to mind. A minority-owned
business confronted with leaflet distributors from the American
Nazi Party or the Ku Klux Klan, a church-operated enterprise asked
to host demonstrations in favor of abortion, or a union compelled
to supply a forum to right-to-work advocates could be placed in an
intolerable position if state law requires it to make its private
property available to anyone who wishes to speak. The strong
emotions evoked by speech
Page 447 U. S. 100
in such situations may virtually compel the proprietor to
respond. The pressure to respond is particularly apparent when the
owner has taken a position opposed to the view being expressed on
his property. But an owner who strongly objects to some of the
causes to which the state-imposed right of access would extend may
oppose ideological activities "of any sort" that are not related to
the purposes for which he has invited the public onto his property.
See Abood v. Detroit Board of Education, 431 U.
, 431 U. S. 213
431 U. S. 241
(1977). To require the owner to specify the particular ideas he
finds objectionable enough to compel a response would force him to
relinquish his "freedom to maintain his own beliefs without public
] Thus, the right to control one's own speech may be
burdened impermissibly even when listeners will not assume that the
messages expressed on private property are those of the owner.
One easily can identify other circumstances in which a right of
access to commercial property would burden the owner's First and
Fourteenth Amendment right to refrain from
Page 447 U. S. 101
speaking. But appellants have identified no such circumstance.
Nor did appellants introduce evidence that would support a holding
in their favor under either of the legal theories outlined
On the record before us, I cannot say that customers of this
vast center would be likely to assume that appellees' limited
speech activity expressed the views of the PruneYard or of its
owner. The shopping center occupies several city blocks. It
contains more than 65 shops, 10 restaurants, and a theater.
Interspersed among these establishments are common walkways and
plazas designed to attract the public. See ante
447 U. S. 77
447 U. S. 83
Appellees are high school students who set up their card table in
one corner of a central courtyard known as the "Grand Plaza." App.
to Juris.Statement B-2. They showed passersby several petitions and
solicited signatures. Persons solicited could not reasonably have
believed that the petitions embodied the views of the shopping
center merely because it owned the ground on which they stood.
Appellants have not alleged that they object to the ideas
contained in the appellees' petitions. Nor do they assert that some
groups who reasonably might be expected to speak at the PruneYard
will express views that are so objectionable as to require a
response even when listeners will not mistake their source. The
record contains no evidence concerning the numbers or types of
interest groups that may seek access to this shopping center, and
no testimony showing that the appellants strongly disagree with any
Because appellants have not shown that the limited right of
access held to be afforded by the California Constitution burdened
their First and Fourteenth Amendment rights in the circumstances
presented, I join the judgment of the Court. I do not interpret our
decision today as a blanket approval for state efforts to transform
privately owned commercial property into public forums. Any such
state action would raise substantial federal constitutional
questions not present in this case.
Cf. Lloyd Corp. v. Tanner, 407 U.
, 407 U. S. 569
(1972) ("property [does not] lose its private character merely
because the public is generally invited to use it for designated
Even if a person's own speech is not affected by a right of
access to his property, a requirement that he lend support to the
expression of a third party's views may burden impermissibly the
freedoms of association and belief protected by the First and
Fourteenth Amendments. In Abood v. Detroit Board of
Education, 431 U. S. 209
431 U. S. 235
(1977), we held that a State may not require a person "to
contribute to the support of an ideological cause he may oppose. .
. ." To require a landowner to supply a forum for causes he finds
objectionable also might be an unacceptable "compelled
subsidization" in some circumstances. Id.
at 431 U. S. 237
cf. Central Hardware Co. v. NLRB, 407 U.
, 407 U. S.
-545 (1972) ("property rights" may permit exclusion
of union organizers); NLRB v. Babcock & Wilcox Co.,
351 U. S. 105
351 U. S. 112
(1956) (same). See generally Eastex, Inc. v. NLRB,
437 U. S. 556
437 U. S.
-576 (1978); Hudgens v. NLRB, 424 U.
, 424 U. S.
-522 (1976). The appellants do not argue, however,
supports the claimed right to exclude speakers
from their property. Nor have they alleged that they disagree with
the messages at issue in this case. See infra
447 U. S.
The problem is compounded where, as in shopping centers or in
the lobby areas of hotels and office buildings, stores are leased
to different proprietors with divergent views.
In a proper case, the property owner also may be protected by
the principle that "a State has no business telling a man,
sitting alone in his own house, what books he may read or what
films he may watch." Stanley v. Georgia, 394 U.
S. 557, 394 U. S. 565
(1969). Observing that a State has no interest in controlling the
moral content of a person's thoughts, ibid., the Court in
Stanley invalidated a law imposing criminal penalties for
the private possession of obscenity. Stanley prevents a
State from removing from the home expressive materials that a
person may wish to peruse privately. The same principle may extend
to state action that forces individual exposure to third-party
messages. Thus, a law that required homeowners to permit speakers
to congregate on their front lawns would be a massive, and possibly
unconstitutional, intrusion into personal privacy and freedom of
belief. No such problem arises in this case.