Brief Fact Summary. Students wanted to distribute literature at a large shopping center, but the owners wanted to deny them access to the property.
Synopsis of Rule of Law. A state law which requires owners of large shopping enters to allow members of the public to enter their property to distribute petitions does not constitute a taking of property, even though the law limits the property owner’s right to exclude others from its property.
Issue. When a large shopping center is required to allow free expression and petition on its property, will that amount to a taking?
The determination of whether a state law unlawfully infringes a landowner’s property in violation of the taking clause requires an examination of whether the restriction on private property forces some people alone to bear public burdens which, in all fairness and justice, should be born by the public as a whole. This includes inquiring into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations.
The requirement that appellants permit the students to exercise their protected rights of free expression and to petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property rights under the taking clause. It will not unreasonably impair the value or use of their property as a shopping center. The shopping center may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions.
Appellants have failed to show 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.
(Justice Thurgood Marshall) Justice Marshall did not understand why the Court suggested 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. Quite serious constitutional questions might be raised if a legislature attempted to abolish certain categories of common-law rights in some general way.
(Justice Lewis F. Powell, Jr.) The state may not compel a person to affirm a belief he does not hold. A property owner may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. The strong emotions evoked by speech in such situations may virtually compel the proprietor to respond.
Discussion. The property in this case is open to the public, very large, and the physical invasion is only temporary and confined to a small area. The interest of the owners of the shopping center is small compared to the right of expression.