What are the property rights of mall owners? — VOICES for REASON

Today, the Supreme Court will be deciding whether to accept an appeal involving the following scenario:

Forty-five people carrying placards and handing out leaflets show up inside a shopping mall.  Their message? Boycott the mall’s stores. When mall management asks them to leave, they refuse—and so the police throw them out. The boycotters sue the mall for interfering with their speech rights. They win.

What makes such a legal outcome possible? At bottom, it’s a certain conception of rights as entitlements to the property of others. On this view, the right of free speech is empty unless someone provides the speaker with a newspaper, a blog, a microphone—or, in this case, a mall full of shoppers. But that’s a perversion of rights. In reality, the right of free speech pertains only to freedom of action, on and with one’s own property (or the property of others who agree to allow its use). Because a shopping mall is private property, every visitor is there by permission of the owner. That owner has a moral right (which should be recognized legally, but isn’t) to forbid visitors from staging a boycott campaign on that property.

The case I’m talking about is Macerich Management Co. v. United Brotherhood of Carpenters. If the Supreme Court accepts the case, what’s the chance it will apply a proper view of rights? Zero.

For one thing, the boycotters in this case are members of a labor union. The Supreme Court has long upheld federal statutes giving union members a legal right to push their agenda on company premises, even if the employer (who’s also the property owner) disagrees.

But even worse, the Supreme Court has long held that owners of commercial property get second-class treatment when it comes to First Amendment protection. For example, in a 1980 case, PruneYard Shopping Center v. Robins, the Court held that the First Amendment does not offer any protection to private shopping malls against California law dictating that political messages may be spread inside mall premises.

On a proper view of rights, a shopping mall owner’s rights (to free speech and property) are infringed when boycotters can take over mall property for an opposing message. But the Macerich case will be decided by a Supreme Court that has lost sight of such basics.

Image: Wikimedia Commons