PROPERTY B SLIDES

PROPERTY B SLIDES 2-6-19 National Frozen Yogurt Day

Music to Accompany JMB: Cyndi Lauper, Twelve Deadly Sins (1994) Next Few DF Sessions: • Lauren: Rev Prob. 1I • Today @ 9:40 Here • Friday @ 9:40 Here • Next Week: Rev Prob 1M • Brendan Monday @ 9:40 Here • Lauren Wednesday @ 9:40 Here New on Course Page • Chapter 2 Supplemental Materials (Part 1) • Updated Syllabus

Property Open to the Public& the Right to Exclude Generally: Your Money’s No Good Here Range of Possible Approaches & DQs 1.20-1.21 Brooks(& DQs 1.22-1.23) = Example of Q: Where on Continuum Should This Problem Fall? Free Speech Rights (Today -> Friday)

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 Purpose of Exclusion & Less Restrictive Alternatives Possible Harms to O in Brooks Include: • Professional Gamblers = (Maybe) Organized Crime • Reputed presence might discourage others from betting • Actual presence increases risk of actual crime • Expertise + Access to Funds  Loss of $$ for O? Should we treat this potential loss as a significant concern?

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.23 Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O: Significant Concern? • Could Characterize as • Inevitable Risk of ThisBusiness (i.e. “Tough!) –OR – • Potential Catastrophic Loss O Should Be Able to Limit • Fact on P79: Ps lost 110 out of 140 betting days: • Court may include this fact to suggest Ds are not big $$$ threat • BUT depends on amounts on days in Q; Ps could be millions ahead (only using inside info where big payoff at stake)

Right to Exclude: Parcels Open to the PublicBrooks & DQ1.22 Purpose of Exclusion & Less Restrictive Alternatives Expertise + Access to Funds  Possible Loss of $$ for O Possible less restrictive alternative to address this concern: Limit on amount one person can bet. Good Idea?

Right to Exclude: Parcels Open to the Public (Brooks & DQ1.22 ) Purpose of Exclusion & Less Restrictive Alternatives Possible less restrictive alternative: Limit on amount one person can bet. Good idea? • Treating all patrons alike; less chance of mistake BUT • Easy to get around by hiring multiple bettors (Though that’s also true if you try to exclude specific people). • Tracks may not like. Good for business to have big losses and [occasional] big wins • Note this is probably not kind of solution court can do; would need legislation or negotiation

Right to Exclude: Parcels Open to the Public: Brooks Purpose for Inclusion/Harms from Exclusive Signif. Publ. Interest in Allowing Access in Cases Like This? • Probably not much in ensuring professionals can bet large amounts in person at track • Concerns: Exclusion b/c mistake re identity or facts • E.g., Federal No-Fly Lists • E.g., NY case cited in Brooks (P80):Coley Madden mistaken for Owney Madden • Cf. Recurring Matt and Nick Concerns Here

Right to Exclude: Parcels Open to the Public: BrooksComparisons with Other Kinds of Businesses: Casinos Ps Asked Court in Brooksto Apply Uston • In Uston, NJ SCt seems to apply Innkeeper Rule to casinos • 7th Cir. Refuses to Apply • NJ Case; Not Followed in Illinois • NJ Doesn’t Extend to Racetracks Anyway • Could Also Distinguish on Facts • Card Counting = Skill Accessible to All (v. Inside Info on Horses/Jockeys) • Casinos Covered by Special Statutes/Licensing (so explicit regulatory power in state govt)

Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 Arguments re Extending Innkeeper Rules to Cover Stadiums & Racetracks Include: • Comparisons to Inns & Common Carriers (& Monopoly Theory) • Heavy state regulation & relatively few racetracks, so like monopoly • But probably less important than inns & common carriers to individual freedom/autonomy and to general economy • Not crucial at time of arrival; extortion of patrons unlikely • Less public interest in ensuring universal access. (Cf. Bottom of P80: Description of innkeeper & common carrier as “public callings”)

Right to Exclude: Parcels Open to the Public: Brooks: Comparisons with Other Businesses: DQ1.23 Arguments re Innkeeper Rules for Stadiums & Racetracks Include: • From the Court: • (P82) Suggestion that large open invitation might mean O should lose discretion. -BUT- • (P83) Suggestion that market forces here [& bad publicity] likely to discourage many types of arbitrary exclusions. • Not Noted in Readings: Often Significant Public Funding & Gov’t Support for Stadium Construction (Marlins); Could View as Implied Contract w Public for Access.

Right to Exclude: Parcels Open to the Public: Brooks: Closing Points • Other jurisdictions generally follow Brooks (even NJ) • Only Exception I Know is California Civil Rights Act • Language (2d para P85) looks like ordinary civil rights statute • Cal. SCt reads it to ban “arbitrary discrimination” of any kind (uniquely, list of characteristics is “inclusive” not exclusive) • E.g., Orloff (1951) (racetrack case) (not in materials) • Can’t exclude people w reputations for immoral character. • Person in Q had prior off-track gambling conviction & reputation as gambler/bookmaker.

Right to Exclude: Parcels Open to the Public: Brooks: Closing Points: Final Continuum • Can exclude anyone for any reason (Common Law re most businesses) • Can exclude for any reason except limited list of forbidden characteristics (Typical Civil Rights Statutes) • No “arbitrary discrimination.” (California Civil Rights Act) • Must accept anyone who shows up w $$ unless specific prior harmful conduct. (Common Law Innkeeper Rule & maybe casinos under Uston). Qs on Brooks or the Continuum?

Property Open to the Public & the Right to Exclude Generally: Your Money’s No Good Here Free Speech Rights JMB (including Schmid) & DQ 1.24-1.28 Review Problems

Right to Exclude: Parcels Open to the PublicTransition Quote (N.3 on P84) “[T]he more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property .” --Ustonquoting State v. Schmid.

Right to Exclude: Parcels Open to the PublicJMB: Overview • NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues. • Our Coverage • Relevant Interests (ACADIA: DQ1.24-1.25) • Logic of Opinion (Me) • Application in Future Problems • Permissible Regulation (ACADIA: DQ1. 26) • Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

BADLANDS E-Participation: DQ1.28E-Mail Your Response to Me by 9:00 p.m. Thursday Night DQ1.28. Can you formulate a rule or a set of standards for when a business generally open to the public should be prevented from excluding particular individuals or activities? Ferreiro * Meric * Portes Romero * Pryor * Zipper • Submit version of what you had prepared for this DQ • Needs to be clear (not pretty) • Can include bullet points, abbreviations, etc. • I’ll write up some comments & make available to all in Info Memo soon

Acadia: DQs 1.24-1.25 Acadia Sunrise

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) Possible harms to the owners in JMB: Forced Speech Psychic Harm Interference with Business

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Possible harms to the owners in JMB: • Forced Speech • 1stAmdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with • Are shoppers likely to view protestor speech that way?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24 O’s Interests (Acadia) • Possible harms to the owners in JMB: • Forced Speech • 1stAmdt Claim: Shoppers will assume leafletters speak for management, so Os effectively forced to say things they disagree with • I’m skeptical that shoppers would view that way, tho nice Mendez idea thast may depend on whether they know law forces malls to allow. • Court rejects this claim in portion of opinion not in book.

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Possible harms to the owners in JMB: • Forced Speech (claim rejected by NJSCt) • Psychic Harm • Feelings of Lack of Control Over Property • Made Worse by Speech if Os Disagree • NOTE: Genuine, but Hard to Quantify • Likely to be Very Significant in this Context?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Possible harms to the owners in JMB: • Forced Speech (claim rejected by NJSCt) • Psychic Harm • Would have to convince court that would make significant difference w lots of other people at mall & very broad public invitation • No claims, e.g., re privacy. • Plus can exclude completely when mall is closed • Interference with Business: • Specific Concerns?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Specific Business Concerns Include: • Customers May Not Like  Go Elsewhere • Interference w Traffic Patterns/Access to Particular Tenants • Clean-Up • Security/Monitoring • Tort Liability  Insurance • How significant are these harms likely to be?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Points re Significance of Specific Business Concerns: • Customers may not like, BUT if at all malls, they’ll get used to & other malls won’t be better choices • Interference w Traffic & Access Might Be Problem • BUT Probably Ways to Address without Complete Exclusion • Not Like Foot Traffic Always Flows Smoothly in Malls!! • Average Daily Traffic = 28,750 People • Unlikely to Significantly Impact Clean-Up, Security, etc. • Tort Liability  Insurance Premiums (I bet near-zero effect) • Note Lack of Specificity in Case re Harms to Malls (Lawyering Point)

Right to Exclude: Parcels Open to the PublicJMB: DQ1.24: O’s Interests (Acadia) • Identifying O’s legitimate business interests helps you identify less restrictive alternatives to exclusion • Goes to “Reasonable Restrictions” Allowed by JMB • E.g., DQ1.27, Rev. Probs 1J & 1M • Business Concerns Articulated in Dissent (Garibaldi, J.) • Note 3 incorrect; Justice Garibaldi = “her” not “him” • Anyone Know Historical Irony of a person named “Garibaldi” Taking This Position?

GARIBALDIS JUSTICE MARIE, DISSENTING LIBERATOR GIUSEPPE

Right to Exclude: Parcels Open to the PublicJMB: DQ1.25: Public Interest (Acadia) What benefits to society might there be to allowing political activists to hand out leaflets at privately-owned shopping centers?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.25: Public Interest (Acadia) • Interests of Public in Speech at Malls Include: • Speakers Get Access to Folks They Might Not Otherwise Reach • Few Traditional Public Spaces in Suburbs • Maybe Can Target Speech to People with Particular Interests (near specific stores, etc.) • How significant are these benefits likely to be?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.25: Public Interest (Acadia) • Interests of Public in Speech at Malls: • Speakers Get Access to Folks They Might Not Otherwise Reach • Significance is Fact Q: Likely varies greatly with locality • J. Garibaldi suggests not very significant. • BUT maybe most cost-effective way to reach public in SUBURBSwhen opinion decided in 1994 (Just Before Widespread Public Internet Access) • How Might Internet Change Calculus of Relevant Interests?

Right to Exclude: Parcels Open to the PublicJMB: DQ1.25: Public Interest (Acadia) • Interests of Public in Speech at Malls: • 1994 = Just Before Widespread Public Internet Access • Internet May Change Calculus of Relevant Interests • Maybe Os’ Interests : Shoppers Irritated by Political Leafletters Can Shop Online Instead of at Malls • Maybe Public Interest : Internet Means Less Need to Access Malls to Spread Points of View • Good exercise for you to imagine how you’d reargue the case in the light of the current uses of the Internet.

Right to Exclude: Parcels Open to the PublicJMB: Overview • NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues. • Our Coverage • Relevant Interests (ACADIA: DQ1.24-1.25) • Logic of Opinion (Me) • Application in Future Problems • Permissible Regulation (ACADIA: DQ1. 26) • Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background • Federal Cases (Discussed in JMB P88-89): • Marsh: Company town: 1stAmdt applies • Logan Valley extended Marsh to shopping centers • Tanner & Hudgensoverrule Logan Valley & hold shopping centers are private space not addressed by federal 1st Amdt

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background • Federalv. State Constitutions • Federal Constitution limits both state & federal govt power • State Constitutions • Can’t permit what Feds prohibit • BUT State can choose to restrict itself more than Feds do • E.g., by forbidding its own police from doing some searches and seizures allowed by 4thAmdt • E.g., by protecting speech more than Fedl 1stAmdt

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background • Federalv. State Constitutions • Federal Constitution limits both state & federal govt power • State Constitutions • Can’t permit what Feds prohibit. • BUT State can choose to restrict itself more than Feds do. ADDITIONAL SPEECH PROTECTED BY STATE 1ST AMDT SPEECH PROTECTED BY FED’L 1ST AMDT

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background Pruneyard(Cal. 1979) aff’d (US 1980) • CalifSCtsays its state 1stAmdtprotects speech more than Fedl 1stAmdtand gives its citizens the right to free speech in Shopping Centers • Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5th and 14thAmdts of Fedl Constitution:

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background Pruneyard(Cal. 1979) aff’d(US 1980) • CalifSCtsays its state 1stAmdtprotects speech more than Fedl 1stAmdtand gives its citizens the right to free speech in Shopping Centers • Shopping Center Os appeal claiming that Calif allowing this access interferes with property rights in violation of 5th and 14thAmdts of Fedl Constitution: • USSCtsays no violation of FedlConstitution • Effectively leaves states with choice of whether to provide state protection for speech at shopping centers: • Federal 1stAmdt allows (but doesn’t require) • Federal 5th/14thAmdts don’t forbid

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background • Federalv. State Constitutions • Federal Constitution limits both state & federal govt power • State Constitutions • Can’t permit what Feds prohibit • BUT State can restrict itself more GOVT ACTIONS BANNED BY FED’L 5th AMDT Property Rts SPEECH PROTECTED BY FED’L 1ST AMDT BETWEEN FED’L REQUIREMENTS = ZONE OF STATE CHOICE

Right to Exclude: Parcels Open to the PublicLogic of JMB: Constitutional Background • In JMB, NJ follows Calif & says its state 1stAmdtgives its citizens the right to free speech in Shopping Centers • Calif & NJ only states to do this through state 1stAmdt. • Mass & Colo & Wash (limited; see FN1 on P93-94) allow speech access to shopping centers on other theories. • Other states do not allow speech access to shopping centers (as of time 2d edition of textbook went to press).

Right to Exclude: Parcels Open to the PublicLogic of JMB: Reasoning (SchmidAnalysis) • JMB Follows & Applies Schmid(NJ 1980) • Schmid : Free Speech access to Princeton Univ. • (Private property often open to public) • Case described in detail on P89-90 • Note: USSCt dismissed appeal in Schmid (see cite on P89) • Appeal raised same type of fedl property rts claim made unsuccessfully in Pruneyard • As landowner could perhaps try re Shack

Right to Exclude: Parcels Open to the PublicLogic of JMB: Reasoning (SchmidAnalysis) • SchmidTest (P90) • Use to decide when 1stAmdt requires access to private property open (for some purposes) to public • Can use by analogy for other limits on Right to Exclude (e.g., for Qs raised in Brooks or Shack) • Once access allowed, test largely unhelpful for deciding what restrictions allowable; Schmidjust says they must be “reasonable”

Right to Exclude: Parcels Open to the PublicLogic of JMB: Reasoning (SchmidAnalysis) SchmidTest (P90) (1) Normal Use of Private Property in Q (2) Extent & Nature of [Public] Invitation (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” Meaning of 1st Two Factors Relatively Clear

Right to Exclude: Parcels Open to the PublicLogic of JMB: Reasoning (SchmidAnalysis) • SchmidTest (P90) • (3) “[P]urpose of the expressional activity … in relation to both the public & private use of the property” • (P91) This factor: “examines the compatibility of the free speech sought with the uses of the property.” Means? • 2014 student argument : compatibility as subjective: seeming to fit (like human relationship) (reasonable interpretation of language) • BUT Discussion in JMB seems to focus more on whether speech causes objective harm to existing uses.

Right to Exclude: Parcels Open to the PublicLogic of JMB: Reasoning (SchmidAnalysis) • JMB Follows & Applies Schmid • in Granting Free Speech Access to Malls • Note importance of analogy to town square. • Note importance of very broad invitation by malls. • Court (P92) explicitly says it is drawing on common law as well as NJ 1stAmdt • Cites/discusses Shack • Again suggests can use JMB/Schmidto support other kinds of limits on rtexcl besides 1stAmdt • Qs on JMB Reasoning?

Right to Exclude: Parcels Open to the PublicJMB: Overview • NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues. • Our Coverage • Relevant Interests (DQ1.24-1.25) • Logic of Opinion • Application in Future Problems • Permissible Regulation (ACADIA: DQ1. 26) • Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

Acadia: DQ 1.26 Acadia Sunrise

Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude (Acadia) • Assume JMB or PruneyardApplies: What Specifically Can/Can’t Mall Owners Do to Address Protestors • DQ1.26: You represent the owners of a relatively small NJ mall. What would you tell your clients re the following Qs about J.M.B.? • Assume no additional cases or regulations • Helpful to point to specific evidence from facts, language, logic of case. • OK to use common sense (e.g., seems pretty unlikely that could limit protestor access to top floor of parking garage).

Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(a) (Acadia): Does case open up all malls in the state to protestors or will its application be determined on a case-by-case basis for each mall? (Evidence from JMB?)

Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(a) (Acadia): Will application of JMB be determined on a case-by-case basis? Evidence includes: • All malls addressed in original case quite large • “Regional” or “Community” Shopping Centers • At least 71 stores & 27 acres (P87-88) • Ruling “limited to leafletting at such centers” (1st paragraph P86) • BUT: Likely no need to redo analysis for other large malls.

Right to Exclude: Parcels Open to the PublicJMB, Schmid& Scope of Right to Exclude DQ1.26(a) (Acadia): Will application of JMB be determined on a case-by-case basis? Evidence includes: • Schmid analysis consistent with case-by-case • Check for smaller public invitation [than large malls] • Check for less compatibility [than large malls] • Note: No need to redo Schmidanalysis for large malls or for large open private universities (like UM or Princeton) unless good reason to believe invitation or compatibility different.

PROPERTY B SLIDES