Amicus Brief: Majestic Realty v. Salazar

Alex Salazar wanted to distribute leaflets on the property of two adjoining shopping centers. The shopping centers have a policy prohibiting expressive activity on their property, including leafletting. Salazar sued, arguing that he has the right to leaflet at private shopping centers based on the California Constitution's liberty of speech provision and a Supreme Court case called PruneYard.

PruneYard is a 1980 decision that is very aberrant in First Amendment law. The Court held that private property owners can sometimes be required to allow speakers to use their property for petitioning and other types of speech. Generally, of course, private property owners can tell a speaker to leave, so the opinion has long been subject to criticism.

Majestic Realty lost at California Court of Appeals and the California Supreme Court denied review. The shopping centers now ask the Supreme Court to review the case to revisit PruneYard, and the Manhattan Institute has filed a brief in support. Supreme Court precedent has changed a lot since PruneYard, particularly the decision in Cedar Point Nursery, in which the Court held that California could not mandate that businesses have to allow union organizers on their property. We argue that Cedar Point controls this case, and the Court shouldn't have any compunctions about overruling PruneYard. Private property owners cannot be compelled to give up their right to exclude speakers and to welcome a stranger’s free expression. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Yonah Berenson