1. 2-13-17 NATIONAL TORTELLINI DAY
PROPERTY A SLIDES
NATIONAL TORTELLINI DAY

2. Indigo Girls, Swamp Ophelia (1994)
More Music to Accompany JMB:
Indigo Girls, Swamp Ophelia (1994)
DF Coverage
This Week:
Rev. Prob 1O(ii) (FL MW Stat)
Rev. Prob. 1J (JMB Regs)
Next Week:
Rev. Prob 1P (XQ1: JMB/Schmid)
Rev. Prob. 2B (Tenant Eviction)
Added to Info Memo #2 -- Write-Ups of DQ1.19(e) & (f) -- Write-Ups of Rev. Probs: 1C, 1D, 1F. 1H, 1N

3. MONday Pop Culture Moment
As Valentine’s Day Approaches:
Way Too Much
Part Two
(featuring the Voice Talents of Steven Hollis)

4. Every kiss begins with Kay®

5. I’ve seen those Kay Jewelers ads …

6. … but frankly, if I give someone a $5000 diamond bracelet, …

7. … I’m looking for a little more than a kiss. That’s why I shop at …

8. Taking Care of Your Family Jewels
Eff Jewelers
Taking Care of Your Family Jewels

9. Previously in Property A
Right to Exclude & MWs:
Under Shack: Rev. Prob. 1C (AMIT; in DF)
FL Statutes
Content, Operation, Comparison to Shack
Review Problem 1H (Mowgli)
1st Lawyering Problem:
[Intro to XQ1]
Rev.Prob. 1N (Religious/Social Event)

10. Previously in Property A
Rt to Exclude & Parcels Open to Public
Your Money’s No Good Here: Continuum
Common Law (No Limits or Innkeeper’s Rule)
Civil Rights Statutes
Brooks
JMB & First Amendment Access to Malls
Started Owner’s Interests

11. Course Outline/Schedule: Big Picture
Logistics
Course Outline/Schedule: Big Picture
Ch.2: Landlord-Tenant (Selected Issues) This Year Includes Fair Housing Material
Statutes, Case, Problems
DQ : Work thru Statutory Language
For You to Do on Your Own (Good Group Exercise)
I’ll Post Answers After Thursday’s Class
Mostly For Gen’l Understanding, but Usable on Exam (especially in XQ1)

12. Course Outline/Schedule: Big Picture
Logistics
Course Outline/Schedule: Big Picture
Ch.2: Includes Fair Housing Material
To Make Room and Avoid Rushing Later:
Will NOT Do Chapter on Wills/Intestacy (I’ll Provide Brief Overview in Estates Chapter)
Sequence for Rest of Course:
Chapter 4  3: Estates & Future Interests
Chapter 5  4: Adverse Possession
Chapter 6  5: Easements

13. Course Outline/Schedule: Big Picture
Logistics
Course Outline/Schedule: Big Picture
As I Thought, Your 1st Exam is Property
Last Scheduled Day of Classes = Tuesday 4/25
Property Exam = Morning of Friday 4/28
To Help with Your Exam Prep, We’ll…
Add Class Fri 4/21(Completing All Readings)
Make Class Mon 4/24 Final Class = Rev Probs/Closing Lecture
Replace Class Tues 4/25 w Review Session

14. Qs re Exam Prep/Review Problems
Logistics
Qs re Exam Prep/Review Problems
Neither DG nor I can determine best way for you to prepare for exams.
As we finish review problems in class or DF, I am posting comments & best student answers on course page.
Best answers = best 2-3 of student work under exam conditions (lightly edited)
Look at these to see length/format/organization/content /level of detail I liked
If you are unsure, ask me Qs about eithert substance or style
Think about how to get yourself ready to write similarly strong answers

15. FINAL EXAM QUESTIONS Choose Three of Four
XQ1: LAWYERING
XQ2: SHORT ANSWERS (Choose Three of Four)
XQ3: OPINION/DISSENT
XQ4: TRADITIONAL ISSUE-SPOTTER
Rev. Prob. 1O is 1st Example (About Half of 60-Minute Q)

16. FINAL EXAM QUESTION 4 ISSUE-SPOTTER
Generally 2-4 Major Subjects, Sometimes Specifically Identified in Sub-Questions
Long Fact Pattern (Unlike XQ1, Not Broken Up into Sepate Sections by Topic)
At Least One Statutory Issue
Look at Examples in Posted Exams

17. FINAL EXAM QUESTION 4 ISSUE-SPOTTER
Relevant Skills Include …
Recognizing Relevant Legal Issues in Long Story
* Identifying Most Important (= Most Contested) Topics & Making Best Arguments for Each Party
Recognizing Significance of Facts in Problem
Presenting Analysis in Organized Way
Working with Relevant Statute[s]

18. Chapter 2. Leased But Not Last: Selected Issues in Landlord/Tenant Law
The Importance of Context: (Brief Intro Lecture Tomorrow)
The Landlord’s Right to Exclude (& Legitimate Interests of Tenants)
Eviction Under the Florida Statutes
Statutory Anti-Discrimination Law
The Right to Transfer
Habitability & Related Issues

19. Intro to Review Problem 2A: Tim’s Party
Tim = Tenant & College Student
Holds Big Party at Apt.  Noise; Police Arrest 2 Friends
No Prior Violations of Lease or Statute
Assume Violation of Fl. Stat.:
Tenant's obligation to maintain dwelling unit. The tenant at all times during the tenancy shall … (7) Conduct himself or herself, and require other persons on the premises with his or her consent to conduct themselves, in a manner that does not unreasonably disturb the tenant's neighbors or constitute a breach of the peace.
Can Linda (Landlord) Evict Tim for the Party?

20. Review Problem 2A: Tim’s Party
Termination of rental agreement …
(2) If the tenant materially fails to comply with §83.52 or material provisions of the rental agreement, other than a failure to pay rent, or reasonable rules or regulations, the landlord may:
(a) [Terminate immediately] If such noncompliance is of a nature that the tenant should not be given an opportunity to cure it or if the noncompliance constitutes a subsequent or continuing noncompliance within 12 months of a written warning by the landlord of a similar violation
(b) [Give Seven Days to Cure & Terminate if Not Cured or Repeated w/in one Year] If such noncompliance is of a nature that the tenant should be given an opportunity to cure it, …

21. Review Problem 2A: Tim’s Party
Termination of rental agreement …
(2) (a) [Terminate immediately] … Examples of noncompliance which are of a nature that the tenant should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the landlord's or other tenants' property by intentional act or a subsequent or continued unreasonable disturbance.
(b) [Give Seven Days to Cure & Terminate if Not Cured or Repeated w/in one Year] … Examples of such noncompliance include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

22. Review Problem 2A: Tim’s Party
Example of Common Statutory Problem
Statute Creates Two Non-exclusive Categories; Into Which Category Does Tim’s Conduct Fit?
Common Types of Argument for This Kind of Issue:
Literal: Within language of either (a) or (b)? [Party really neither]
Comparison (Sub-Qs 1+2): More like terms listed in (a) or in (b)? [Characterization issue.]
(III) Policy (Sub-Qs 3+4): Should this behavior (without more ) be enuf for eviction [Think about relevant interests of both Ldld & Tnt.]
Not Every Statutory Issue Uses This Approach. E.g., Nothing in FL MW Statutes or FHA Creates Two Non- Exclusive Categories

23. Literal: Within language of either (a) or (b)? Here = No.
Review Problem 2A
Literal: Within language of either (a) or (b)? Here = No.
Examples … that the TNT should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the LDLD's or other TNTs' property by intentional act or a subsequent or continued unreasonable disturbance.
Examples [that TNT should be given opportunity to cure] include, but are not limited to, activities in contravention of the lease or this act such as having or permitting unauthorized pets, guests, or vehicles; parking in an unauthorized manner or permitting such parking; or failing to keep the premises clean and sanitary.

24. Literal: Within language of either (a) or (b)?
Review Problem 2A
Literal: Within language of either (a) or (b)?
Common Problems
Examples … that the TNT should not be given an opportunity to cure include, but are not limited to, destruction, damage, or misuse of the LDLD's or other TNTs' property
by intentional act [only refers to destruction, damage, misuse]
or a subsequent or continued unreasonable disturbance [means after a prior notice pursuant to 83.56(2)(b) .

25. Literal: Within language of either (a) or (b)?
Review Problem 2A
Literal: Within language of either (a) or (b)?
Common Problems
Examples [that TNT should be given opportunity to cure] include, but are not limited to,
activities in contravention of the lease [doesn’t mean any lease violation, but rather violations like the nes on the list that follows]
or this act such as having or permitting unauthorized pets, guests, or vehicles….

26. Property Open to the Public & the Right to Exclude
Generally: Your Money’s No Good Here
Free Speech Rights
JMB (including Schmid) & DQ (OLYMPIC) (cont’d)
Review Problems
In Class: 1L (Everglades Tomorrow) & 1M (Badlands Thurs)
In DF: 1J (This Week) & 1P (Next Week)

27. OLYMPIC: DQs cont’d
EEL GLACIER

28. Delgado * Kafka * Meruelo * Zuckerman
OLYMPIC E-Participation: DQ1.28 Your Response to Me by 9:00 p.m. Tonight
DQ 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?
Delgado * Kafka * Meruelo * Zuckerman
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

29. Right to Exclude: Parcels Open to the Public JMB: Overview
NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues.
Our Coverage
Relevant Interests (DQ ) (cont’d)
Logic of Opinion (Me)
Application in Future Problems

30. Possible harms to the owners in JMB:
Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Olympic)
Possible harms to the owners in JMB:
Forced Speech: (Last Time) Court said not serious concern
Psychic Harm: (Last Time): Unlikely to be significant where
Thousands of people at big malls when open
Can completely exclude when closed
Interference with Business
Specific Concerns?

31. How significant are these harms likely to be?
Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Olympic)
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?

32. Points re Significance of Specific Business Concerns:
Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Olympic)
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)

33. Right to Exclude: Parcels Open to the Public JMB: DQ1
Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Olympic)
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?

34. JUSTICE MARIE, DISSENTING
GARIBALDIS
JUSTICE MARIE, DISSENTING
LIBERATOR GIUSEPPE

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

36. How significant are these benefits likely to be?
Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic)
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?

37. Interests of Public in Speech at Malls:
Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic)
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 SUBURBS when opinion decided in 1994 (Just Before Widespread Public Internet Access)
How Might Internet Change Calculus of Relevant Interests?

38. Interests of Public in Speech at Malls:
Right to Exclude: Parcels Open to the Public JMB: DQ1.25: Public Interest (Olympic)
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

39. Right to Exclude: Parcels Open to the Public JMB: Overview
NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues.
Our Coverage
Relevant Interests (DQ ) (cont’d)
Logic of Opinion (Me)
Application of JMB & Schmid

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

41. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
Federal v. 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 4th Amdt
E.g., by protecting speech more than Fedl 1st Amdt

42. SPEECH PROTECTED BY STATE 1ST AMDT SPEECH PROTECTED BY FED’L 1ST AMDT
Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
Federal v. 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

43. Pruneyard (Cal. 1979) aff’d (US 1980)
Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
Pruneyard (Cal. 1979) aff’d (US 1980)
Calif SCt says its state 1st Amdt protects speech more than Fedl 1st Amdt and 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 14th Amdts of Fedl Constitution:

44. Pruneyard (Cal. 1979) aff’d (US 1980)
Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
Pruneyard (Cal. 1979) aff’d (US 1980)
Calif SCt says its state 1st Amdt protects speech more than Fedl 1st Amdt and 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 14th Amdts of Fedl Constitution:
USSCt says no violation of Fedl Constitution
Effectively leaves states with choice of whether to provide state protection for speech at shopping centers:
Federal 1st Amdt allows (but doesn’t require)
Federal 5th/14th Amdts don’t forbid

45. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
Federal v. 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

46. Right to Exclude: Parcels Open to the Public Logic of JMB: Constitutional Background
In JMB, NJ follows Calif & says its state 1st Amdt gives its citizens the right to free speech in Shopping Centers
Calif & NJ only states to do this through state 1st Amdt.
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).

47. JMB Follows & Applies Schmid (NJ 1980)
Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis)
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

48. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis)
Schmid Test (P90)
Use to decide when 1st Amdt 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; Schmid just says they must be “reasonable”

49. Meaning of 1st Two Factors Relatively Clear
Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis)
Schmid Test (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

50. Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis)
Schmid Test (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.

51. JMB Follows & Applies Schmid in Granting Free Speech Access to Malls
Right to Exclude: Parcels Open to the Public Logic of JMB: Reasoning (Schmid Analysis)
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 1st Amdt
Cites/discusses Shack
Again suggests can use JMB/Schmid to support other kinds of limits on rt excl besides 1st Amdt
Qs on JMB Reasoning?

52. Right to Exclude: Parcels Open to the Public JMB: Overview
NJSCT holds that large shopping centers must permit protestors to have access to hand out leaflets on social issues.
Our Coverage
Relevant Interests (DQ )
Logic of Opinion
Application of JMB & Schmid

53. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
[Pruneyard]/JMB/Schmid Yield /Address Two Types of Qs
ACCESS: When Does Public Get Access to Private Property for Free Speech [or Other Important Public Interests]?
RESTRICTIONS: If Public Gets Access, What Restrictions Can Landowners Impose to Protect Their Legitimate Interests ?
Exam Problems Might Address Either or Both

54. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude: ACCESS Qs
ACCESS: Use Schmid & JMB to Help Determine if Right to Exclude Should be Limited in Particular Context for Speech Rights or Other Public Policy Considerations
I’m not going to ask you to decide from scratch what scope of state’s 1st Amdt should be.
Might ask you to assume Schmid/JMB are good law & apply to different claims of free speech access (e.g., Rev. Probs 1L, 1O(Part i), 1P).
Might give you more general Q on scope of right to exclude & you could use Schmid/JMB as one way to analyze (e.g., Rev. Prob. 1K, DQ1.27).
For you on your own: I’ve added following slide with list of some relevant considerations

55. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
Scope of Right to Exclude in New Situations: Possible Relevant Considerations (Could Also Use for Non-1st Amdt Speech Access)
Protection of Disadvantaged Groups. E.g.,
Anti-Discrimination Law
Shack & MWs
Relationship to Gov’t or Law
Implied K from Support of Govt for creation or operation of enterprise
B/c Rt to Excl derives from state common law in 1st instance, arguably can’t be used in way that violates public policy (Shack)
Economic Concerns
Monopoly Concern w Innkeeper Rule
Furthering Commerce w Innkeeper Rule
Protecting O’s Economic Interests (Shack & JMB)

56. DQ 1.27: Apply Schmid & JMB to Issue in Shack
Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude: ACCESS Qs
DQ 1.27: Apply Schmid & JMB to Issue in Shack
(1) Apply Schmid Test
(2) Apply JMB
Compare Shack to Facts of JMB
Relevant Language & Policy Concerns from JMB
I’ll Leave for You

57. Preview of Review Problem 1L: Short Problem (Everglades Tomorrow)
Free Speech Access to Professional Baseball Stadium
Asked if Os Can Exclude Person Wearing “Protest Shirt”, so Primarily About Access (Not Regulations)
Told Schmid/JMB Govern, so Brooks Not Relevant
Prepare Application of 3 Parts of Schmid Test
Think About Strength of Relevant Interests of Os and of CC (the Protesttor)

58. Assuming Free Speech Access:
Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude: Restrictions
Assuming Free Speech Access:
What Restrictions Can [Mall] Owners Place on Protestors
Note Parallel to Allowable Regulations/Restrictions in MW Problems under Shack & FL Statute
Qs/Problems Addressing Restrictions Alone:
DQ1.26 (Olympic Next)
Rev Prob 1J (DF This Week): Should Assume Access to “Large Mall” in NJ
Problems Addressing Both Access & Restrictions Alone:
Lawyering: Rev Probs 1M (Badlands Thursday) & 1P (DF Next Week)
Part of Issue-Spotter: Rev Prob 1O(Part i)

59. OLYMPIC: DQ1.26
EEL GLACIER

60. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude (OLYMPIC)
Assume JMB or Pruneyard Applies: 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).

61. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
DQ1.26(a) (Olympic):
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?)

62. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
DQ1.26(a) (Olympic): 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.

63. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
DQ1.26(a) (Olympic): 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 Schmid analysis for large malls or for large open private universities (like UM or Princeton) unless good reason to believe invitation or compatibility different.

64. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude
MAF: DQ1.26(b): Assuming the case governs, do all political/protest groups have to be treated alike?
Evidence includes:
Common Sense: Can exclude groups if significant problems during past visits.
Otherwise: Basis in 1st Amdt
Might suggest treating all groups/messages the same
BUT (P92) refers to anti-war protest as “most substantial” and “central to the purpose” of 1st Amdt interests; leaves room for argument about other issues.