1. 2-6-19 National Frozen Yogurt Day
PROPERTY B SLIDES
2-6-19
National Frozen Yogurt Day

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

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

4. Right to Exclude: Parcels Open to the Public Brooks & 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?

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

6. Right to Exclude: Parcels Open to the Public Brooks & 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?

7. 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

8. 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

9. Ps Asked Court in Brooks to Apply Uston
Right to Exclude: Parcels Open to the Public: Brooks Comparisons with Other Kinds of Businesses: Casinos
Ps Asked Court in Brooks to 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)

10. 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”)

11. Arguments re Innkeeper Rules for Stadiums & Racetracks Include:
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.

12. 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.

13. Qs on Brooks or the Continuum?
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?

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

15. --Uston quoting State v. Schmid.
Right to Exclude: Parcels Open to the Public Transition 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 .”
--Uston quoting State v. Schmid.

16. 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 (ACADIA: DQ )
Logic of Opinion (Me)
Application in Future Problems
Permissible Regulation (ACADIA: DQ1. 26)
Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

17. Ferreiro * Meric * Portes Romero * Pryor * Zipper
BADLANDS E-Participation: DQ1.28 Your Response to Me by 9:00 p.m. Thursday Night
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?
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

18. Acadia: DQs
Acadia Sunrise

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

20. Possible harms to the owners in JMB:
Right to Exclude: Parcels Open to the Public JMB: DQ1.24: O’s Interests (Acadia)
Possible harms to the owners in JMB:
Forced Speech
1st Amdt 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?

21. Possible harms to the owners in JMB:
Right to Exclude: Parcels Open to the Public JMB: DQ1.24 O’s Interests (Acadia)
Possible harms to the owners in JMB:
Forced Speech
1st Amdt 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.

22. Possible harms to the owners in JMB:
Right to Exclude: Parcels Open to the Public JMB: 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?

23. Possible harms to the owners in JMB:
Right to Exclude: Parcels Open to the Public JMB: 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?

24. How significant are these harms likely to be?
Right to Exclude: Parcels Open to the Public JMB: 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?

25. Points re Significance of Specific Business Concerns:
Right to Exclude: Parcels Open to the Public JMB: 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)

26. Right to Exclude: Parcels Open to the Public JMB: DQ1
Right to Exclude: Parcels Open to the Public JMB: 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?

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

28. Right to Exclude: Parcels Open to the Public JMB: DQ1
Right to Exclude: Parcels Open to the Public JMB: 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?

29. How significant are these benefits likely to be?
Right to Exclude: Parcels Open to the Public JMB: 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?

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

31. Interests of Public in Speech at Malls:
Right to Exclude: Parcels Open to the Public JMB: 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.

32. 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 (ACADIA: DQ )
Logic of Opinion (Me)
Application in Future Problems
Permissible Regulation (ACADIA: DQ1. 26)
Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

33. 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

34. 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

35. 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

36. 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:

37. 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

38. 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

39. 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).

40. 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

41. 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”

42. 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

43. 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.

44. 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?

45. 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 in Future Problems
Permissible Regulation (ACADIA: DQ1. 26)
Relation to Other Right to Exclude Problems (Me & BADLANDS: DQ1.27)

46. Acadia: DQ 1.26
Acadia Sunrise

47. Right to Exclude: Parcels Open to the Public JMB, Schmid & Scope of Right to Exclude (Acadia)
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).

48. Right to Exclude: Parcels Open to the Public JMB, 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?)

49. Right to Exclude: Parcels Open to the Public JMB, 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.

50. Right to Exclude: Parcels Open to the Public JMB, 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 Schmid analysis for large malls or for large open private universities (like UM or Princeton) unless good reason to believe invitation or compatibility different.