The Goldwater Institute this week filed a brief with the U.S. Supreme Court asking it to overturn a 1980 case that lets people exercise free speech rights by trespassing on private property. The case, PruneYard v. Robins, ruled that the Fifth Amendment's takings clause wasn't violated when governments stopped shopping mall owners from blocking people who wanted to gather petition signatures or engage in other expressive activities on their land. The institute argues that this 40-plus-year-old precedent creates a false conflict between property rights and free speech—and that it's time for the Supreme Court to put it to rest.
The original PruneYard decision held that states can give people the "right" to go onto someone else's land against the owner's will to engage in free speech activities. In the decades since 1980, the Supreme Court has overruled major aspects of that decision, and state courts have almost entirely rejected it—yet it remains on the books. Just two years ago, in Moody v. NetChoice, people cited PruneYard to argue that if shopping mall owners can be forced to let petition circulators on their land, then companies like X or Facebook can be forced to publish content they disapprove of. The new lawsuit involves a petition circulator in California who filed suit arguing he should be allowed onto private shopping center land to circulate petitions, with state courts siding with him based on the old precedent.
The brief states that PruneYard's central problem was ignoring what philosophers call "compossibility"—the principle that individual rights never contradict one another and that it should always be possible for two people to exercise their rights without intruding on each other's freedom. According to the institute, "it isn't free speech to force someone else to help you spread your message," comparing the situation to forcing people to pay for someone's microphone. Timothy Sandefur, the Vice President for Legal Affairs at the Goldwater Institute, writes in the brief that the ruling "failed to address the central issue—whether private property becomes public just because people shop there—and its takings analysis is now entirely obsolete."
The institute's argument rests on a fundamental shift in how the Supreme Court has approached compelled speech since 1980. The Court has made clear in recent years that the Constitution forbids the government from compelling some people to subsidize the speech of others—yet PruneYard contradicts that principle by forcing property owners to host expression they may not support. The brief explains that nobody has a right to express themselves on someone else's land without consent, just as "your right to swing your fist ends where my nose begins." The Goldwater Institute argues that PruneYard's vagueness has allowed it to survive only by being "malleable enough to be distinguished by subsequent cases," which they describe as "a bug, not a feature."
The Supreme Court now has a chance to resolve this decades-old contradiction. The property owners in the new California case, represented by the Pacific Legal Foundation, have asked the Court to take up the issue and finally overturn PruneYard. The Goldwater Institute's position is straightforward: private property owners should be free to exclude expressive trespassers, and state courts have already shown the way by rejecting the precedent in their own rulings. If the Court agrees to hear the case and rules in favor of property owners, it would end a 40-year experiment in forcing Americans to choose between protecting their property and respecting others' speech rights—a choice the institute argues they should never have had to make.