Majestic Realty Co. and its partners own and operate two adjoining open-air shopping centers in Redlands, California. These shopping centers prohibit any soliciting, petitioning, polling for political causes, or distribution of pamphlets on their private property. Those who wish to engage in such expressive activity at the centers must obtain prior approval, but the policy is to deny all such requests – which, in effect, bans third-party speech there.

Alex Salazar, a “men’s rights” activist, sought permission to distribute flyers on the centers’ private property. He was denied that permission. Eventually, he sued in California state court, asking for a preliminary injunction that would compel Majestic Realty Co. and its partners to give Salazar access to their property and serve as platforms for his speech. After the trial court denied the injunction, the California State Court of Appeals reversed, holding that the centers’ ban violated PruneYard Shopping Center v. Robins. PruneYard held that a mall’s First and Fifth Amendment rights are not violated by compelled access to its private property. The California court was bound to apply this precedent, and Majestic Realty Co. appealed to the Supreme Court. The Cato Institute has filed an amicus brief in support of their petition.

Cato’s brief argues that the Supreme Court’s decision in PruneYard was wrong on the day it was decided. It conflicts with the Court’s contemporaneous First Amendment jurisprudence in Wooley v. Maynard and Abood v. Detroit Board of Education. In those cases, the Court was firm that compelled speech violated the First Amendment, even when the compelled speech would not be mistaken for the speaker’s own beliefs. And since 1980, PruneYard’s status as First Amendment aberration has only grown starker, with cases like 303 Creative, Moody, and Janus reinforcing the right to be free from compelled speech. It is time for this mistaken doctrine to be removed from binding law.