Defn of property; Justifications

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Right to Exclude
Not absolute – b/c property is the relationship of people in relation to things; So interests conflict – can’t exclude to the point that it infringes on basic rights of others

  • Property rights don’t include the right to harm others through exclusion

Logan Valley – when privately owned business district is the functional equivalent of a public meeting place – it’s treated like it’s publicly owned (owner can regulate speech but not bar it)
Lloyd – Free speech definitely protected federally if site-specific No other effective place to go

  • Speech rights of a publicly owned place if the place functions like the state (seems to mean monopolistic control – like in Logan Valley)

  • BUT – shopping mall is not the functional equivalent of a public meeting place

Pruneyard – when the state has a more permissive free speech law – follow that law

  • State has the right to define property rights any way they want up to the point of regulatory taking

  • (can define property rights to exclude the right to exclude the right to prevent speech on publicly accessible private property)

State v. Shack – 1st A rights don’t trump the right to exclude speech

  • BUT property rights don’t include the right to harm others

  • Here, b/c of materiality and the isolation of the workers, (even though the land doesn’t fit into the Logan Valley idea b/c it’s not open to the public) exclusion of the speech would cause harm (and the owner wouldn’t be hurt – could regulate the speech)

Speech cases 1. state law? Does it go too far (regulatory taking?)?

  1. site-specific?

  2. Is it a shopping mall?

  3. Is it the functional equivalent of a public meeting place – (b/c the private owner has monopolistic control of all the places people could speak effectively)?

  4. Is there a reason why preventing the speech would harm people? If so, will the property owner be harmed? (balance)(isolation, materiality, availability of other forums, ability of people to get the info another way)

If these tests say – no right to speak on this property – then a taking if someone is forced to allow it? b/c rights given by title are violated? COME BACK TO THIS!!!
Discriminatory exclusion p.48
Civil rights act of 1964 – outlaws discrim. In public facilities and some private places
Fair Housing Act – exception – single-family, owner-occupied houses AND an

owner-occupied multiple unit with 4 units or less

  • advertising can be considered discriminatory here (but discrimination is ok)

  • Prove violations using patterns of behavior

  • National origin? Questionable

ADA – affirmative duties and non-discrimination provisions

ADA vs. FHA – both try to prevent discrimination; FHA wants to level the playing field; ADA wants affirmative obligations

Directory: sites -> default -> files -> upload documents
upload documents -> Always put things in threes (eskridge has ocd) I. Procedural Due Process and Reading a Case
upload documents -> Federalism – The Structure of Government
upload documents -> General Info About Property law
upload documents -> Con law professor Larry Sager Fall 1995 I. U. S. Term limits V. Thornton
upload documents -> Property with Professor Vicki Been
upload documents -> Property Outline – Professor Upham, Spring 2000
upload documents -> Constitutional law outline part I: structure of government judicial review and constitutional interpretation
upload documents -> Complex federal investigations
upload documents -> Foundations: Agency Law Introduction to law of enterprise organizations
upload documents -> Pricing v. Sanctions

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