#16 Winter 1995


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The Association for Objective Law has announced its second annual Essay Contest. Promotional materials have been distributed to all U.S. law schools. In addition, multiple copies of the flier have been sent to all campus Objectivist clubs for additional posting. Once again, substantial cash prizes will be awarded: $1,000 for first place, $700 for second, and $300 for third. A flier is enclosed with this mailing, and extra fliers are available by request. (Also, please feel free to photocopy the fliers as needed.) The purpose of the contest is to promote awareness of Ayn Rand's philosophy among law students. The essay that won first prize in last year's contest is reproduced in this Bulletin. The author, Michael L. Sensor, is now a third-year student at the Duquesne University School of Law in Pittsburgh, Pennsylvania.

As always, TAFOL welcomes contributions that will help to pay the cash prizes and operating expenses for the contest. TAFOL has § 501(c)(3) public charity status, and thus the Internal Revenue Service recognizes donations to TAFOL as tax deductible.


• On October 10, 1995, oral arguments were held before a panel of the U.S. Court of Appeals for the Second Circuit in the case of Daniel Immediato v. Rye Neck School District. The plaintiffs in the Immediato case challenge the right of public school authorities to require service to the needy as a precondition for receiving a high school diploma. TAFOL's amicus brief in the case includes quotations of relevant passages from Ayn Rand's essays and challenges the altruist ethical premise underlying mandatory student service, that individuals must justify their existence by service to others. Although TAFOL did not participate in the oral argument (it is very rare for the Court to permit a non-party to do so), TAFOL's brief was filed and will be considered by the Court. A written decision has not yet been issued by the Court.

• The Texas Supreme Court has placed Gomez v. State Bar of Texas on its administrative docket. In that case, the plaintiffs seek to impose upon all members of the Texas bar a duty to serve indigent clients without compensation. TAFOL President Michael J. Mazzone is a party to that case, opposing the mandatory pro bono obligation, and TAFOL has supported his efforts financially. The Court has neither made a ruling nor scheduled oral arguments. The case appears to be stalled in its tracks, which is (temporarily, at least) good news for the opponents of mandatory pro bono.

• On November 6, 1995, Michael J. Mazzone appeared before a panel of the United States Court of Appeals for the Fifth Circuit and presented oral argument in the case of Washington Legal Foundation v. Equal Access to Justice Foundation. In that case, Mazzone is one of the plaintiffs who sued the Justices of the Texas Supreme Court, seeking an end to Texas' Interest on Lawyer Trust Accounts ("IOLTA") program. IOLTA laws, which are in force in virtually every state, seize the interest income earned on clients' money in lawyers' escrow accounts and then disburse that money to so-called "public interest" groups. Mazzone's argument to the Fifth Circuit panel relied on constitutional law, the fundamental political principles of the Founding Fathers, and the ethical and political philosophy of Ayn Rand.

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Over the years, TAFOL has received numerous offers from contributors to volunteer their time. TAFOL has made use of these volunteers on an informal and sporadic basis. Unfortunately, most of these offers are never followed up. The reason is that projects such as the submission of an amicus curiae brief require a project leader. Such a leader must be an attorney who can devote the many hours (usually under strict time pressure) necessary to complete the project. Before preparation of an amicus brief can even be begun, someone must identify the litigation and get in touch with the lawyers for both sides to obtain permission to file. The issues must be researched, and the brief drafted, edited, and then submitted for approval to TAFOL's Board of Directors before filing. While TAFOL reimburses the out-of-pocket costs of this enterprise, the leader's time must be donated. This is a heavy burden that few have been willing to shoulder. But such project leaders are a key to TAFOL's success.

If you believe that you would like to take on an amicus project, please contact Stephen Plafker, Robert S. Getman, Thomas A. Bowden, or Michael J. Mazzone well before the case goes up on appeal. Advance planning is essential. Without more project leaders, the project helpers whose assistance could be so valuable will continue to go unused.


Stephen Plafker and Arline Mann, both former TAFOL Presidents, teamed with philosopher Gary Hull to stage a panel discussion on August 18, 1995, at the Lyceum International Conference in San Francisco. Despite a schedule that conflicted with other events, about 50 people attended. Plafker opened with a summary of recent TAFOL activities and pointed out two causes for optimism: (1) TAFOL is able to get respectful consideration for briefs that argue on reasoned grounds while quoting Ayn Rand, and (2) two of the Pennsylvania
students who chose to forego their high school diplomas rather than complete mandatory community service seem not to have suffered serious harm in their transition to the colleges of their choice.

There was spirited discussion on many topics along with many good questions, including some directed at the way Objectivism will influence the law. Hull added an invaluable philosopher's perspective.


TAFOL's database lacks current addresses for the following supporters. Anyone who has current information is invited to provide current information so that we may send a Bulletin and re-establish contact: [data omitted]

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This is the winning essay in the 1995 TAFOL Essay Contest. The author is Michael L. Sensor, now a third-year student at Duquesne University School of Law in Pittsburgh, Pennsylvania:

* * *


Petitioners, CIVIL ACTION
v. No. CV 95-1



This case comes to us on appeal from the Supreme Court of the United States. Petitioner, Donald M. Tanner, seeks reversal of that court's decision. For the reasons stated below, we affirm.

I. Factual and Procedural Background

Respondent, Lloyd Corporation, Ltd. ("Lloyd"), is the owner of a large shopping mall complex in Portland, Oregon, known as "Lloyd Center" ("the Center"). The Center is open to the public for the purpose of shopping and attendance of selected public functions. Several small signs were embedded in the Center's sidewalks stating, in essence, that the Center's walks were not to be considered public ways and that permission to use the Center could be revoked at any time. At times in the past, Lloyd had invited certain groups to use the Center's facilities. Lloyd Corp. v. Tanner, 407 U.S. 551, 551-55.

Petitioners, Donald M. Tanner and five others (hereinafter collectively referred to as "Tanner"), had entered upon the Center's property for the purpose of distributing handbills inviting persons to a meeting in protest of the Vietnam War. Tanner and his companions began distributing the handbills to the Center's patrons; however, they were requested by the Center's security guards to leave the Center's premises. Petitioners complied and continued their distribution off of Lloyd's premises. Id. at 556.

Tanner subsequently filed an action for injunctive and declaratory relief in the United States District Court for the District of Oregon. Id. at 556. The district court, granting Tanner's request, enjoined Lloyd from "preventing or interfering with the distribution of non-commercial handbills in a peaceful and orderly manner in the malls and walkways within Lloyd Center at times when they are open to general public access. Id. at 564 n. 11. The district court based its ruling on the premise that the Center was the "functional equivalent of a business district," as detailed in the cases discussed infra. Lloyd appealed to the United States Court of Appeals for the Ninth Circuit, which affirmed the District Court's injunction for substantially the same reasons. The Supreme Court granted certiorari and reversed the decision of the District Court.

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II. Discussion

A. The Center, As Private Property, Is Not the “Functional Equivalent of a Business District”

Tanner's first point on appeal is that the Center, because of its public nature, constitutes the "functional equivalent of a business district," in accord with the Supreme Court's decisions in Marsh and Logan Valley. Although we agree with the Supreme Court's holding that the Center does not constitute a public area and is thus not available to Tanner as a forum to express his views, we strongly disagree with its reasoning.

The United States Supreme Court, in past decisions cited in Lloyd, recognized that the private nature of private property does not always preclude a person from trespassing thereupon to exercise his "right" to free speech. The first of these cases considered by the Court in Lloyd was Marsh v. Alabama, 326 U.S. 501 (1946). In Marsh, the Supreme Court reversed the conviction of petitioner, a Jehovah's Witness arrested for trespass when she handed out religious literature while standing on a sidewalk in front of a post office located in a company-owned town. The Court held that petitioner's First Amendment rights were not abrogated by the mere virtue of the fact that she was exercising her rights on a company-owned sidewalk---i.e. on private property. Rather, the Court held, the sidewalk and the entire town were the "functional equivalent of a business district" and as such, there was nothing to distinguish the town from "any other town and shopping center except for the fact that the title to the
property belong[ed] to a private corporation. " Id. at 503.

The Supreme Court broadened this doctrine of "functional equivalency" in Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968). In Logan Valley, petitioner, a union of grocery store employees, began to picket on the property of a grocery store located in Logan Valley Mall, a shopping mall owned by respondents located in Altoona, Pennsylvania. Petitioners picketed respondent's store to protest respondent's policy of employing solely non-union employees.

The mall's owner secured an injunction against the union's picketing on the basis that it violated Pennsylvania's trespass laws. However, the United States Supreme Court reversed. The court extended the Marsh doctrine, finding that respondent's shopping mall was, as in Marsh, the "functional equivalent of [a] business district" because it "serve[d] as the community business block 'and [was] freely accessible and open to the people in the area and those passing through."' Logan Valley, 391 U.S. at 319 (citing Marsh, 326 U.S. at 508).

Moreover, held the Supreme Court, had the union been enjoined from picketing on the mall's property, it would have been "deprived of all reasonable opportunity to convey [its] message" to patrons of the grocery store, as the nearest public sidewalks were located some 350 to 500 feet from the store's entrance. Logan Valley, 391 U.S. at 321; Lloyd, 407 U.S. at 566.

The Supreme Court in Lloyd found that the Center, unlike the private property in Marsh and Logan Valley, was not "sufficiently dedicated to public use" as to permit Tanner to enter into the Center to distribute his handbills. The court dismissed Tanner's claim that the Center was the "functional equivalent of a business district, " rejoining that a business that is private property and open to the public does not become public property by the mere existence of an invitation to the public to use it for certain purposes. Lloyd, 407 U.S. at 569. Yet, admitted the court, other considerations, such as the size of the store or the "diversity of activities carried within" might cause it to hold differently in the future. Id. at 570.

Petitioners now urge us to find that the Center is a "functional equivalent of a business district,"

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arguing, as they did in the Supreme Court, that the Center has dedicated itself to public use to the degree that it should be considered a mere public thoroughfare. We are unpersuaded by petitioners' argument as well as by the reasoning of the Supreme Court.

Initially, we must note that it is not the function of this Court, as an arm of the Government, to compel respondents to submit to petitioners' will. Rather, our power is limited to ensuring that the use of retaliatory force is done so under objectively valid laws, and to protect the individual rights of both parties. See AYN RAND, The Nature of Government, in THE VIRTUE OF SELFISHNESS 107-09 (1961) (hereinafter The Nature of Government); AYN RAND, Man's Rights, in THE VIRTUE OF SELFISHNESS 92, 93 (1961) (herein after Man's Rights).

Furthermore, the extent to which Lloyd's property is open to the public---i.e. the "purposes" to which the property is dedicated---is wholly irrelevant to its nature as private property. The right to property is the only means by which man may implement his right to life; as such, there can be no other rights without property rights. Man's Rights at 94. For the same reason that one man may not initiate force against another, thus robbing that person of his right to life, under no circumstances may Tanner, or anyone else, enter upon Lloyd's private property without an invitation, no matter how purportedly noble the cause. Lloyd, in sum, cannot be made to act against its will. The Nature of Government at 108.

We decline to relegate Lloyd's property rights to the arbitrariness of Tanner's desires. Put simply, Tanner may not obtain from Lloyd values which are not his. The Nature of Government at 111. Tanner has no "right" per se to an object---i.e., to Lloyd's property for the purpose of "free speech." Rather, Tanner must himself earn that right by seeking the voluntary participation of Lloyd in any venture which would involve an abridgment of Lloyd's property rights. Man's Rights at 97. If Tanner wishes to deal with Lloyd, it may do so "only by means of reason; by discussion, persuasion, and voluntary, uncoerced action." The Nature of Govemment at 108. Lloyd clearly has the right to dispose of its property as it sees fit, and it may choose to---or not to---deal with Tanner.

We therefore agree with the Supreme Court's decision, but not its reasoning, that private property does not "lose its private character merely because the public is generally invited to use it for designated purposes," Lloyd, 407 U.S. at 567, and hold that the Supreme Court did not err in reversing the injunction against Lloyd.

B. Tanner’s Right To Free Speech Does Not Include A “Right” To Invade Lloyd’s Property Rights

Tanner further argues that the court below erred in reversing the District Court's injunction, claiming that by being excluded from the Center, he has been deprived of his First Amendment rights by being denied the opportunity to speak freely within the Center. This argument is completely inapposite to the nature of Tanner's "rights" as a human.

Whether or not Tanner is relegated to another area to distribute his handbills to passersby---no matter how far away from the premises---is of no concern to this Court, and we therefore categorically reject the Supreme Court's analysis in Logan Valley, Marsh, and Lloyd. Nor is it a concern of Lloyd. Lloyd is not required, merely because it chooses to operate a shopping complex open to the public, to

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provide Tanner with a convenient forum for the dissemination of his ideas. Man's Rights at 99. Tanner, likewise, cannot force Lloyd to provide him with "the support, advantages, and rewards of a popularity [he has] not gained. " Id. Indeed, the proper function of the First Amendment right to freedom of speech---and the only function of this right which we will enforce---is the right to speak freely without "forcible suppression". Id. It does not provide that Tanner may speak freely on property that is not his. Once again, we note that, if Tanner is as determined to distribute his handbills upon Lloyd's property as he appears to be, he need only gain Lloyd's voluntary consent to do so, as other groups have done in the past. Id. at 97. See Lloyd, 407 U.S. at 555.

Tanner, moreover, does not possess an actual "right" to free speech upon Lloyd's property, as the exercise of this purported "right" would result in an abridgement of Lloyd's property rights. Unlike the United States Supreme Court, we decline to hold that certain circumstances exist in which the property rights of an owner of private property could be abridged in favor of another's right to free speech. Rather, as we stated supra, rights exist to protect and define an individual's freedom of action. Id. at 93, 97. The obvious corollary to this axiom is that an individual's rights can impose no obligations upon others. Id. at 97. Tanner's alleged "right" to free speech here, which would necessarily involve the violation of Lloyd's
property rights, is simply not a right at all. Id. at 96.

There is no "balancing test" to be applied between Tanner's First Amendment rights and Lloyd's Fifth and Fourteenth Amendment rights, as the Supreme Court did. No "solicitude" need be shown for the First Amendment over individual rights, as the Supreme Court is willing to recognize. Indeed, we do not distinguish Marsh and Logan Valley on the basis of the fact that Tanner could convey his message elsewhere without entering the Center. The property rights of Lloyd will be, and must be, paramount in this analysis. The only extent to which Lloyd is obligated to acknowledge Tanner's First Amendment rights is to refrain from abridging those rights. Id. at 94. By means of illustration, if Tanner were forbidden by a Center security guard to distribute his literature while standing on his own property adjacent to the Center, Tanner would have a legitimate basis for redress from Lloyd. But that is not what Tanner seeks this Court to do. By allowing Tanner to encroach upon Lloyd's property rights, we would deprive Lloyd of its property rights and, essentially, condemn Lloyd to slave labor by appropriating its values. Id. at 95, 96.

III. Conclusion

Tanner cannot claim a right to Lloyd's property, as it is simply not his to dispose of. He may not impose his will upon Lloyd in the guise of a "right". The only way in which Tanner may distribute his right to free speech is to seek Lloyd's voluntary assent to his activities. Anything less amounts to an abrogation of Lloyd's property rights and is impermissible. Therefore, we affirm the judgment of the United States Supreme Court.

It is so ordered.

Copyright © 1995 The Association for Objective Law. All rights reserved. The Association for Objective Law is a Missouri non-profit corporation whose purpose is to advance Objectivism, the philosophy of Ayn Rand, as the basis of a proper legal system.