BULLETIN
#16 Winter 1995
l SECOND ANNUAL
ESSAY CONTEST FOR LAW
STUDENTS UNDERWAY
l PROGRESS REPORTS ON TAFOL CASES
l PROJECT LEADERS SOUGHT
l TAFOL MEMBERS PARTICIPATE IN PANEL
DISCUSSION AT LYCEUM CONFERENCE
l UPDATED ADDRESSES NEEDED FOR TAFOL
CONTRIBUTORS
l IN THE SUPREME COURT OF REASON
#16 Winter
1995 Page 1 SECOND ANNUAL ESSAY CONTEST
FOR LAW STUDENTS UNDERWAY
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.
PROGRESS REPORTS ON TAFOL CASES
• 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.
#16 Winter
1995 Page 2 PROJECT LEADERS SOUGHT
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.
TAFOL MEMBERS PARTICIPATE IN PANEL DISCUSSION AT LYCEUM CONFERENCE
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.
UPDATED ADDRESSES NEEDED FOR TAFOL CONTRIBUTORS
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]
#16 Winter
1995 Page 3
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:
* * *
IN THE SUPREME COURT OF REASON
DONALD M. TANNER, et al.,
Petitioners, CIVIL ACTION
v. No. CV 95-1
LLOYD CORPORATION, LTD.,
Respondent.
OPINION
Before NARRAGANSETT, C. J., GALT, v. C. J., and REARDEN, FRANCON,
WYATT, D'ANCONIA, HALLEY, TAGGART, and ARGOUNOVA, JJ. NARRAGANSETT,
C.J.
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.
#16 Winter
1995 Page 4
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,"
#16 Winter
1995 Page 5
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
#16 Winter
1995 Page 6
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.
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