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When Is it a Taking of Private Property to Bar a Property Owner from Excluding Unwanted Visitors?


A comment on the Rumsfeld v. FAIR thread reminded me that there’s some confusion about this question, especially in light of last year’s Cedar Point Nursery v. Hasid decision. Cedar Point held that a regulation providing that “[a]gricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year” “constitutes a per se physical taking” of private property and thus requires the government to pay “just compensation” to the property owners. What is the scope of that (and might it be relevant to requirements that social media platforms allow users or user posts that they don’t want)?

The general rule, to oversimplify a bit, is that

  1. it’s a taking (which triggers a duty to compensate) when the government “grant[s] a right to invade property closed to the public,” but
  2. it’s not a taking when the government provides greater access rights for property that is already “generally open to the public.”

The key precedent on this second point is PruneYard Shopping Center v. Robins (1980), which upheld a California rule requiring shopping center owners to let leafleters and signature gatherers onto their publicly accessible property. Cedar Point distinguished PruneYard:

Unlike the growers’ properties, the PruneYard was open to the public, welcoming some 25,000 patrons a day. Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public. See Horne v. Dep’t of Agriculture (2013) (distinguishing PruneYard as involving “an already publicly accessible” business); Nollan v. Cal. Coastal Comm’n (1987) (same).

And the Cedar Point Nursery Court explained that public accommodation laws, which require businesses that are open to the public to allow patrons whom they would rather exclude, are governed by the same principle: It expressly cited, right before its discussion of PruneYard, Heart of Atlanta Motel, Inc. v. U.S. (1964), as “rejecting [a] claim that provisions of the Civil Rights Act of 1964 prohibiting racial discrimination in public accommodations effected a taking.”

Of course, even regulations that aren’t “per se takings” (which categorically require compensation) might sometimes be viewed as “regulatory takings” and require just compensation on that theory. But to prevail, the claimant must satisfy the highly government-friendly regulatory takings balancing test, which generally requires a showing that the regulation would have a vast economic impact. And in PruneYard, the court held that the access mandate didn’t qualify as a taking under this balancing test:

Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions….

A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, but here appellants have failed to demonstrate that the “right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.”

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