Gregory C. Sisk (University of St. Thomas School of Law (Minnesota)) has posted Uprooting the Pruneyard (Rutgers Law Journal, Vol. 38, p. 1145, 2008) on SSRN. Here is the abstract:
If, in the description of one constitutional scholar, text, history, structure, prudence, and doctrine are the building blocks of constitutional argument, then the California Supreme Court's landmark 1979 decision in Robins v. Pruneyard constructed a building without a supporting foundation, sturdy walls, or a covering roof. The court invoked the Liberty of Speech Clause in the California Constitution to impose duties upon private landowners, not merely upon government, to facilitate the political speech of others. But Pruneyard was a disembodied policy decision, severed from constitutional text, history, context, and developed legal reasoning. In this Article, the author revisits the Pruneyard decision, through a scrupulous analysis of the text and the context of the typical state constitutional speech clause, together with a fresh examination of original historical sources in state constitutional drafting. The author further addresses the continuing interplay in constitutional law between freedom of speech and guarantees for private property, insisting that weakening the latter ultimately compromises the former. Because Pruneyard has received persistent attention in ongoing constitutional debates for more than two decades, because more than thirty states share a similar text for (and much of the same history of) a constitutional liberty of speech clause, because Pruneyard is a period piece from a particular epoch in American constitutionalism, and because the jurisprudence of constitutional interpretation has progressed beyond that stage, the story of Pruneyard is a cautionary tale with national resonance.
Recommended, and so far as I know, unique in it's close examination of the text of the California liberty-of-speech clause. Athough I have significant reservations about the conclusions, this clearly moves the ball forward.
My reservations concern the Sisk's argument concerning the relationship between the two sentences in the clause:
“Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”
Sisk argues that the second clause restricts the first, but so far as I can tell from my reading of his arguments, this conclusion does not flow from the conventional semantic meaning of the clause, but instead is based on the background assumptions that would have informed expectations about the likely applications of the clause. So far as the conventional semantic meaning goes, the relevant provisions are vague--the crucial question is what constitutes restraint or abridgment and what are boundaries of liberty of speech. What is required then, is a theory of constitutional construction--a normative theory that delineates the correct procedure for drawing the line around liberty of speech and the line between what constitutes reasonable regulation, on the one hand, and abridgment or restraint on the other.
But this is really just a quibble about conclusions, which don't go to the enormous service that Sisk has done by asking the questions.
