April 21, 2021

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Property Rights at the Supreme Court

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A United Farm Workers (UFW) member in Oxnard, California.


patrick t. fallon/Agence France-Presse/Getty Images

The Supreme Court has sometimes treated property rights as the prodigal son of the Constitution, and on Monday the Justices have an opportunity to welcome it back with some rules on behavior.

At issue in Cedar Point Nursery v. Hassid is a 1975 regulation by the California Agricultural Labor Relations Board that requires farmers to allow union organizers onto their property three hours a day for 120 days each year. In October 2015, union protesters barged with bullhorns onto Cedar Point’s land without prior notice and distracted workers preparing strawberry plants.

At the time some farm workers lived on the farms, and union organizers had few means to communicate unless granted access to farmers’ property. The Supreme Court in NLRB v. Babcock & Wilcox (1956) held that while a company usually has a right to exclude union organizers from its parking lots, that right could be limited “if reasonable efforts by the union through other available channels of communication” would not “enable it to reach the employees with its message.”

The Court’s hedge enabled the California board’s overreach, which has grown more flagrant with time. Most workers today don’t live on their employers’ land, and the union can reach them where they live or through targeted ads on social media.

Cedar Point Nursery and Fowler Packing Co. argue that California’s regulation is equivalent to a time-limited government easement and thus constitutes what’s known as a “per se” taking. The Constitution’s Fifth and Fourteenth Amendments prohibit governments from taking private property “for public use, without just compensation” and due process.

Even if a state isn’t outright expropriating property, the Court has long held it may still violate the Constitution’s takings clause per se by physically occupying property and limiting an owner’s right to do with it as he pleases. California’s farm board disagrees. As long as it is not permanently occupying or confiscating property, the state says it doesn’t have to compensate farmers.

A divided Ninth Circuit Court of Appeals panel agreed with California, relying heavily on the High Court’s PruneYard Shopping Center (1980) precedent that upheld a California constitutional provision, which forbade an owner of a private mall generally open to the public from adopting restrictions on political speech.

Conservatives who argue that social-media companies shouldn’t be allowed to restrict speech on their platforms often cite this ruling. But PruneYard was fundamentally about the scope of the First Amendment. The Ninth Circuit has interpreted the case in a way that would allow states to abridge a business’s right to exclude people from its property. Governments are allowed to limit property rights to protect public health and safety. But the Ninth Circuit ruling would effectively allow governments to do so in service of whatever they deem a public purpose.

The Ninth Circuit also makes an arbitrary distinction between a time-limited and permanent easement. Under its takings clause interpretation, a state couldn’t require a coastal landowner to let random people traverse his property 24/7 to access the beach. But a state could mandate public access between the hours of 9 a.m. to 9 p.m.

The lower courts are all over the map on these issues, and the Justices have a chance to provide some clarifying guidance.

Journal Editorial Report: Paul Gigot interviews economist Steve Moore. Image: Nicholas Kamm/AFP via Getty Images

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2021-03-19 18:37:00

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