One of the essential sticks in the bundle of property rights is the right to exclude others. Not every destruction or injury to property by governmental action has been held to be a taking in the constitutional sense. The determination whether a state law unlawfully infringes a landowner's property in violation of the taking clause requires an examination of whether the restriction on private property forces some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole. This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. When regulation goes too far it will be recognized as a taking.
High school students seeking to solicit support for their opposition to a United Nations resolution set up a table in a corner of the central courtyard of a shopping center in California (the shopping center being a large commercial complex, open to the public at large, containing over 75 commercial establishments), but shortly after they began distributing pamphlets and asking passersby to sign a petition addressed to the President and Members of Congress, a security guard informed them that, notwithstanding the peaceful and orderly nature of their activity to which shopping center patrons appeared to have no objection, their activity could not be carried on in the shopping center because it violated the shopping center's policy prohibiting any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, if the activity was not directly related to the center's commercial purposes. After the students left the premises they brought an action in the Superior Court of Santa Clara County, California, seeking to enjoin the owner of the shopping center from denying them access for the purpose of circulating their petitions. Concluding that there were adequate, effective channels of communication for the students other than solicitation on the shopping center's property, the Superior Court held that the students were not entitled under either the Federal or California Constitutions to exercise their asserted rights on shopping center property.
Does a state law which requires owners of large shopping centers to allow members of the public to enter their property to distribute petitions constitute a taking of property?
The Supreme Court held that neither appellants' federally recognized property rights nor their rights under the First Amendment, U.S. Const. amend. I, had been infringed. The Supreme Court held that its prior decision did not ex proprio vigor limit the authority of a state to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. The Supreme Court held that the requirement that appellants permit appellees to exercise state-protected rights of free expression did not infringe appellants' property rights under the taking clause, because nothing suggested that the exercise of those rights would unreasonably impair the value or use of appellants' property.