At a 1974 board meeting of Temple Emanu-El in San Jose, members of the temple's Junior Youth Group presented a legal problem. Speaking for the group was Michael Robins, the 14-year-old son of our rabbi. I was serving my last year on the board as the temple's immediate past president.
The previous weekend, the kids had tried to circulate a petition asking President Gerald Ford to seek rescission of a recent U.N. resolution that Zionism (support of Israel) is a form of racism. Members of the youth group had met in downtown San Jose to begin collecting signatures, but downtown was practically devoid of pedestrians, as it had been since the first shopping centers in our area opened 20 years earlier.
So they tried the Pruneyard, a nearby suburban shopping center. Some people signed their petition, but security guards soon made them leave. The question of the legitimacy of their exclusion was the legal problem for which they were seeking advice from the temple board.
Everyone turned to the one attorney in the room - me. I reminded the board that I was a family law specialist. So I cracked the books. I found that both the California and U.S. supreme courts had concluded that expressive rights did not extend to private property, even a large regional shopping center. I noted, however, a passionate dissent from Justice Stanley Mosk, which eloquently observed that in California the shopping center had undertaken the public function of the town center. (Diamond v. Bland
, 11 Cal. 3d 331, 342 (1974) (Mosk, J., dissenting).)
My law firm agreed that I could take the case pro bono if out-of-pocket costs were covered. Even though I argued Robins v. Pruneyard
all the way to the U.S. Supreme Court, I faced no more contentious session than getting the temple board to approve the suit. A shop owner objected that the Pruneyard was an asset of its owner, and ownership rights included the right to exclude. I responded that shopping centers are a special kind of property, open to the public during business hours for band concerts and fashion shows without necessarily requiring visitors to buy anything. Finally convinced that the kids' cause was morally correct, the board authorized the suit and assumed responsibility for costs.
We lost our case in superior court and at the court of appeal because of the precedent set by Diamond v. Bland.
Then, by a 4-3 vote, the state Supreme Court overruled Diamond
, proclaiming that subject to reasonable regulation of time, place, and manner anyone could circulate a petition in large regional shopping centers such as the Pruneyard. (Robins v. Pruneyard Shopping Center
, 23 Cal. 3d 899 (1979).)
We thought the case was over, but the shopping-center industry urged the Pruneyard to file an appeal with the U.S. Supreme Court to complain that the California court's decision violated its federally protected property rights. To my surprise - and worry - the Supreme Court took the case, and I got my chance to argue (and preserve our victory) before the highest court in the land. On June 9, 1980, the U.S. Supreme Court published its unanimous decision, which included five separate opinions. The Court affirmed that the California Constitution could require shopping centers to permit expressive activities that might not require protection in other states. Under the principles of federalism, individual states may grant to their citizens broader (but not narrower) individual rights under their state's constitution than are available under the U.S. Constitution. (Pruneyard Shopping Center v. Robins
, 447 U.S. 74 (1980).)
When the U.S. Supreme Court ruled, the Zionism resolution was still on the U.N.'s books. (The U.N. revoked it in 1991.) So, within a few days of the ruling Michael, the rabbi's son, by then a college student, met me at the Pruneyard with the press in attendance. He was there again, to take up the cause he had championed six years earlier, but with one difference: This time collecting signatures on his petition in the shopping center was legal.
Philip L. Hammer is a certified family law specialist with Hoge, Fenton, Jones & Appel in San Jose.