Limited liberty : free speech and property

A group of teenagers use a privately owned shopping centre to gather support for a petition to the United Nations. A guard informs them that the owner of the property does not allow any public communications other than those connected to the various commercial activities, and asks them to leave. This on the surface undramatic and almost mundane event penetrates to the very core of constitutional issues, the existence of a constitutionally protected sphere of personal liberty, and exposes the rights and limits that define it. Thus, when the teenagers filed a lawsuit claiming their expressive activity was protected by the First Amendment s free speech clause, challenging the property owner s claims to control speech and activity on his legally owned land, the case ended up in the United States Supreme Court. PruneYard Shopping Center v. Robins (1980) arose from a conflict between two pillars of personal freedom, free speech and private property. Both are protected by the United States Constitution, and the case exposes the limits of even that founding document as a comprehensive guide to the organization and regulation of American society. The tensions in PruneYard is developed further through comparison with two other Supreme Court cases on the conflict between definitions of the public and private spheres, Frisby v. Schultz (1988) and Hurley v. Irish-American Gay Group of Boston (1995). Together they and the judicial traditions that shaped them show a tendency of the Court to avoid acknowledging direct conflicts between different constitutional rights. Such a direct conflict would necessitate the creation of a hierarchy organizing the different provisions of the Constitution, which in turn would reduce the universal authority of that document. Instead, the emphasis of Court opinions has been on defining rights, guiding principles and the particular contexts of court cases so as to avoid direct conflict, and as a result, avoid the need to balance the value of different constitutional passages and rights against each other. Moreover, the three cases show how in practice even constitutionally protected liberties are inevitably limited. Individual liberty depends on restrictions on government and the behavior of others. This means that in fact, liberty in a liberal constitutional democracy is defined by limits. Now is a time of transition as the nature and role of nations and governments are changing. To ensure that we are agents rather than mere observers in this process, it is necessary to expose the history, functions and status of our present form of organization into communities. In that way only can we reflect on and influence the hows and whys, that is which values and principles our future should be founded on