Week 2–Handout

Prof. Parker–Property–Section B
Statutory Law Limitations on the right to exclude

FEDERAL STATUTES
 Civil Rights Act of 1964, Title II

o Full and equal enjoyment of ANY place of public accommodation w/o

discrimination or segregation on the ground of race, color, religion, or national
origin.
 NOT COVERED: Sex/gender, sexual orientation, age, disability,
family status, economic status.

o Public accommodations = operations

 That effect commerce or discrimination supported by state
action_________________________________________________________
_______________________________________________________________
_____

o A non covered establishment within a covered establishment AND holds itself out as
serving patrons of such covered establishments comes under the Act.

o REMEDIES: Must first be sought through respective state agencies No private right
of action. May seek only declaratory or injunctive relief-- NOT damages.

o TO RAISE A CLAIM
 discrimination or segregation on the ground of race, color, religion, or national
orgin
 place of public accomodation
 have effect of denying the individual of goods services, facilities, priveleges,
advantages, and accomodations
______________________________________"

o EXCEPTIONS
 The public/private distinction: private clubs are exempt if not open to public
_________ ________________________________
 Opening property to the public is a question of degree.
 Retail stores are exempt. (moderate nature of bill)

 Civil Rights Act of 1866, §1981–Contracts, §1982–Property:

o "Full and equal benefit of all laws and proceedings for the security of persons and
property" based on race.
o Differences:
 Framed broadly. (only for discrimantion not segregation)
  Permits damages
 Also subject to the same punishments an penalties under the law as whites.
o Why isn't this the same as the Civil Rights Act of 1964?: 1964 is pursuant to the
commerce clause. 1866 had no commerce. 1866 only applied to state action—could
not get private businesses to be covered
_____________________________________________________________________
_____________________________________________________________________
 Public/private problem: The 1866 statute wasn't effective enough in
promoting anti-discrimination b/c it was interepreted as only applying to
state action (see, e.g., black-out laws).
o Courts later tried to use the 1866 act to enforce private Ks again. (notes in book)

STATE STATUTE
 New Jersey Law Against Discrimination:
o Includes: "race, creed, color, national origin, ancestry, age, sex, affectational
or sexual orientation, marital status, familial status, liability for service in the
Armed Forces of the U.S., or nationality . . . ."
o EXEMPTION: Private & associational interests; sectarian educational
facilities.
 Otherwise, act should be "liberally construed" in conjunction
with other protections.
o "Place" is not physical

Boy Scouts of America v. Dale (2000)

 Facts: BSA discovered through a newspaper article that Dale was an avowed
homosexual. Dale, a long time and exemplary member of the BSA and an assistant
scoutmaster received a letter revoking his membership. He later was informed that BSA
does not admit avowed homosexuals to membership. Dale sues BSA, a federally
chartered corporation, for injunctive relief based on the New Jersey Law Against
Discrimination.
 Holding: The NJ LAD violated the First Amendment's protections for the
freedom of assoaciation, __________________ which includes intimate associations and
expressive associations and the "approved message" of the BSA.
 Reasoning:
o The BSA sought to instill a certain system of values that they had the freedom to
express, admittance of an openly gay man deeply affected the message they were
promoting. It would be the "forced inclusion of an unwanted person in a group . . . ."
o The court weighed the interests of LAD and the BSA's rights to freedom of
expressive association. The law does not justify such an intrusion.
 The dissent: Sex and sexuality were not a part of the avowed message of the BSA . . . . In
fact, it was not to be discussed at all (left to family). They were silent on the issue. There was
no symbolic speech to be protected by the first amendment
__________________________________________________________________________.

Constitutional Limitations on the right to exclude

How do you explain the shift saying the public forum is immemorially recognized?
Great Depression response. Liberty to contract. In 1938 shift to liberty being fair political
process.

 1st Amendment: "Congress shall make no law . . . ." Rights not to be interfered with.
 5th Amendment: "[N]or shall any person . . . (1) be deprived of life, liberty, or property,
without due process of law; (2) nor shall private property be taken for public use, without just
compensation."
 14th Amendment; Section 1: "[N]or shall any State (1) deprive any person of life, liberty,
or property, without due process of law; (2) nor deny to any person within its jurisdiction the
equal protection of the laws."

Lloyd Corp. Ltd. v. Tanner (1972)

 Facts: Lloyd Corp. privately owns a shopping mall that is generally open to the public.
Groups and organizations can engage in certain kinds of activities of expression by
advance arrangement. Rent is usually charged, unless used by certain charities. Tanner &
others were handing out handbills protesting the Vietnam Wars. They were not littering
and were not disruptive. They were asked to leave the premises and distribute
handbills outside. Tanner sues owner of shopping mall based on First Amendment
free speech.
 Holding: the first amendment does not guraentee expressional freedoms in a
privately owned shopping center where that privately owned shopping center is
used in a non discriminatory way and privately (this is a limitation on the reading of
the 1st amendment—NOT the 5th amendment)
______________________________________________
______________________________________________
 Language:
o Distinguishing prior cases: Marsh is about a company owned town not a business
district. _________. Logan Valley is really about a protest where the content of
protest is directed at store. ________________________.
o The policy was not only implemented indiscriminately, but it was done so for private
purposes only ___________________. The First and Fourteenth Amendments are
to limit state action not private action or indiscriminate action action.
o In this case, the Fifth and Fourteenth Amendment rights of Lloyd are competing with
the First Amendment rights of Tanner, but the accommodation is clear "that there
has been no such dedication of Lloyd's privately owned and operated shopping
center to public use as to entitle respondents to exercise therein their first
amendement _________________________ rights."
 Dissent:
o speech trumps right to exclude
o Hand billers have a NEED to express themselves in Lloyd Center (only means).

Take Home Points:

 There is a zone in which states have discretion (in between 1st and 5th
amendment)
 Property rights as a private owner may vary by specific circumstances. More
 property is open to the public, the more it is restricted.
States have a right to use discretion

NUISANCE - The "use" stick in the bundle . . .

Defined: A landowner may sue another person for "private nuisance." Private nuisance is an
interference with a landowners use an enjoyment of his land.
_______________________________________________________. Nuisance law is a law of
reasonableness --- allows flexibility allowing the court to consider the totality of the circumstances
(Armstrong).

Is harm substantial?
Substantial interference?
Only if a personal of normal sensitivity is bothered
Act intentional?
Economic utility?
Which use more appropriate for land