Property Rights at the Supreme Court

Member of the United Farm Workers Union (UFW) 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 Monday the justices will have a chance to welcome his return with some traffic rules.

In 1975, the California Agricultural Labor Relations Board passed an ordinance requiring farmers to allow union members to be present on their property for three hours a day, 120 days a year. In October 2015, without notice, union protesters stormed the Cedar Point site with megaphones and distracted workers who were preparing strawberry plants.

In those days, some farm workers lived on farms, and union organizers had few opportunities to communicate unless they had access to farm property. The Supreme Court in NLRB v. Babcock & Wilcox (1956) stated that although a company generally has the right to bar union organizers from its parking lots, this right may be limited if the union is prevented from reaching employees with its message by making reasonable efforts through other available channels of communication.

The Court’s restraint allowed California’s counsel to engage in hyperbole that became increasingly blatant over time. Today, most employees do not live on their employer’s premises, and the union can reach them where they live or through targeted social media ads.

Cedar Point Nursery and Fowler Packing Co. argues that the California ordinances amount to a temporary governmental easement and thus constitute what it calls its own easement. The Fifth and Fourteenth Amendments to the Constitution prohibit governments from appropriating private property for public purposes without just compensation and due process.

Although the state is not a direct expropriator of the property, the Court held that it can violate the seizure clause of the Constitution per se by physically occupying the property and restricting the owner’s right to do with it as he or she pleases. The California Farm Bureau disagrees. The government says it does not have to compensate farmers as long as it does not borrow or permanently seize property.

A divided panel of the Ninth Circuit Court of Appeals sided with California, citing Supreme Court precedent in PruneYard Mall (1980), which upheld a California constitutional provision prohibiting the owner of a private shopping center normally open to the public from imposing restrictions on political speech.

Conservatives who believe that social media companies should not restrict speech on their platforms often cite this ruling. But PruneYard was particularly concerned with the scope of the First Amendment. The Ninth Circuit interpreted the case to mean that states could restrict a corporation’s right to keep people off its property. Governments may restrict property rights to protect public health and safety. But the Ninth Circuit’s decision would effectively allow governments to do what they think is a public purpose.

The Ninth Circuit also makes an arbitrary distinction between temporary and permanent easements. Under the interpretation of the Adoption Clause, the state cannot require a coastal property owner to allow random people to traverse his or her property 24 hours a day to access the beach. But the state can allow public access from 9 a.m. to 9 p.m.

The lower courts disagree on these issues, and the judges have the opportunity to clarify.

Newspaper article: Paul Gigot interviewed economist Steve Moore. Image: Nicholas Kamm/AFP via Getty Images

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frequently asked questions

What are the rights of owners?

Landowners have a series of legal rights that pass to them when they buy the land. … The main legal property rights are the right to possess, the right to control, the right to exclude, the right to receive income, and the right to alienate.

What are the three property rights?

An efficient property rights structure is considered to have three characteristics: Exclusivity (all costs and benefits of ownership of the resource must accrue to the owner), transferability (all property rights must be transferred from one owner to another in a voluntary exchange), and enforceability (property rights …

How are property rights protected?

The Constitution protects property rights through the Due Process Clauses of the Fifth and Fourteenth Amendments and, more directly, through the Enactment Clause of the Fifth Amendment: Private property may not be taken for public use without just compensation. There are two ways the government can take property: (1) directly…

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