Target: Please don't bring firearms into our stores

[GURPS]

(4) Just to reiterate, public accommodation is not the same as public function.

where I work;

we retain the right to process you through a metal detector search you bags before you get access past the parking lot

... as well as a right to look in the trunk of employee cars, before you depart

 

[Hijinx]

To me Target is just a more expensive Walmart. They will not have me to worry about in their stores.

Armed or unarmed.

 

[Gilligan]

Without getting too in the weeds on this (i.e. without covering every nuance, identifying every exception, and walking through how the law has evolved over time on this issue), here's basically how it works: The Supreme Court has said that First Amendment rights (i.e. to free expression) don't apply in the context of private property, even when that property is used to serve the public or has been opened to the public generally. To paraphrase the Court, the Constitution does not protect against private parties (to include corporations) that might abridge the free expression of others. But to clarify, I'd make a few additional points:

(1) That does not mean that laws can't be implemented (e.g. by states) that to some extent protect people's free expression rights against certain private parties. Such laws (or for states, state constitutional provisions) can raise balancing issues as between property rights (e.g. based on the Fifth Amendment) and speech rights, but the Supreme Court has said that they can in some circumstances be implemented. I don't think they are all that common though.

(2) We should distinguish between private property being used by the public and private property that provides a public function. Based on the so-called public function test, the Supreme Court has concluded that in some quite limited contexts private parties are functioning as the government, and in those contexts constitutional free expression rights do apply. For instance, and I don't know if these situations even exist anymore, when it comes to company-owned towns this is true. Those would be where entire towns - residences, streets, all the stores, all the infrastructure - are owned by a single private corporation. The Court found (a long time ago) that in such cases the private parties were functioning as government and providing government services just like they were public municipalities. That same principle does not apply, e.g., to privately-owned retail stores though. I don't even think it applies to, e.g., large shopping malls anymore though at an earlier time the Court was starting to expand that exception to the general rule to cover a broader range of circumstances. More recently the Court has repudiated that line of reasoning and narrowed the exception back such that it only includes company owned towns.

(3) When private parties take public money, that can also affect the consideration - e.g., such as the case with universities.

(4) Just to reiterate, public accommodation is not the same as public function. With regard to the former, it does not subject private property to constitutional restrictions. Those limitations apply against governments and entities acting as government. Laws can be passed that extend what we think of as constitutional protections to public accommodations, but generally speaking there aren't such laws at the federal level when it comes to free expression rights. Private parties generally can, e.g., prohibit people from trespassing on their private property based on speech. The same is true when it comes to Second Amendment carry rights - at least until new laws are passed preventing it.

So, in short, you are saying that the opinions contained in that piece I linked to are largely incorrect.

 

[nutz]

Smoking is legal.

Really? Not many public places left (if any) where this is a true statement. Hence, the bar, restaurant and retail stores (publicly accessible places) ban of the activity. Some jurisdictions have gone so far as to ban smoking in private, membership only places too.

 

[nutz]

And, btw, the Constitution itself is not such a law - it limits what the government can do with regard to firearms, not what private parties can do.

Yes, that's why I was trying to move away from the 2A side of the argument. Thanks for posting some things to ponder.

 

[Tilted]

So, in short, you are saying that the opinions contained in that piece I linked to are largely incorrect.

No, not really - not what I read of it anyway. It was leaning heavily on the California constitution, which expands free expression rights beyond what the U.S. Constitution provides. Indeed, it was in a case regarding California rules that the U.S. Supreme Court ruled that states could provide protections against private parties abridging free expression rights. That's what I alluded to in my previous post. And if I remember correctly, that document you linked to did indicate that the U.S. Supreme Court has generally ruled, though with some exceptions, that the U.S. Constitution does not prevent private parties from excluding people from their private property (i.e. even when that property is generally opened to the public). Those exceptions do not apply to retail establishments like Target though.

I'm out now, when I get home I can provide you with some cites. But to be clear again, California is a bit of an odd animal in this regard - it has more limiting rules (as far as private property rights go when it comes to free expression) than most states do.

 

[Gilligan]

California is a bit of an odd animal in this regard - it has more limiting rules (as far as private property rights go when it comes to free expression) than most states do.

No surprise there......

 

[LibertyBeacon]

So, in short, you are saying that the opinions contained in that piece I linked to are largely incorrect.

No surprise there.

 

[LibertyBeacon]

Really? Not many public places left (if any) where this is a true statement. Hence, the bar, restaurant and retail stores (publicly accessible places) ban of the activity. Some jurisdictions have gone so far as to ban smoking in private, membership only places too.

:woosh:

 

[Gilligan]

No surprise there.

So yr too stupid to see his subsequent response and clarification, obviously. How do you breath without help?

 

[Roman]

So yr too stupid to see his subsequent response and clarification, obviously. How do you breath without help?

 

[Tilted]

...

when I get home I can provide you with some cites.

...

From Hudgens v NLRB (U.S. Supreme Court, 1976) (citations omitted):

It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama. In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court's opinion as follows:

The Court in Hudgens then went on to repudiate a prior Supreme Court opinion (Amalgamated Food Employees Union v. Logan Valley Plaza (1968)) which had interpreted that exception more broadly to apply, under some circumstances, to privately owned shopping centers. The end result was that the exception (identified in Marsh (1946)) to the general rule (that general rule being that First Amendment free expression protections do not apply to private property, even that which is used to serve the public) was quite narrow and was based on private property being used to, in effect, perform government functions rather than just being open to the general public.

The Supreme Court then went on in Pruneyard Shopping Center v Robbins (1980) to consider "whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments." The Court concluded that they do not. In other words, the Court found that states could apply free speech protections to private property that was opened to the public even though the U.S. Constitution generally does not so apply.

 

[nutz]

:woosh:

Well then, Mo Ron, why don't you spell out where smoking is legal? And please include things that are more relevant. Public health and safety issues do not help prop up your private property argument.

 

[Midnightrider]

why dont you explain where it is illegal, since that is a much shorter list.

 

[LibertyBeacon]

Well then, Mo Ron, why don't you spell out where smoking is legal? And please include things that are more relevant. Public health and safety issues do not help prop up your private property argument.

Seriously dude?

Governments are outlawing smoking in lots of places. But the act of smoking is still legal. I don't smoke but if I wanted to I can purchase cigarettes. I can still smoke them if I want to. Not everywhere, but I can smoke.

You are missing the point entirely.

I am not anti-2A or anti-gun. Quite the contrary. You seem to be of the impression that because I am insisting this is a private vs. public property issue that I somehow by default am anti-gun. I do not understand your logic.

The point that I am making is that the anti-smoking rules are by government fiat. If a bar or restaurant voluntarily decided they want to ban smoking they can and should do that. But that's not what happened. The government (ostensibly the "will" of the people) said that smoking is not allowed on private property any more. This is NOT what is happening here. Target is deciding they are going to request guns not be brought on their property. This is not government fiat. This is a company acting in their best interest. Target are private property owners and they are able to make that decision. You and I don't have to agree with it, but we have to respect it.

And to be very clear: I firmly believe that any government telling a private property owner (i.e., a bar or restaurant proprietor) that they cannot allow smoking constitutes government over-reach. I firmly believe a private property ought to be able to configure his business as he sees fit, within parameters of extant case law -- including instituting a "no smoking" or "no guns" or "no garish Hawaiian shirts" policies.

Why do you think my argument is coming from a "public health and safety issues" POV? What specifically have I said that have caused you to think that? Please be specific and cite specific references.

I hope this helps.

 

[Larry Gude]

...and was based on private property being used to, in effect, perform government functions rather than just being open to the general public.

The Supreme Court then went on in Pruneyard Shopping Center v Robbins (1980) to consider "whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments." The Court concluded that they do not. In other words, the Court found that states could apply free speech protections to private property that was opened to the public even though the U.S. Constitution generally does not so apply.

This jogged a thought I used to include this argument; the state is already requiring business to perform gummint functions, collecting taxes, as a condition of being in business so, that adds to my argument of the state being able to also impose requirements in accommodations such as the cake thing and other discriminations.

Business's should not be treated as private citizens.

 

[Tilted]

This jogged a thought I used to include this argument; the state is already requiring business to perform gummint functions, collecting taxes, as a condition of being in business so, that adds to my argument of the state being able to also impose requirements in accommodations such as the cake thing and other discriminations.

Business's should not be treated as private citizens.

I couldn't disagree more. Yeah, perhaps businesses shouldn't be treated as private citizens in all regards - I suppose it depends on what we're talking about. But when it comes to the property rights we're talking about, those property rights - the very notion of owning things on which the concept of society is largely built - should persist, they should be respected.

You can fairly construe a business as being either its owners and/or operators themselves or as being something those owners and/or operators use for their own purposes. Or, perhaps most appropriately, you can construe a business as some combination of those two possibilities. I don't see how you can construe it as neither of them. It is not, for instance, something that exists on its own without having been created by humans (i.e. naturally) and can act other than as a result of human decisions and actions. That being the case, it's clear that the rights implicated are really those of the people involved - not of the businesses themselves. People voluntarily coming together to do something should, for the most part, retain their rights. Likewise, people using things to do something should, for the most part, retain their rights. It isn't the marriage that now has rights, it's the spouses themselves that still do. It isn't the bumper sticker that has the right to say "Obama sucks!", it's the person that owns or uses the printing press or the car that does. A business represents something in between those two example situations - it's part the people involved in the business and part something those people are using to their own ends. If you disagree, explain to me how it falls somewhere outside of that range or possibilities. Or how, if it doesn't fall outside that range, it isn't actually the people themselves whose rights are at stake - not some inanimate business' rights which are.

 

[Larry Gude]

I couldn't disagree more. Yeah, perhaps businesses shouldn't be treated as private citizens in all regards - I suppose it depends on what we're talking about. But when it comes to the property rights we're talking about, those property rights - the very notion of owning things on which the concept of society is largely built - should persist, they should be respected. .

My entire argument stems from the idea that in exchange for permission to do business in a given community, the community asserts rights it can NOT assert over private citizens. Among them are discrimination laws and other accommodations. We can argue over what should or shouldn't be on the table, obligation to sell to black folks or bake cakes for homosexuals but, if we agree that the community CAN make those demands, then we're simply disagree on what does or doesn't make the list. Yes?

 

[Vince]

Buddy of mine was asked to leave a Walmart store because his open-carry was supposedly making people nervous (pic below). Jeez..is everybody turning in to a sissy??

But seriously...I just don't see the need to open carry in nearly all situations I can imagine. The only time in my life I've open-carryed..a) whilst hunting b) when leaving my bar at 3 am with the cash drawer.

Concealed, on the other hand, and entirely different matter.

I want one. Dayum.

 

[Tilted]

My entire argument stems from the idea that in exchange for permission to do business in a given community, the community asserts rights it can NOT assert over private citizens. Among them are discrimination laws and other accommodations. We can argue over what should or shouldn't be on the table, obligation to sell to black folks or bake cakes for homosexuals but, if we agree that the community CAN make those demands, then we're simply disagree on what does or doesn't make the list. Yes?

Sure. We're arguing over what can make the list. That's the essence of most ideological disagreements, few things are definable in absolute terms (in this kind of context). I'm not for absolute freedom for everyone to do anything and everything they want - I don't, for example, think that a property owner should be free to release mustard gas into the air just because they are doing it from their own property. Such absolutes would essentially mean not being organized as a society at all, and losing the basic benefits of being a society. But, I'm for drawing the lines between individual liberty and chosen collective interests considerably more in favor of the former than they are generally drawn now - and, it should seem, considerably more so than most people are for.

But that's largely beside the conceptual point I was making in the preceding post (though not beside the point of the larger argument we're having). That point is that, when we're talking about the supposed liberties of a business, what we're really talking about are the liberties of the people that own or operate that business. We can rhetorically pretend that we're talking about a different animal - some other entity that maybe shouldn't be entitled to certain liberties - but in real world effect that's not what's at stake. What's at stake is, as in other contexts, the freedoms of the people involved.