THE DECISION by the Supreme Court Monday that Californians have a broader right of free speech than say, Washingtonians sounds pretty strange. But that's what the court said and, given the stinginess of its current majority where individual rights are concerned, the decision, in its way, is heartening.
The story of how Californians have acquired this right of super free speech begins a dozen years back when the membership of the Supreme Court was quite different. The justices held then that the owner of a large shopping center could not prevent citizens from exercising federal First Amendment rights, like free speech, on his property. A large shopping center, the court said (6 to 3), was something akin to a company town, not wholly public property but not wholly private, either.
Four years later, with four new justices, the court's view of shopping centers changed drastically. With President Nixon's appointees providing four of the necessary five votes, the court delivered a fatal blow to that first decision, although the justices waited another four years to declare it officially dead. The new view of shopping centers was that they were more like homes or individual, free-standing stores than like public places. Those who owned them, the justices declared (5 to 4), had a personal property right that allowed them to refuse to let anyone make speeches, solicit signatures on petitions or distribute literature on the premises.
Most state supreme courts, accustomed to tailoring the meaning of their own state constitutions to whatever the Supreme Court said about comparable provisions of the federal Constitution, wobbled right along the same path. But during the last five years, several legal scholars, some state courts and, finally, Justice William J. Brennan suggested that state courts really don't have to do that. w
At this point, the California Supreme Court confronted the case of a group of high school students who wanted to solicit signatures on a petition at a shopping center that covers 21 acres and contains at least 65 stores, 10 restaurants and a movie theater -- something big enough just about to apply for membership in the United Nations. The California court looked at the state constitution and found in it rights of free speech and petition that permitted the students' wishes to override the owner's wishes.
It is a little difficult to figure out from the language how the judges in Sacramento found so much broader individual rights in the state document than the justices in Washington had found in the federal Bill of Rights. The latter is cast in far more elegant and, seemingly, sweepng phrases. But they did, and they, not the men in Washington, have the last word on what the California constitution means. As long as their broader view of free speech does not run afoul of some property right the justices in Washington say exists in federal law, the view in Sacramento prevails.
What's encouraging about Monday's decision is that none of the members of the Supreme Court was prepared to say that federal property rights permit the owners of all shopping centers to treat their land as if it were totally private. Some of the justices did suggest that owners of smaller shopping centers may have such a right. But there is, at least, a recognition that a big shopping center is something other than a mom-and-pop store.
Someday, perhaps when the composition of the Supreme Court changes dramatically again, the justices will see the error of their ways and go back to their original view of shopping centers. Bold decisions like that of the California court will help; you get the impression that its judges were, among other things, telling the justices in Washington that their flip-flop eight years ago was simply wrong. In the meantime, however, some Americans -- those in California and perhaps in other places where state judges examine closely their state bills of rights -- will have broader First Amendment rights than the rest of us.