Las Vegas

FN30. 307 U.S. 496, 515-16, 59 S.Ct. 954, 83 L.Ed. 1423 (1939).

FN31. 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).

The "right to exclude others" has been held to constitute a "fundamental element of private property ownership." [FN32] "The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights." [FN33]

FN32. See Armes v. Philadelphia, 706 F.Supp. 1156, 1164 (E.D.Pa.1989); and Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976).

FN33. Bresnik v. Beulah Park Ltd. P'ship, 67 Ohio St.3d 302, 617 N.E.2d 1096, 1097 (1993).

The cases that raise this issue generally concern one of three forums: (1) privately-owned shopping malls, (2) medical clinics, and (3) privately-owned streets or walkways. We conclude that private property does not lose its private nature because it is open to the public. [FN34]

FN34. See PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

Especially relevant and helpful to this discussion is the Michigan Court of Appeals decision in Commodities Export Co. v. City of Detroit. [FN35] In that case, a private business enterprise attempted to distribute commercial handbills on a privately-owned bridge and surrounding property of its closest competitor. [FN36] The owner of the bridge attempted to exclude the handbillers who, in turn, sued alleging that they had a First Amendment right to distribute their advertisements on the property because it was held open to the general public. [FN37] The court of appeals, after analyzing the United States Supreme Court's cases in this area, concluded that the rights surrounding private property ownership cannot be extinguished because the property is held open to the public. [FN38] The court went on to say that "a private property owner's rights cannot be infringed by allowing uncontested-to commercial advertising on its premises." [FN39]