The blog 2011/01/25: Press releases from Rep. Oxford and MoGASP about Ms. Judd’s ADA complaint attracted a few comments, among them being one from Marshall P. Keith on 2011/01/30 at 2:15 pm taking issue with the notion that the ADA applied to private businesses. Mr. Keith’s comment, as it relates to his argument, is reproduced below, together with the referenced Supreme Court case which I’ve added for completeness.
Mr. Billy Williams, Executive Director of GASP of Texas, who is very knowledgeable on relevant case law, was good enough to provide the rebuttal which follows it below.
…. In this case I agree that the government has every right to restrict smoking as it is truly public property, my objection is using the ADA to achieve that goal. The “protected class” angle has long been used to strip property owners of their rights and this is just another cheap attempt to expand the scope of that philosophy. There is SCOTUS precedent showing that just because the public is invited in they do not lose private property status and to give the “protected class” more rights then the owner goes against every principle our country was founded on. The 14th amendment calls for equal protection from government
intrusion not equal access to private property!
Marshall P. Keith
SUPREME COURT OF THE UNITED STATES
407 U.S. 551
Lloyd Corp., Ltd. v. Tanner
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 71-492 Argued: April 18, 1972 — Decided: June 22, 1972
Respondents sought to distribute handbills in the interior mall area of petitioner’s large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner’s security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner’s action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief. The District Court, stressing that the center is “open to the general public” and “the functional equivalent of a public business district,” and relying on Marsh v. Alabama, 326 U.S. 501, andAmalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, held that petitioner’s policy of prohibiting handbilling within the mall violated respondents’ First Amendment rights. The Court of Appeals affirmed.
Held: There has been no dedication of petitioner’s privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center’s operations, and petitioner’s property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner’s tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with “all the attributes” of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 556-570.
446 F.2d 545, reversed and remanded. [p552]
POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 570.
Here’s Mr. Williams’ response:
Marshall Keith cites a case where it is acknowledged that a shopping mall was privately owned and that the owner could restrict passing out hand bills. Also, it involved free speech not access.
Whereas, the ADA and the Civil Rights Act recognize that privately owned property that is open to the public is “commercial” property and access to the property cannot be restricted on the basis of disability, race, ethnic origin, sex or religion. Simply put, once the owner opens his “private property” to the public, he cannot discriminate against a protected class in providing service.
Marshall Keith cites “facts” that are inapplicable in an attempt to prove a point that the Supreme Court has time and time again upheld.
GASP of Texas