Case: 21-51178
Document: 00516474571
Page: 22
Date Filed: 09/16/2022
No. 21-51178
A newspaper is more than a passive receptacle or conduit for
news, comment, and advertising. The choice of material to go
into a newspaper, and the decisions made as to limitations on
the size and content of the paper, and treatment of public issues
and public officials—whether fair or unfair—constitute the
exercise of editorial control and judgment.
Id. at 258. Because a newspaper prints a curated set of material selected by
its editors, everything it publishes is, in a sense, the newspaper’s own speech.
And the newspaper has a right to “editorial control and judgment” over its
speech. Ibid. Newspapers thus cannot be compelled to “publish that which
reason tells them should not be published.” Id. at 256 (quotation omitted).
The second case is PruneYard. That case involved a group of high
school students who sought to distribute pamphlets and solicit signatures at
a local shopping mall. The California Supreme Court held that California law
protected the right to “speech and petitioning, reasonably exercised, in
shopping centers even when the centers are privately owned.” 447 U.S. at 78
(quotation omitted). The mall objected on First Amendment grounds,
arguing that “a private property owner has a First Amendment right not to
be forced by the State to use his property as a forum for the speech of others.”
Id. at 85.
The Supreme Court rejected the shopping mall’s challenge. It found
the state law exacted no penalty on the basis of the mall’s speech, and the
mall could “expressly disavow any connection with the [pamphleteers’]
message by simply posting signs in the area where the speakers or handbillers
st[oo]d.” Id. at 87–88. Nor did California law impermissibly compel the mall
itself to speak. To the contrary, because the mall was open to anyone, “[t]he
views expressed by members of the public in passing out pamphlets or
seeking signatures . . . will not likely be identified with those of the owner.”
Id. at 87. The Court also emphasized California’s neutrality among
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