When rights are in conflict with each other it generally just winds up being a bit of simple math to figure out who wins. In this instance it’s good to remember that speech rights include the ability to not talk, that not only does freedom of speech give you the right to wear/ display/ sell t-shirts it also give you the right to NOT wear/ display/ sell t-shirts. So in this situation the mall owner’s speech rights are in direct conflict with the store owner’s, no matter which path you take somebody is going to lose. So when two people’s rights have equal claim in a situation you look to other rights, in this situation the vast majority of other rights are a push or not applicable, they either apply equally or not at all.
Now all that's interesting. I'll have to think about the implications.
But there’s one set of rights that don’t apply equally in this, property rights, because in this situation one side is an owner of the property and the other is a renter of the same property. And a long standing piece of of our property rights jurisprudence is that when the conflict is over control of property the owner of that property has more rights than the renter.
In the directly above, I believe that everywhere you wrote "property" it would be better to write "real property". I believe that because there's another set of property involved in the situation and that is the personal or business property of the vendor who is the renter of the real property. And do "real property rights" prevail over "personal property rights" to the extent that the owner of the real property could just confiscate the personal property of the renter as was done by mall security? Could said owner have confiscated the personal property that was the cash in the renter's cash box? If confiscating personal property that is in the form of cash is theft would not confiscating personal property that is in the form of merchandise be theft? Unless of course there is some contractual arrangement which provides a contract right to confiscate the merchandise, in which case it becomes a matter of contract rights.
You wrote "property rights jurisprudence". That indicates real property rights are a matter of law rather than something more fundamental. Of course just law should have it's basis in something fundamental. Or do you think all property rights are just a matter of law, nothing deeper?
So while we say the mall owner’s property rights trump the store owner’s speech rights that’s just an over simplification to avoid a weird sounding sentence. The true sentence is that both party’s speech rights are a push but the owner’s property rights trump the renter’s property right’s and the combination means that the store owner’s speech rights get abridged.
What if in the above paragraph we substitute "right to life" for "speech rights" to get:
So while we say the mall owner’s property rights trump the store owner’s right to life that’s just an over simplification to avoid a weird sounding sentence. The true sentence is that both party’s right to life are a push but the owner’s property rights trump the renter’s property rights and the combination means that the store owner’s right to life gets abridged.
I only bring that up because some people I have run into seem to think what they call "property rights" when they mean "real property rights" trump the right to life.
It's pretty close to Christmas so don't feel you have to respond to any of this if you have other things to do. For myself, pretty soon I'm going to have to back off complicated posting and take time to mortar in more glass shards on the top of the chimney and apply a fresh coat of roof grease to the shingles.
I don’t think there’s really much difference between real property rights and personal property rights. Certainly when it comes to dealings with the government your home, car and person all get pretty close to the same level of search protection.
The t-shirts got confiscated because they were the center of the conflict. The kiosk owner just couldn’t seem to understand “don’t sell them here” means not to be selling them. And of course keep in mind that the mall owners said they’d give them back.
Jurisprudence doesn’t mean it’s a matter of law rather than something fundamental. It means there’s been legal cases revolving around it. We’ve got a ton of jurisprudence around free speech. The fundamental right is a broad scope concept, jurisprudence is how we define nitty gritty workings of it. There’s a fundamental right to property, but whether or not that right includes action X (which might or might not impinge in some way on somebody else’s rights) tends to get worked out in the courts.
Remember the castle doctrine. In most states now there are laws that outline that you can kill somebody for being illegally on your property because such an action poses a clear enough threat to your safety to warrant deadly response. You can oversimplify the description of that as “my property rights trump your life rights”, and the more proper description is similar to the mall situation, if you’re illegally on my property you probably mean to do me harm, so then it’s my right to life vs your right to life.