I am now teaching the Takings unit of Property Law. In this somewhat incoherent body of caselaw, the Supreme Court often grapples with a recurring theme: what is the relevant denominator. In other words, when the government regulates a person's property, should the court consider (i) only the part of the property that is being regulated or (ii) the "parcel as a whole," including the parts of the property that are not being regulated. If you follow the first path, then ~100% of the person's relevant property interest is being regulated, and there is almost certainly a taking. If you follow the second path, then a smaller percentage of the person's property interest is being regulated, and there is likely no taking.
In 2018, as many will recall, I was protested at the CUNY Law School in New York. Depending how you count, my speech was disrupted for the first eight minutes or so. During that chaotic period, I was not able to speak. At around the eight-minute mark, the protestors departed. After that point, I was no longer heckled. I decided not to give my prepared speech, but rather sought to do Q&A. Even after the incident, I remained conflicted on whether my speech was disrupted. Indeed, I turned to (of all things) takings law to help address that issue. What was the relevant denominator? Was it the eight-minute segment that was entirely disrupted? Or was it the planned hour-long speech, of which about eight minutes was disrupted? I discussed this issue at some length in the First Amendment Law Review, starting at Page 46. Specifically, I explain that the "parcel as a whole" framework may work for a concrete property interest, but is a poor fit for a dynamic protest in which the outcome is uncertain:
But the "parcel as a whole" test is a very poor fit for free speech jurisprudence. This property-centric approach presumes stability while campus protests are volatile. In Penn Coal, the parties understood exactly how much land could not be mined. And in Penn Central, the parties knew exactly how much of the train station could still be utilized. That model works for metes and bounds. It doesn't work for a real-time discourse. Hindsight is always 20/20. When the event began, I had no idea how long the disruption would last. For all I knew, the students could have made noise nonstop. Why did the students at CUNY not protest me for the full hour? I take some credit. Rather than trying to deliver my lecture as planned, or shout over the students, I tried to engage them. I asked them questions to try to forge a common ground. That strategy defused the situation. But it could have backfired. The students could have shouted at me for the entire hour—or worse, continuously clanked a cowbell! The event also could have turned violent. Even after the students exited, I had a concern they would return at some point.
