Jasen, J.

The agent in charge of plainclothes detectives at Aqueduct Race Track gave the defendant a written notice to leave the premises forthwith.. The notice ordered the defendant not to enter or remain at any time ’ ’ upon the premises of the track1, and that in the event he failed to comply with the order, he would be subject to summary arrest for criminal trespass. The defendant^ upon receiving the notice, threw it on the floor and said, “ I’ll be back.”

Four months later, a detective for the Thoroughbred Racing Bureau at Aqueduct, saw the defendant enter the track. Since he knew the defendant was barred from the track, the detective *115approached the defendant to bring to mind the order of exclusion. Defendant responded with an obscenity and started running. The detective gave chase, and after apprehending the defendant, placed him under arrest for criminal trespass. After trial, the defendant was convicted and sentenced to five days in jail, from which judgment he now appeals.

Under section 140.05 of the Penal Law, as it then read, criminal trespass in the third degree is committed when one “ knowingly enters or remains unlawfully in or upon premises. ’ ’ Section 140.00 (subd. 5) defines “ Enter or remain unlawfully ” as entry by a person who "is not licensed or privileged to do so.”2

The rule is well established that the operator of a race track can “ exclude a person from attending its races s * * as long as the exclusion is not founded on race, creed, color or national origin.” (Madden v. Queens County Jockey Club, 296 N. Y. 249, 253, cert. den. 332 U. S. 761.) Moreover, the rules and regulations of the New York State Racing Commission specifically provide: “ [Undesirable persons to be ejected.] No person who is known or reputed to be a bookmaker or a vagrant within the meaning of the statutes of the State of New York, or a fugitive from justice, or whose conduct at a race track in New York or elsewhere, is or has been improper, obnoxious, unbecoming or detrimental to the best interests of racing, shall enter or remain upon the premises of any licensed association conducting a race meeting under the jurisdiction of the commission; and all such persons shall upon discovery or recognition be forthwith ejected [19 NYCRR 4.46]. ’ ’ The regulation imposes upon the licensed association the burden of carefully screening its patrons, and excluding or expelling any undesirable persons. (See Matter of Vaintraub v. New York Racing Assn., 28 A D 2d 660; Gottlieb v. Sullivan County Harness Racing Assn., 25 A D 2d 798.)

Not only did the association in this case eject the defendant from the race track, as it had a right to do, but it also served a written notice directing him not to enter the Aqueduct Race Track at any time in the future. There can be no doubt that this *116order “ not to enter ” the race track was violated by the defendant at the time he entered the track.

The defendant, however, argues that the sale of an admission ticket to him by an employee of the association on the date of his arrest authorized him to enter the race track and had the effect of countermanding the previous order of the association ‘ ‘ not to enter ’ ’.

While it is ordinarily true that the purchase of an admission ticket to a race track or a place of amusement entitles one to enter the premises, this right is not without limitation, and, of course, is subject to revocation. (Aaron v. Ward, 203 N. Y. 351, 355.)

Where, as here, a purchaser of an admission ticket is explicitly excluded as an undersirable person from the track by a lawful written order, the mere purchase of a ticket does not have the effect of nullifying the existing exclusion order since there is lacking the necessary contractual requirement of a “ meeting of minds ” at the time of the sale of the ticket. (Collister v. Hayman, 183 N. Y. 250, 253; Said v. Butt, [1920] 3 K. B. 497; see, also, Greenfeld v. Maryland Jockey Club, 190 Md. 96, 101; Powell v. Weber-Stair Co., 125 S. W. 255 [Ky.]; 1 Williston, Contracts, § 95, p. 349.) The cashier, whose primary function is to sell tickets to anyone paying the admission price, is not required, nor does he have the authority to bar prospective patrons as undesirables. The responsibility to screen patrons and to exclude or expel any undesirable person lies exclusively with the track protective bureau who had issued the original ‘ ‘ not to enter ’ ’ order.

Relevant policy considerations would also seem to weigh heavily in the result we reach. The State Racing Commission regulation (19 NYCRR 4.46) is explicit that “ No person who is known or reputed to be a bookmaker * * * shall enter * * * upon the premises of any licensed * * * race meeting ”. (Emphasis added.) To hold that the sale of a ticket revokes an existing lawful order “ not to enter ”, would prevent effective enforcement of the commission’s regulation barring certain undesirable persons from race tracks. Under such an interpretation, an undesirable person would never be subject to criminal prosecution for violating the “ not to enter ” order, but would merely risk expulsion from the race track upon discovery on the *117premises. This, in our view, would place an unreasonable burden upon the track officials in enforcing a reasonable and desirable policy of our State.

In short, defendant was guilty of criminal trespass when he entered the track premises with knowledge that he was not “ licensed or privileged to do so.”

Moreover, as noted above, criminal trespass is defined as knowingly entering or remaining unlawfully in or upon the premises of another. The word ‘ remain ’ in the phrase enter or remain ’ is designed to be applicable to cases in which a person enters with ‘ license or privilege ’ but remains on the premises after the termination of such license or privilege.” (Practice Commentary, Penal Law, § 140.00, pp. 341-342.)

The detective who arrested the defendant testified that shortly after defendant came through the turnstile, he stated to him, “ Vito, where you go; you know the boss said if you come in here, we’re locking you up in jail.” The detective, who was present when the original written notice was served upon the defendant, was, in effect, giving the defendant another notice to leave the premises. In short, he revoked the defendant’s license, which, of course, was permissible, even though defendant was already upon the premises. (Aaron v. Ward, supra; see, also, Madden v. Queens County Jockey Club, supra.) The defendant’s subsequent actions — e.g., refusal to obey the request to leave and running away inside the track—were sufficient to establish criminal trespass under the alternative provision of section 140.05. (Cf. Rager v. McCloskey, 305 N. Y. 75, 79.)

Accordingly, the judgment of conviction should be affirmed.

Chief Judge Fuld and Judges Scileppi, Bergan, Breitel and Gibson concur; Judge Burke taking no part.

Judgment affirmed.

The opinion of the Court was delivered by

PASHMAN, J.

Since January 30, 1979, appellant Resorts International Hotel, Inc. (Resorts) has excluded respondent, Kenneth Uston, from the *166blackjack tables in its casino because Uston’s strategy increases his chances of winning money. Uston concedes that his strategy of card counting can tilt the odds in his favor under the current blackjack rules promulgated by the Casino Control Commission (Commission). However, Uston contends that Resorts has no common law or statutory right to exclude him because of his strategy for playing blackjack.

We hold that the Casino Control Act, N.J.S.A. 5:12-1 to -152 gives the Commission exclusive authority to set the rules of licensed casino games, which includes the methods for playing those games. The Casino Control Act therefore precludes Resorts from excluding Uston for card counting. Because the Commission has not exercised its exclusive authority to determine whether card counters should be excluded, we do not decide whether such an exclusion would be lawful.

I

Kenneth Uston is a renowned teacher and practitioner of a complex strategy for playing blackjack known as card counting.1 Card counters keep track of the playing cards as they are dealt and adjust their betting patterns when the odds are in their favor. When used over a period of time, this method allegedly ensures a profitable encounter with the casino.

Uston first played blackjack at Resorts’ casino in November 1978. Resorts took no steps to bar Uston at that time, apparently because the Commission’s blackjack rules then in operation minimized the advantages of card counting.

On January 5, 1979, however, a new Commission rule took effect that dramatically improved the card counter’s odds. N.J. A.C. 19:47-2.5. The new rule, which remains in effect, restrict*167ed the reshuffling of the deck in ways that benefitted card counters. Resorts concedes that the Commission could promulgate blackjack rules that virtually eliminate the advantage of card counting. However, such rules would slow the game, diminishing the casino’s “take” and consequently its profits from blackjack gaming.

By letter dated January 30, 1979, attorneys for Resorts wrote to Commission Chairman Lordi, asking the Commission’s position on the legality of summarily removing card counters from its blackjack tables. That same day, Commissioner Lordi responded in writing that no statute or regulation barred Resorts from excluding professional card counters from its casino. Before the day had ended, Resorts terminated Uston’s career at its blackjack tables, on the basis that in its opinion he was a professional card counter. Resorts subsequently formulated standards for identification of card counters and adopted a general policy to exclude such players.2

The Commission upheld Resorts’ decision xo exclude Uston. Relying on Garifine v. Monmouth Park Jockey Club, 29 N.J. 47 (1959), the Commission held that Resorts enjoys a common law right to exclude anyone it chooses, as long as the exclusion does not violate state and federal civil rights laws. The Appellate Division reversed, 179 N.J.Super. 223 (1981). Although we interpret the Casino Control Act, N.J.S.A. 5:12-1 to -152 somewhat differently than did the Appellate Division, we affirm that court’s holding that the Casino Control Act precludes Resorts from excluding Uston. The Commission alone has the authority to exclude patrons based upon their strategies for playing licensed casino games. Any common law right Resorts may have had to exclude Uston for these reasons is abrogated by the act. We therefore need not decide the precise extent of Resorts’ *168common law right to exclude patrons for reasons not covered by the act. Nonetheless, we feel constrained to refute any implication arising from the Commission’s opinion that absent supervening statutes, the owners of places open to the public enjoy an absolute right to exclude patrons without good cause. We hold that the common law right to exclude is substantially limited by a competing common law right of reasonable access to public places.

II

This Court has recognized that “[t]he statutory and administrative controls over casino operations established by the [Casino Control] Act are extraordinarily pervasive and intensive.” Knight v. Margate, 86 N.J. 374, 380-81 (1981). The almost 200 separate statutory provisions “cover virtually every facet of casino gambling and its potential impact upon the public.” Id. at 381. See Bally Mfg. Corp. v. N. J. Casino Control Comm’n, 85 N.J. 325 (1981) (upholding Commission regulation barring a licensed casino from acquiring more than 50% of its slot machines from any one manufacturer). These provisions include a preemption clause, stating that the act prevails over “any other provision of law” in conflict or inconsistent with its provisions. N.J.S.A. 5:12-133(b). Moreover, the act declares as public policy of this State “that the institution of licensed casino establishments in New Jersey be strictly regulated and controlled.” N.J.S.A. 5:12-1(13).

At the heart of the Casino Control Act are its provisions for the regulation of licensed casino games. N.J.S.A. 5:12-100 provides:

... e. All gaming shall be conducted according to rules promulgated by the commission. All wagers and pay-offs of winning wagers at table games shall be made according to rules promulgated by the commission, which shall establish such minimum wagers and other limitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum participation by casino patrons; ....

*169This provision on games and gaming equipment reinforces the general statutory provisions codified at N.J.S.A. 5:12-70. Those provisions provide in part:

The Commission shall, without limitation on the powers conferred in the preceding section, include within its regulations the following specific provisions in accordance with the provisions of the act;

******#♦

f. Defining and limiting the areas of operation, the rules of authorized games, odds, and devices permitted, and the method of operation of such games and devices; ....

Pursuant to these statutes, the Commission has promulgated exhaustive rules on the playing of blackjack. N.J.A.C. 19:47-2.1 to -2.13. These rules cover every conceivable aspect of the game, from determining how the cards are to be shuffled and cut, N.J.A.C. 19:47-2.5, to providing that certain cards shall not be dealt “until the dealer has first announced ‘Dealer’s Card’ which shall be stated by the dealer in a tone of voice calculated to be heard by each person at the table.” N.J.A.C. 19:47-2.6(g). It is no exaggeration to state that the Commission’s regulation of blackjack is more extensive than the entire administrative regulation of many industries.

These exhaustive statutes and regulations make clear that the Commission’s control over the rules and conduct of licensed casino games is intended to be comprehensive. The ability of casino operators to determine how the games will be played would undermine this control and subvert the important policy-of ensuring the “credibility and integrity of the regulatory process and of casino operations.” N.J.S.A. 5:12-l(b). The Commission has promulgated the blackjack rules that give Uston a comparátive advantage, and it has sole authority to change those rules. There is no indication that Uston has violated any Commission rule on the playing of blackjack. N.J. A.C. 19:47-2.1 to -2.13. Put simply, Uston’s gaming is “conducted according to rules promulgated by the Commission.” N.J.S.A. 5:12-100(e). Resorts has no right to exclude Uston on *170grounds that he successfully plays the game under existing rules.3

Ill

Resorts claimed that it could exclude Uston because it had a common law right to exclude anyone at all for any reason. While we hold that the Casino Control Act precludes Resorts from excluding Uston for the reasons stated, it is important for us to address the asserted common law right for two reasons. First, Resorts’ contentions and the Commission’s position concerning the common law right are incorrect. Second, the act has not completely divested Resorts of its common law right to exclude.

The right of an amusement place owner to exclude unwanted patrons and the patron’s competing right of reasonable access both have deep roots in the common law. See Arterburn, “The Origin and First Test of Public Callings,” 75 U.Pa.L.Rev. 411 (1927); Wyman, “The Law of Public Callings as a Solution of the Trust Problem,” 17 Harv.L.Rev. 156 (1904). In this century, however, courts have disregarded the right of reasonable access in the common law of some jurisdictions at the time the Civil War Amendments and Civil Rights Act of 1866 were passed.

*171As Justice Goldberg noted in his concurrence in Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964):

Underlying the congressional discussions and at the heart of the Fourteenth Amendment’s guarantee of equal protection, was the assumption that the State by statute or by “the good old common law” was obligated to guarantee all citizens access to places of public accommodation. [378 U.S. at 296, 84 S.Ct. at 1852, 12 L.Ed.2d at 839, Goldberg, J., joined by Warren, C. J. and Douglas, J., concurring]

See, e.g., Ferguson v. Gies, 82 Mich. 358, 46 N.W. 718 (1890) (after passage of the Fourteenth Amendment, both the civil rights statutes and the common law provided grounds for a non-white plaintiff to recover damages from a restaurant owner’s refusal to serve him, because the common law as it existed before passage of the civil rights laws “gave to the white man a remedy against any unjust discrimination to the citizen in all public places”); Donnell v. State, 48 Miss. 661 (1873) (state’s common law includes a right of reasonable access to all public places).

The current majority American rule has for many years disregarded the right of reasonable access,4 granting to. proprietors of amusement places an absolute right arbitrarily to eject or exclude any person consistent with state and federal civil rights laws. See Annot., “Propriety of exclusion of persons from horseracing tracks for reasons other than color or race,” 90 A.L.R.M 1361 (1979); Turner & Kennedy, “Exclusion, Ejection and Segregation of Theater Patrons,” 32 Iowa L.Rev. 625 (1947). See also Garifine v. Monmouth Park Jockey Club, 29 N.J. at 50.

At one time, an absolute right of exclusion prevailed in this state, though more for reasons of deference to the noted English precedent of Wood v. Leadbitter, 13 M&W 838, 153 Eng.Rep. 351, (Ex.1845), than for reasons of policy. In Shubert v. Nixon *172Amusement Co., 83 N.J.L. 101 (Sup.Ct.1912), the former Supreme Court dismissed a suit for damages resulting from plaintiff’s ejection from defendants’ theater. Noting that plaintiff made no allegation of exclusion on the basis of race, color or previous condition of servitude, the Court concluded:

In view of the substantially uniform approval of, and reliance on, the decision in Wood v. Leadbitter in our state adjudications, it must fairly be considered to be adopted as part of our jurisprudence, and whatever views may be entertained as to the natural justice or injustice of ejecting a theater patron without reason after he has paid for his ticket and taken his seat, we feel constrained to follow that decision as the settled law. [83 N.J.L. at 106]

It hardly bears mention that our common law has evolved in the intervening 70 years. In fact, Leadbitter itself was disapproved three years after the Shubert decision by Hurst v. Picture Theatres Limited, (1915) 1 K.B. 1 (1914). Of far greater importance, the decisions of this Court have recognized that “the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property.” State v. Schmid, 84 N.J. 535, 562 (1980).

State v. Schmid involved the constitutional right to distribute literature on a private university campus. The Court’s approach in that case balanced individual rights against property rights. It is therefore analogous to a description of the common law right of exclusion. Balancing the university’s interest in controlling its property against plaintiff’s interest in access to that property to express his views, the Court clearly refused to protect unreasonable exclusions. Justice Handler noted that

Regulations ... devoid of reasonable standards designed to protect both the legitimate interests of the University as an institution of higher education and the individual exercise of expressional freedom cannot constitutionally be invoked to prohibit the otherwise noninjurious and reasonable exercise of [First Amendment] freedoms.” [Id. at 567]

In State v. Shack, 58 N.J. 297 (1971), the Court held that although an employer of migrant farm workers “may reasonably require” those visiting his employees to identify themselves, “the employer may not deny the worker his privacy or interfere *173with his opportunity to live with dignity and to enjoy associations customary among our citizens.” Id. at 308. The Court reversed the trespass convictions of an attorney and a social services worker who had entered the property to assist farm-workers there.

Schmid recognizes implicitly that when property owners open their premises to the general public in the pursuit of their own property interest^, they have no right to exclude people unreasonably. On the contrary, they have a duty not to act in an arbitrary or discriminatory manner toward persons who come on their premises. That duty applies not only to common carriers, Messenger v. Pennsylvania Railroad Co., 37 N.J.L. 531 (E. & A. 1874), innkeepers, see Garifine, supra, owners of gasoline service stations, Streeter v. Brogan, 113 N.J.Super. 486 (Ch.Div.1971), or to private hospitals, Doe v. Bridgeton Hospital Ass’n, Inc., 71 N.J. 478 (1976), cert. den., 433 U.S. 914, 97 S.Ct. 2987, 53 L.Ed.2d 1100 (1977), but to all property ^owners who open their premises to the public. Property owners have no legitimate interest in unreasonably excluding particular members of the public when they open their premises for public use.

No party in this appeal questions the right of property owners to exclude from their premises those whose actions “disrupt the regular and essential operations of the [premises],” State v. Schmid, 84 N.J. at 566 (quoting Princeton University Regulations on solicitation), or threaten the security of the premises and its occupants, see State v. Shack, 58 N.J. at 308. In some circumstances, proprietors have a duty to remove disorderly or otherwise dangerous persons from the premises. See Holly v. Meyers Hotel and Tavern, Inc., 9 N.J. 493, 495 (1952). These common law principles enable the casino to bar from its entire facility, for instance, the disorderly, the intoxicated, and the repetitive petty offender.

*174Whether a decision to exclude is reasonable must be determined from the facts of each case.5 Respondent Uston does not threaten the security of any casino occupant. Nor has he disrupted the functioning of any casino operations. Absent a valid contrary rule by the Commission, Uston possesses the usual right of reasonable access to Resorts International’s blackjack tables.

IV

Although the Commission alone has authority to exclude persons based upon their methods of playing licensed casino games, that authority has constitutional and statutory limits. We expressly decline to decide whether the Casino Control Act empowers the Commission to exclude card counters.

If the Commission decides to consider promulgating a rule banning card counters, it should review the statutory mandates regarding both the public policy of this State and the rules of licensed games. The Casino Control Act commands the Commission to regulate gambling with such “limitations as may be necessary to assure the vitality of casino operations and fair odds to and maximum participation by casino patrons,” N.J.S.A. 5:12-100(e) (emphasis added). The Court recognizes that the goals of casino vitality, fair odds to all players and maximum player participation may be in conflict. It is the Commission which must strike the appropriate balance.

The Commission should also consider that the Legislature has declared as public policy of this state that “[cjonfidence in casino gaming operations is eroded to the extent the State of New Jersey does not provide a regulatory framework for casino gaming that permits and promotes stability and continuity in *175casino gaming operations.” N.J.S.A. 5:12-1(14). Moreover, “[a]n integral and essential element of the regulation and control of such casino facilities by the State rests in the public confidence and trust in the credibility and integrity of the regulatory process and of casino operations.” N.J.S.A. 5:12-1(6). The exclusion of persons who can play the licensed games to their advantage may diminish public confidence in the fairness of casino gaming. To the extent persons not counting cards would be mistakenly excluded, public confidence might be further diminished. However, the right of the casinos to have the rules drawn so as to allow some reasonable profit must also be recognized in any realistic assessment. The Commission should consider the potentially broad ramifications of excluding card counters before it seeks to promulgate such a rule. Fairness and the integrity of casino gaming are the touchstones.

V

In sum, absent a valid Commission regulation excluding card counters, respondent Uston will be free to employ his card-counting strategy at Resorts’ blackjack tables. There is currently no Commission rule banning Uston, and Resorts has no authority to exclude him for card counting. However, it is not clear whether the Commission would have adopted regulations involving card counters had it known that Resorts could not exclude Uston. The Court therefore continues the temporary order banning Uston from Resorts’ blackjack tables for 90 days from the date of this opinion. After that time, respondent is free to play blackjack at Resorts’ casino absent a valid Commission rule excluding him.

For affirmance—Justices PASHMAN, CLIFFORD, SCHREIBER, HANDLER and O’HERN—5.

For reversal—None.

Chief Justice PORITZ

delivered the opinion of the Court.

This case raises a question about the right of the public to use a 480-foot wide stretch of upland sand beach in Lower Township, Cape May County, owned by respondent Atlantis Beach Club, Inc., and operated as a private club. We hold today that, in the circumstances presented here, and on application of the factors set forth in Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, 326, 471 A.2d 355, cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984), the public trust doctrine requires the Atlantis property to be open to the general public at a reasonable fee for services provided by the owner and approved by the Department of Environmental Protection.

I.

Atlantis Beach Club, Inc. (Atlantis or Beach Club) is the successor in title to a Riparian Grant, dated January 17, 1907, from the State of New Jersey to the Cape May Real Estate Company. The grant encompassed a large area not relevant to this litigation except for certain submerged land that, in 1907, was located within the bed of Turtle Gut Inlet, a body of water that connected to the Atlantic Ocean. Today, the land is described on the Lower Township Municipal Tax Map as Block 730.02, Lot 1.02. No longer submerged, the lot extends to the mean high water line from a bulkhead running north/south along the western boundary of the property. That western boundary lies to the east of an *43unpaved section of Raleigh Avenue (which runs east/west), whereas the mean high water line serves as the boundary for Lot 1.03, which is entirely submerged beneath the ocean at high tide; Lot 1.02, however, consists of dry sand beach and protected dunes. The distance from the bulkhead (the western boundary of Lot 1.02) to the mean high water line is about 342 feet. Persons using the beach for recreational purposes cross over the bulkhead by walking on a boardwalk pathway that traverses the dunes and curves southward to the beach. The dry sand beach area lies beyond the dunes and extends to the mean high water line.

A pathway runs east/west along the unpaved section of Raleigh Avenue to the approximate midpoint of the bulkhead and then, as described, across the bulkhead and through the dunes. The pathway was approved by the New Jersey Department of Environmental Protection (DEP or Department) in a 1986 permit issued pursuant to the Coastal Area Facility Review Act (CAF-RA), N.J.S.A 13:19-1 to -21. The CAFRA permit related to the construction of the La Vida del Mar Condominiums (La Vida), a four-story, twenty-four-unit condominium structure along Raleigh Avenue, and required as a condition of condominium construction public access “down the center of Raleigh Avenue, ... and [by means of] a timber walkway over the bulkhead to the beach.” The permit also required Department-approved signs marking public access to be “conspicuously located at the end of [the] Raleigh Avenue pavement” and maintained by the condominium homeowners’ association for the life of the condominium project.1

*44As noted, the La Vida building stands immediately to the west of the bulkhead along the western boundary of the Atlantis property. Another four-story multiple unit condominium complex called the La Quinta del Mar sits to the south of La Vida and the path that runs from the end of the pavement on Raleigh Avenue and over the bulkhead. To the west of La Quinta del Mar are the Villa House and La Quinta Towers, both of which contain residential units. Seapointe Village (Seapointe) is located to the north of La Vida and consists of several structures, including a six-story, one-hundred-room hotel, and more than five hundred residential units. Seapointe occupies 63.4 acres, including the beach property to the north of the Atlantis beach.

When the Seapointe property was developed, the DEP, as a condition of its 1987 CAPRA permit, required the beach in front of Seapointe to be open to the public. Under the terms of the permit, Seapointe is allowed to sell daily, weekly, and seasonal beach passes at rates approved by the DEP, although residents can access the area beyond the mean high water line free-of-charge. Public access through Seapointe’s beach along the water’s edge is also free-of-charge, and beach usage fees, regulations, and operations are subject to continued periodic review and approval by the DEP. Seapointe provides lifeguards on its beach, as well as public restrooms, outdoor showers, and parking facilities. In August 2002 when this litigation began, the rates for use of the Seapointe beach were, per person, $2.50 a day, $10 a week, and $40 a season; however, Seapointe had submitted an application for a fee increase that was pending at that time.

The United States Coast Guard owns the property to the south of the Atlantis beach. That property is closed to the public from *45April 1 through August 15 to protect the piping plover, an endangered species, during breeding season. Although the Coast Guard beach is unavailable for most of the summer season, the property is open to the public the rest of the year.

Atlantis is located in the Diamond Beach neighborhood, a residential area of approximately three blocks by nine blocks that contains the only beach in Lower Township facing the Atlantic Ocean. In addition to the beach access point on the Atlantis property at the end of Raleigh Avenue, there are two other access points in Diamond Beach north of Atlantis: one at the eastern end of Dune Drive and the other at the eastern end of Memphis Avenue. Access is blocked by condominium buildings located at the terminus of the other streets in the area. According to certifications filed by residents of La Quinta Towers in support of plaintiff Raleigh Avenue Beach Association (Association), the closest free entry to the beach is Dune Drive, a nine-block walk from Raleigh Avenue and a distance of approximately one-half mile. The beach access problem in Lower Township is further compounded by the limited number of parking spaces available in the Diamond Beach neighborhood.

Until 1996, the beach on the Atlantis property was open to the public free-of-charge. In the summer of 1996, however, Atlantis established a private beach club known at the time as Club Atlantis Enterprises. The club limited public access to its beach by charging a fee of $300 for six seasonal beach tags. As of July 2003, a sign posted on the gate2 at the entrance to the Atlantis beach read: “FREE PUBLIC ACCESS ENDS HERE/MEMBERSHIP AVAILABLE AT GATE.” Atlantis’s 2003 Rules and Regulations, also posted, provided the following warning:

ANYONE ATTEMPTING TO USE, ENTER UPON OR CROSS OVER CLUB PROPERTY FOR ANY REASON WITHOUT CLUB PERMISSION OR WHO IS NOT IN POSSESSION OF A VALID TAG AND AUTHORIZED TO USE SUCH TAG WILL BE SUBJECT TO PROSECUTION, CIVIL AND OR CRIMI*46NAL[,] TO THE FULLEST EXTENT PERMITTED BY LAW[,] INCLUDING ALL COSTS AND LEGAL FEES INCURRED BY THE CLUB.

Prior to the commencement of this litigation, the membership fee for new members and members who had joined the beach club in 2002 was set at $700 for the 2003 summer season. Members were entitled to eight beach tags per household.3 Atlantis also sold “Access Easements” at $10,000 each, paid in cash.4 Easement holders were required to pay an annual membership fee determined by dividing the actual costs associated with operating the beach club by the total number of members (both easement holders and yearly members) to arrive at the holder’s proportionate share. According to a March 14, 2003 letter to members, the payment of membership fees or the purchase of an easement entitled them “to use and enjoy the [club] facilities,” which included uniformed private security personnel on club grounds, as well as lifeguards on duty from June 21 through September 1, 2003, seven days a week, between the hours of 10:00 a.m. and 5:00 p.m.

II.

On June 22, 2002, Tony Labrosciano, a member of the Association, was issued a summons for trespassing when he attempted to leave the wet sand area and walk across the Atlantis property to the eastern terminus of Raleigh Avenue in order to take the most direct route back to his home. On July 26, 2002, Atlantis filed an Order to Show Cause and Verified Complaint against Labrosciano, other unnamed persons, Lower Township, and the State of New Jersey, seeking, among other things, to enjoin Labrosciano and members of his class from “trespassing, entering onto and aceess-*47ing” the Atlantis property, and declaring that Atlantis is not required to provide the public with access to or use of any portion of its property or the adjacent ocean.

The Association, which consists of individuals who reside on Raleigh Avenue in the Diamond Beach neighborhood, filed a complaint on August 14, 2002 against Atlantis, the Lower Township Police Department, Seapointe Village Association, and the State of New Jersey.5 The Association claimed that Atlantis was in violation of the public trust doctrine and sought free public access through the Atlantis property to the beach, and to a sufficient amount of dry sand above the mean high water line to permit the public to enjoy the beach and beach-related activities. That Association action was subsequently consolidated with the Atlantis action.6

On June 2, 2003, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AO/NOCAPA) to Atlantis for conducting CAFRA-regulated activities on its property without obtaining required permits.7 The DEP had determined, on completion of a May 23, 2003 compliance review, that Atlantis had engaged in prohibited conduct, including excavation of sand dunes and grading of the Atlantis beach, in violation of the CAFRA Coastal Zone Management Rules (N.J.AC. 7:7E-3A.l *48to -3A.5) and a July 2, 1999 Administrative Consent Order, and without the requisite CAFRA General Permit for Beach and Dune Maintenance. The AO/NOCAPA ordered Atlantis to restore the dunes that had been destroyed and to install sand fencing in a zigzag pattern throughout the restoration area. Two days later, on June 5, 2003, the DEP notified Atlantis that it had not obtained CAFRA permits to erect certain structures on its beach and that the necessary permit applications were to be submitted to the DEP within thirty days.

On or about July 10, 2003, the DEP moved before the trial court for partial summary judgment and dismissal of all claims against it. The Department sought a ruling on the question whether the beach along the Atlantic Ocean in the Diamond Beach area is subject to the public trust doctrine such that an individual can walk along the ocean shore on the Atlantis property without fear of prosecution for trespassing or for a disorderly persons offense. On the question of access, the Department asked the court to defer to the pending administrative proceedings.

On September 19, 2003, the trial court issued a ruling from the bench, followed by both a Memorandum of Decision, dated September 22, 2003, and an Order of Final Judgment, dated November 3, 2003. The court considered and disposed of issues relating to both horizontal and vertical access to the Atlantis beach under the public trust doctrine. More specifically, the court held that the public was entitled to a right of horizontal access to the ocean by means of “a three-foot wide strip of dry sand, immediately landward of the mean high water line and extending from the northern to the southern boundaries of [the Atlantis] [property, which may be utilized by the public, at no charge, for the purpose of entering into and exiting from” the area located below the mean high water line. The trial court also held that the public was entitled to limited vertical access to the ocean, consisting of a path from the bulkhead through the dunes on the property. Although acknowledging the DEP’s authority to regulate the location, structure, and protection of dunes, and therefore, the placement of the *49path, the court focused on the limited nature of the public right to vertical access:

Insofar as is practicable, the path shall exit [the Atlantis] [property within the portion of the [property upon which the dunes are located. In no event shall the path cross the remaining portion of the [property other than along the northern boundary thereof or provide, without Atlantis’ consent, public access to any other portion of the [property, other than ... [h]orizontal [a]ccess, landward of the mean high water line.

In the court’s view, “the Public Trust Doctrine does not apply to permit the Department to regulate the use of the Beach Area.”

Finally, Atlantis was prohibited from charging a fee or otherwise restricting the right of the public to horizontal or vertical ocean access. The court determined, however, that the provision of such services as lifeguards, equipment, or other facilities by Atlantis would entitle the Beach Club, on application to and with the DEP’s approval, to charge a commercially reasonable fee to members of the public who use the horizontal access to swim in the ocean. The court denied without prejudice the Atlantis application to amend its pleadings so as to assert a regulatory takings claim.

The State and the Association appealed.8 While the appeal was pending, by a March 9, 2004 letter Atlantis notified its members about the 2004 beach fee schedule. Returning members from 2003 were required, as in the prior year, to pay $700 for eight beach tags, whereas the easement price was increased from $10,000 to $15,000. On April 20, 2004, the State moved before the Appellate Division for a stay of the 2004 beach fees. The Appellate Division granted the State’s motion on May 4, ordering that no beach fees could be charged pending oral argument in the matter and until further order of that court. The court also directed Atlantis to return to its members any payments made after January 1, 2004.

*50On motion by Atlantis for clarification, and after oral argument, the Appellate Division issued an interim order on May 20, 2004. Pending opinion, the court granted “[t]he public ... vertical access to the beach ... upon the boardwalk pathway which currently exists through the dunes on the subject property as an extension of Raleigh Avenue.” The panel also found that “[t]he public [had] the right to use all of the dry sand and complete horizontal access to the subject property, including the ocean.” Atlantis was allowed to charge a reasonable and comparable fee for the use of its beach pursuant to a DEP-approved fee schedule covering daily, weekly, monthly, and seasonal tags, but only if the beach club provided lifeguard services comparable to municipally-provided services, beach clean-up with regular trash removal, and shower facilities. Atlantis could choose not to issue beach tags or to charge fees for service, in which ease public access to the beach and ocean would remain open and free.

On June 3, 2004, the Appellate Division issued its opinion. Raleigh Ave. Beach Ass’n v. Atlantis Beach Club, Inc., 370 N.J.Super. 171, 851 A.2d 19 (2004). The court reaffirmed the central premise of its Order that “Atlantis cannot limit vertical or horizontal public access to its dry sand beach area nor interfere with the public’s right to free use of the dry sand for intermittent recreational purposes connected with the ocean and wet sand.” Id. at 176, 851 A.2d 19. As permitted under the Order, Atlantis could charge a fee to members of the public who remain on and use its beach for an extended period of time, as long as Atlantis cleans the beach, picks up trash regularly, and provides shower facilities. Ibid. The panel ruled further that Atlantis was required to provide customary lifeguard services for members of the public who use the ocean areas up to the mean high water line, regardless of whether those individuals remain on the Atlantis beach area or merely pass through. Ibid. Reasonable and comparable fees, approved by the DEP, would be allowed in an amount sufficient to cover operating costs, including an amount related to management services. Ibid. The court remanded to the DEP the issue of the appropriate fee to be charged for beach use, ordering *51the Department to approve a fee schedule by June 10, 2004, so as not to unduly interfere with the beach season beginning June 15, 2004. Id. at 194, 851 A.2d 19.

On remand, Atlantis submitted an Application for General CAF-RA Permit and, on June 10, 2004, the DEP issued an interim beach badge schedule setting fees at $3 per day, $15 per week, $40 per month, and $55 per season, effective immediately. Shortly thereafter, Atlantis filed a Notice of Petition for Certification and moved before the Appellate Division for a stay pending this Court’s review of its Petition. The Appellate Division denied the motion by Order dated July 19, 2004, wherein the court further directed that all non-member beach badges must be transferable, that no photo identification requirement may be associated with non-member badges, and that no liability waiver may be required of anyone seeking a badge. On August 2, 2004, Atlantis moved before this Court for a stay of the Appellate Division’s opinion and order pending certification. The Court denied the Atlantis motion on August 13, 2004, and granted certification on September 29, 2004. 181 N.J. 548, 859 A.2d 693 (2004).

At oral argument before us, counsel for Atlantis conceded vertical access to the ocean by the public from the boardwalk pathway at the terminus of Raleigh Avenue, over the bulkhead and the dunes and across the dry sand area to the ocean. Atlantis maintained its position that persons who are not members of the Beach Club may only walk along the three feet of dry sand that lie landward of the mean high water line, as so held by the trial court, and may not use the dry sand beach beyond that horizontal three-foot strip of sand.

III.

The law we are asked to interpret in this case—the public trust doctrine—derives from the English common law principle that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use. Borough of Neptune City v.

*52Borough of Avon-by-the-Sea, 61 N.J. 296, 303, 294 A.2d 47 (1972). That common law principle, in turn, has roots

in Roman jurisprudence, which held that "[b]y the law of nature!,] • • • the air, running water, the sea, and consequently the shores of the sea,” were “common to mankind.” ... No one was forbidden access to the sea, and everyone could use the seashore “to dry his nets there, and haul them from the sea____" The seashore was not private property, but “subject to the same law as the sea itself, and the sand or ground beneath it.”

[Matthews, supra, 95 N.J. at 316-17, 471 A.2d 355 (citations and footnote omitted).]

In Arnold v. Mundy, 6 N.J.L. 1, 53 (E. & A. 1821), the first case to affirm and reformulate the public trust doctrine in New Jersey, the Court explained that upon the Colonies’ victory in the Revolutionary War, the English sovereign’s rights to the tidal waters “became vested in the people of New Jersey as the sovereign of the country, and are now in their hands.” Arnold, supra, addressed the plaintiffs claim to an oyster bed in the Raritan River adjacent to his farm in Perth Amboy. Id. at 45. Chief Justice Kirkpatrick found that the land on which water ebbs and flows, including the land between the high and low water, belongs not to the owners of the lands adjacent to the water, but to the State, “to be held, protected, and regulated for the common use and benefit.” Id. at 49, 71.

Early understanding of the scope of the public trust doctrine focused on the preservation of the “natural water resources” of New Jersey “for navigation and commerce ... and fishing, an important source of food.” Neptune City, supra, 61 N.J. at 304, 294 A.2d 47. In Neptune City, supra, the Court extended public rights in tidal lands “to recreational uses, including bathing, swimming and other shore activities.” Id. at 309, 294 A.2d 47. We invalidated a municipal ordinance that required non-residents of Avon-by-the-Sea to pay a higher fee than the residents of Avon were required to pay to access and use the town’s beaches. Id. at 310, 294 A.2d 47. The Court held:

[A]t least where the upland sand area is owned by a municipality ... and dedicated to public beach purposes, a modem court must take the view that the public trust doctrine dictates that the beach and the ocean waters must be open to all on equal terms and without preference and that any contrary state or municipal action is impermissible.

*53[Id. at 308-09, 294 A.2d 47.]

Later, in Matthews, supra, we considered “the extent of the public’s interest in privately-owned dry sand beaches,” which, we noted, “may [include both] a right to cross [such] privately owned ... beaches in order to gain access to the foreshore ... [and a] right to sunbathe and generally enjoy recreational activities” on the dry sands. 95 N.J. at 322-23, 471 A.2d 355. We observed that New Jersey’s beaches constitute a “unique” and “irreplaceable” resource, subject to increased pressure from population growth throughout the region and improved transportation to the shore. Id. at 323, 471 A.2d 355. Concerned about the great demand and the limited number of beaches open to the public, we repeated:

Exercise of the public’s right to swim and bathe below the mean high water mark may depend upon a right to pass across the upland beach. Without some means of access the public right to use the foreshore would be meaningless. To say that the public trust doctrine entitles the public to swim in the ocean and to use the foreshore in connection therewith without assuring the public of a feasible access route would seriously impinge on, if not effectively eliminate, the rights of the public trust doctrine.

[Id. at 323-24, 471 A.2d 355.]

Matthews clearly articulates the concept already implicit in our case law that reasonable access to the sea is integral to the public trust doctrine. Indeed, as Matthews, supra, points out, without access the doctrine has no meaning. Id. at 323, 471 A.2d 355.

That leaves the question raised in this case: whether use of the dry sand ancillary to use of the ocean for recreation purposes is also implicit in the rights that belong to the public under the doctrine. Matthews, supra, states unequivocally that a “bather’s right in the upland sands is not limited to passage ... [and that] [Reasonable enjoyment of the foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also allowed.” Id. at 325, 471 A.2d 355. Because the activity of swimming “must be accompanied by intermittent periods of rest and relaxation beyond the water’s edge,” the lack of an area available to the public for that purpose “would seriously curtail and in many situations eliminate the right to the recreational use *54of the ocean.” Ibid. Although the Matthews Court did not compare that use of the dry sand to use associated with ancient fishing rights, it did point out that under Roman law, “everyone could use the seashore ‘to dry his nets there, and haul them from the sea ____Id. at 317, 471 A.2d 355 (quoting Justinian Institutes 2.1.1) (T. Sandars trans. 1st Am. ed. 1876) (footnote omitted). It follows, then, that use of the dry sand has long been a correlate to use of the ocean and is a component part of the rights associated with the public trust doctrine.

The factual context in which Matthews was decided was critical to the Court’s holding. Neptune City, supra, had held that the general public must be allowed to use a municipally-owned dry sand beach on equal terms with residents of the municipality. 61 N.J. at 310, 294 A.2d 47; see Van Ness v. Borough of Deal, 78 N.J. 174, 179-80, 393 A.2d 571 (1978) (holding that a municipality could not limit public use of municipal beach to fifty-foot strip along high water line when Deal residents and property owners were permitted to use entire beach area). Matthews, supra, involved a private non-profit entity, the Bay Head Improvement Association (Improvement Association), that owned/Leased and operated certain upland sand areas in the Borough of Bay Head for the recreational use of Bay Head residents only. 95 N.J. at 314-15, 471 A.2d 355. The Improvement Association was closely connected with the municipality, which provided at various points in time, office space, liability insurance, and funding, among other things. Id. at 330, 471 A.2d 355. That symbiotic relationship, as well as the public nature of the activities conducted by the Improvement Association, led the Court to conclude that the Improvement Association was in reality a “quasi-public bod/’ bound by the Neptune City holding. Id. at 328, 329,471 A.2d 355.

Although decided on narrow grounds, Matthews established the framework for application of the public trust doctrine to privately-owned upland sand beaches. The Matthews approach begins with the general principle that public use of the upland sands is “subject to an accommodation of the interests of the owner,” and *55proceeds by setting forth criteria for a case-by-case consideration in respect of the appropriate level of accommodation. Id. at 325-26, 471 A.2d 355. The Court’s formulation bears repeating here:

Archaic judicial responses are not an answer to a modern social problem. Rather, we perceive the public trust doctrine not to be “fixed or static,” but one to “be molded and extended to meet changing conditions and needs of the public it was created to benefit.”____

Precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine will depend on the circumstances. Location of the dry sand area in relation to the foreshore, extent and availability of publicly-owned upland sand area, nature and extent of the public demand, and usage of the upland sand land by the owner are all factors to be weighed and considered in fixing the contours of the usage of the upper sand.

Today, recognizing the increasing demand for our State’s beaches and the dynamic nature of the public trust doctrine, we find that the public must be given both access to and use of privately-owned dry sand areas as reasonably necessary. While the public’s rights in private beaches are not coextensive with the rights enjoyed in municipal beaches, private landowners may not in all instances prevent the public from exercising its rights under the public trust doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable area for recreation on the dry sand.

[7d at 326, 471 A.2d 355 (citations omitted).]

IV.

We turn now to an application of the Matthews factors to the circumstances of this case in order to determine “what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine.” Ibid.

“Location of the dry sand area in relation to the foreshore”:

The dry sand beach at the center of this controversy extends horizontally 480 feet from the Coast Guard property south of Atlantis to the Seapointe property north of Atlantis, and vertically, from three feet landward of the mean high water line about 339 feet to the dunes adjacent to the bulkhead and the Raleigh Avenue extension. It is easily reached by pedestrians using the path bisecting the Raleigh Avenue extension from the end of the paved roadway to the bulkhead.

*56 “[EJxtent and availability of publicly-owned upland sand area”:

There is no publicly-owned beach area in Lower Township, although it was represented to us at oral argument that there are public beaches in the ‘Wildwoods” north of Lower Township. The Borough of Wildwood Crest, immediately north of Lower Township, owns dry sand beach that is used by the public. Seapointe, a private entity, as required by its 1987 CAFRA permit, has made its upland sands available to the public for a “reasonable” fee, approved by the DEP at a level comparable to fees charged by nearby town beaches (in 1987, Cape May City, Avalon, and Stone Harbor beaches). The Coast Guard beach to the south of Atlantis is closed to the public for the better part of the summer season (April 1 through August 15) to protect the endangered piping plover.

“[NJature and extent of the public demand”:

The Diamond Beach section of Lower Township is not large (three blocks by nine blocks), and parking is limited but available along the area streets. Local residents whose homes are within easy walking distance of Atlantis are members of the plaintiff Association, through which they have expressed their individual concerns about access and use. That there is enormous public interest in the New Jersey shore is well-known; tourism associated with New Jersey’s beaches is a $16 billion annual industry.

“[UJsage of the upland sand land by the owner”:

The more or less rectangular area of dry sand that constitutes the Atlantis beach has been closed to non-members of Atlantis from the summer of 1996 to May 4, 2004. On May 4, the Appellate Division required open access and use by the public to the entirety of the beach area and permitted reasonable and comparable fees to be approved by the DEP on application by Atlantis. As for the period prior to 1996, the general public used the beach without limitation or fee during the ten years between 1986 and 1996 and, it appears, enjoyed the same open access and use prior to 1986 (although the record is sparse on the issue of prior use). The La Vida condominiums, situated directly to the *57west of Atlantis, were constructed in 1986. By the La Vida CAFRA permit, the developer/owner accepted as binding a condition on development making the homeowner’s association responsible for public access “to the beach,” with adequate signage, for the life of the condominium project. The permit describes the relationship between the La Vida site and the beach as follows:

The site is adjacent, and provides access points for residents and the public to the ocean beach, which is about 220’ in width at the site.[9] The proposed development will have minimal impact on the beach, but as required under the policy on Dunes (7:7E-3.21), the remaining dunes must be reconstructed, replanted, and maintained. Provided an acceptable plan is submitted and implemented for dune enhancement and management, and provided walkovers to the beach are provided as discussed under the policies on Dunes (3.21) and Public Access to the Waterfront (8.11), and as required by conditions of this permit, this policy is met. [Emphasis added.]

Although the permit language is not without ambiguity, and the record is not clear in respect of the relationship between the developer/owner of La Vida and the owner of Atlantis, see supra at 43 n. 1, 879 A.2d at 114 n. 1, it may be inferred from this section of the permit that open access and use was ceded to the public by La Vida. Most telling, the permit describes access to a 220-foot strip of upland sand beach, not the foreshore. It is difficult to imagine that the DEP (or La Vida) anticipated anything other than public use of that area. That argument has not been made by any party, however; we, therefore, will not here consider the permit dispositive on the issue of public use. Suffice it to say that *58the Atlantis beach was used by the public for many years and that public access and, arguably, public use of 220 feet of ocean beach had been required as a condition of a CAFRA development permit.10

From the summer of 1996 to May 4, 2004, Atlantis charged unregulated membership fees in varying amounts for access to and use of its beach. During the 2003 season, new members (and members who joined in 2002) paid $700 and received eight beach tags per household. In violation of the La Vida CAFRA permit, in the summer of 2003 Atlantis removed the public beach access sign at the western end of the Raleigh Avenue pathway extension and replaced it with a sign that read “FREE ACCESS TO GATE ONLY.” The gate was located at the end of the pathway at the bulkhead. Later that summer, contradictory signs at the gate read “PUBLIC BEACH ACCESS” and “PUBLIC ACCESS ENDS HERE/MEMBERSHIP AVAILABLE AT GATE.” The La Vida permit, however, required

a landscaped public access pathway from the project site entrance down the center of Raleigh Avenue, and, according to the EIS and original site plan, a timber walkway over the bulkhead to the beach.

The permit stated:

Although this accessway is minimal, it is considered adequate due to the small scale of this project. Public parking has not been lost at this site ... and on-street parking is available to the public on surrounding roads. The proposed pathway and walkover will provide reasonable access to the beach, provided public access signs (available from the [DEP]) are conspicuously located at the end of Raleigh Avenue pavement. Therefore, as a condition of this permit, within 30 days of issuance, submit for review and approval a site plan specifically showing the proposed location and detail of the public walkover structure, and the proposed location of public access signage (a 1’ x 2’ metal sign available from the [DEP] on a *59standard metal signpost supplied by applicant), and construct the accessway improvements in accordance with the approved plan prior to occupancy of the structure. Maintenance and/or reconstruction of this walkway shall be the responsibility of the Homeowner’s Association for the life of this project.

On the one hand, guards hired by Atlantis have asked nonmembers to leave the beach, and violators have been prosecuted by Atlantis in municipal court. On the other hand, the DEP has issued notices of violation both to La Vida and to Atlantis because of the signage infractions, because a section of the dunes was destroyed by the Beach Club, and because structures were erected on the beach without CAFRA approval.

The private beach property held by Atlantis is an area of undeveloped upland sand and dunes at the end of a street in a town that does not have public beaches. The owner, after years of public access and use, and despite a condition in the La Vida permit providing for access and, arguably use, decided in 1996 to engage in a commercial enterprise—a private beach club—that kept the public from the beach. Atlantis recognizes that as a “place of public accommodation,” N.J.S.A. 10:5-51, under the Law Against Discrimination, N.J.S.A 10:5-1 to -42, it must provide membership opportunities to the general public without regard to race, creed, or color, Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 83-35, 219 A.2d 161 (1966). See N.J.A.C. 7:7E-8:ll(b)(5) (requiring “establishments ... [that] control access to tidal waters [to] comply with the Law Against Discrimination”). The Beach Club nonetheless asserts that it will lose one of the “sticks” in its bundle of property rights if it cannot charge whatever the market will bear, and, in setting fees for membership, decide who can come onto its property and use its beach and other services (lifeguards, trash removal, organized activities, etc.). But exclusivity of use, in the context here, has long been subject to the strictures of the public trust doctrine.

In sum, based on the circumstances in this case and on application of the Matthews factors, we hold that the Atlantis upland sands must be available for use by the general public under the public trust doctrine. In so holding we highlight the longstanding *60public access to and use of the beach, the La Vida CAFRA permit condition, the documented public demand, the lack of publicly-owned beaches in Lower Township, and the type of use by the current owner as a business enterprise. We also adopt the construct put forward by the Appellate Division in connection with an appropriate fee structure for use of the beach by the public. That issue, however, requires further discussion.

V.

As noted by the Appellate Division, Atlantis is willing to “extend[], without fee, its lifeguard services to members of the public who use the ocean but do not remain on its property.” Raleigh Ave., supra, 370 N.J.Super. at 189, 851 A.2d 19. Although Atlantis claims that the DEP lacks jurisdiction to approve any fees charged by the Beach Club for its other services, the panel rejected that claim:

CAFRA was enacted by the Legislature in 1973. In re Egg Harbor Assocs., 94 N.J. 358, 362 [464 A.2d 1115] (1983). Although CAFRA is primarily an environmental protection statute, “the powers delegated to DEP extend well beyond protection of the natural environment.” Id. at 364 [464 A.2d 1115]. Specifically, CAFRA delegates powers to the DEP and requires it to adopt rules and regulations governing land use within the coastal zone “for the general welfare.” Ibid. The [Legislature amended CAFRA in 1993, significantly expanding its jurisdiction. In re Protest of Coastal Permit Program Rules, 354 N.J.Super. 293, 310 [807 A.2d 198] (App.Div.2002).

[Id. at 190, 851 A.2d 19.]

More specifically, CAFRA regulates activities in the coastal zone by requiring developers/property owners to obtain a permit from the DEP before undertaking “the construction, relocation, or enlargement of any building or structure and all site preparation therefore, the grading, excavation or filling on beaches or dunes, ... including] residential development, commercial development, industrial development, and public development.” N.J.S.A. 13:19-3; see Protest of Coastal Permit Program Rules, supra, 354 N.J.Super. at 310, 807 A.2d 198 (citing N.J.S.A 13:19-5, 19-5.2, 19-5.3).

*61The DEP exercises its statutory authority under CAFRA through the Coastal Permit Program Rules, N.J.A.C. 7:7-l.l to - 10.6, and the Coastal Zone Management Rules, N.J.A.C. 7:7E-1.1 to -8.22; see Protest of Coastal Permit Program Rules, supra, 354 N.J.Super. at 312, 807 A.2d 198. The Coastal Permit Program Rules directly address permitting requirements for “[a]ny development located on a beach or dune.” N.J.AC. 7:7-2.1(a)(1). Such development, which consists of dune walk-over and boardwalk structures, is regulated by N.J.A.C. 7:7E-3A.l to -3A.5; see N.J.AC. 7:7E-3A.5 (providing standards for construction of boardwalks) and N.J.A.C. 7:7E-3A.4 (providing standards for dune creation and maintenance). Pertinent to this case, “[d]une creation and maintenance includes the ... maintenance and clearing of beach access pathways less than eight feet in width, and the construction or repair of approved dune walkover structures.” N.J.AC. 7:7E-3A.4(a).

We agree with the Appellate Division that the boardwalk pathway over the dunes to the Atlantis beach qualifies as a development, thereby triggering the DEP’s CAFRA jurisdiction over related use of the beach and ocean. See Raleigh Ave., supra, 370 N.J.Super. at 191, 851 A.2d 19. We find jurisdiction also in the DEP’s general “power to promote the health, safety, and welfare of the public.” In re Egg Harbor Assocs., supra, 94 N.J. at 372, 464 A.2d 1115. We hold that the broad scope of the DEP’s authority includes jurisdiction to review fees proposed by Atlantis for use of its beach. We expect that the DEP will use N.J.AC. 7:7E-8.11(b)4, which limits fees at publicly-owned beaches to an amount “required to operate and maintain the facility” as a guide, and that fees will not be approved if they operate to “[ljimit access by placing an unreasonable economic burden on the public.” Raleigh Ave., supra, 370 N.J.Super. at 193, 851 A.2d 19. Finally, we approve the approach taken by the Appellate Division wherein the panel recognized that Atlantis, as a private entity, should be allowed to include expenses actually incurred for reasonable management services (in addition to reimbursement for other costs) in *62the fee calculation. Ibid. We add only that DEP-approved fees are unrelated to the independent and inherent right of Atlantis to provide cabanas for rent,11 at a rate determined by the Beach Club and after obtaining a permit to construct or place such buildings on its property, or to engage in other similar business enterprises for profit, e.g., beach chair rentals, food concessions, etc.

VI.

For the reasons expressed in this opinion, the decision of the Appellate Division is affirmed.

Justice WALLACE, JR.,

dissenting.

I would reverse and reinstate the judgment of the trial court granting access to the ocean and an easement across the private sand area owned by the Atlantic Beach Club to access the beach at Seapointe. However, because a three-foot-wide strip would not easily allow for an adult and child to walk within that limited area, I would expand the horizontal access across defendant’s property to a ten-foot-wide strip above the high water mark.

I.

As the majority opinion makes clear, this Court has not previously defined the rights that the public has to privately-owned beaches. Because “it has been long established that the individual States have the authority to define the limits of the lands held in public trust and to recognize private rights in such lands as they see fit[,]” Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475, 108 S.Ct. 791, 794-95, 98 L.Ed.2d 877 (1988), the lands subject to the public trust doctrine are to be determined by each State.

*63New Jersey was the first state to recognize and apply the public trust doctrine:

The public trust doctrine is the legal principle that the submerged lands and waters below mean highwater mark are owned by the state government in trust for public uses such as transportation and fishing. In 1821 the New Jersey Supreme Court was the first in the United States to verify its application in the New World, in Arnold v. Mundy [, 6 N.J.L. 1 (1821)]; in 1842 the U.S. Supreme Court reaffirmed that court’s ruling in Martin v. Waddell[’s Lessee, 41 U.S. 367, 16 Pet. 367, 10 L.Ed. 997 (1842) ]. Both came about because of conflicts over rights to oyster grounds in the Raritan River and Bay____The outcome was recognition of the state’s ownership as trustee for the people of the state. Subsequently, the doctrine has played important roles in waterfront development, uses and management of ... wetlands, and public access to riverfronts and beaches.

[Encyclopedia of New Jersey 665-66 (Maxine N. Lurie & Marc Mappen eds., 2004).]

We have interpreted the public trust doctrine to require broad public access to those lands that are held in public trust. Borough of Neptune City v. Borough of Avon-by-the-Sea, 61 N.J. 296, 308-09, 294 A.2d 47 (1972) (noting that public trust doctrine dictates that when municipality owns upland sand, beach and ocean must be available on equal terms to entire public); Van Ness v. Borough of Deal, 78 N.J. 174, 179-80, 393 A.2d 571 (1978) (noting that public trust doctrine requires that public have use and enjoyment of beaches owned by municipality). In Neptune City, supra, we recognized that “[t]he public trust doctrine ... should be molded and extended to meet changing conditions and needs of the public it was created to benefit.” 61 N.J. at 309, 294 A.2d 47.

A.

We addressed for the first time the extent of the public’s interest in privately-owned dry sand beaches in Matthews v. Bay Head Improvement Ass’n, 95 N.J. 306, 471 A.2d 355, cert. denied, 469 U.S. 821, 105 S.Ct. 93, 83 L.Ed.2d 39 (1984). The key issue in that case was whether the public has the right of access to tidal lands through privately-owned dry sands. Id. at 312, 471 A.2d 355. The municipality did not own any of the dry land. Ibid. Because the Bay Head Improvement Association (Improvement Association) either owned or leased the beachfront parcels so that *64its members had access to Bay Head’s one-and-one-quarter mile beachfront, the public could not access the ocean through the dry sand. Id. at 314-15, 471 A.2d 355. The plaintiffs filed suit seeking the right of access to the beaches in Bay Head as public trust lands, and the right to use private property fronting on the ocean incidental to the public’s right under the public trust doctrine. Id. at 312-13, 471 A.2d 355. The trial court granted summary judgment in favor of the defendant and dismissed the complaint. Id. at 313, 471 A. 2d 355. The Appellate Division affirmed with one judge dissenting. The plaintiff appealed as of right, Rule 2:2-l(a), and we granted the plaintiffs petition for certification. Ibid.

Initially, we reviewed the development of the public trust doctrine. In describing the public’s right of entry to the water, we explained that “[t]he test is whether those means are reasonably satisfactory so that the public’s right to use the beachfront can be satisfied.” Id. at 325, 471 A.2d 355. We found that the public cannot reasonably enjoy the ocean unless there is also available the use of the dry sand to rest and relax. Ibid. We concluded that “where use of dry sand is essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s use of the upland dry sand area subject to an accommodation of the interests of the owner.” Ibid, (footnote omitted). We emphasized that each particular circumstance will determine “[precisely what privately-owned upland sand area will be available and required to satisfy the public’s rights under the public trust doctrine[J” Id. at 326, 471 A. 2d 355. In striking a fair balance between the rights of the public and the interests of the private owner, we listed the following factors that should be considered: (1) the location of the dry sand in relation to the foreshore; (2) the extent and availability of publicly-owned beaches; (3) the nature and extent of the public demand; and (4) the owner’s usage of the dry sand area. Ibid.

In applying those factors, we first noted that the Improvement Association was a quasi-public organization whose activities “paral*65leled those of a municipality.” Id. at 330, 471 A.2d 355. Next, we found that there was no publicly-owned beach and that the Improvement Association’s limited membership to the residents prevented the public from enjoying the beach and ocean. Id. at 331, 471 A.2d 355. Consequently, we concluded that the record demonstrated “that a right of access to the beach ... as well as the right to use the Association’s upland dry sand[]” area was required. Id. at 333, 471 A.2d 355.

Thus, in Matthews, the entirety of the beach was privately-owned, but by a quasi-public organization. Even though we held that those circumstances dictated that the public have reasonable access to the ocean and the use of privately-owned dry sand beach, we recognized that each case must be decided “upon the specific facts in controversy.” Ibid.

B.

This case requires us to apply the Matthews test in evaluating the competing interests of the public to reasonable access and use of the ocean and dry beach against the interests of the private landowner to use and enjoy its land. The first factor of the Matthews test, the location of the dry sand area in relation to the foreshore, weighs in favor of plaintiff. The dry sand area of the Beach Club is directly adjacent to the wet sand and ocean and there are no barriers or structures creating any division between the two areas. Further, there is no direct access to the water except over the Beach Club property. In fact, defendant concedes that access to the ocean may be over its privately-owned property, and that the public has the right to use its property “at and below the mean high water line.”

The second factor, the extent and availability of publicly-owned upland sand area, weighs in favor of defendant. The evidence shows that Seapointe is adjacent to the Beach Club and that Seapointe allows the public access and use of its beach. Thus, there is a beach in close proximity to the Beach Club that will *66permit the public to enjoy the beach without interfering with the rights of a private beach owner.

The third factor, the nature and extent of public demand, weighs in favor of plaintiff, at least with regard to access. There are a large number of multi-story condominium buildings in the Diamond Beach neighborhood adjacent to the Beach Club property that were constructed on land sold to the developers by one of defendant’s principals. The numerous residents of those buildings seek to use the ocean. Thus, there is a public demand for reasonable access across the Beach Club’s private property.

The final factor is the usage of the upland sand by the owner. Defendant uses its beach as a private-for-profit beach club, and offers two types of memberships, an annual membership and a lifetime easement. In 2003, the annual membership fee was $700 and the lifetime easement fee was $10,000. Defendant provides its members with security, beach maintenance, lifeguards, and some recreational activities. The only improvement on the land is the boardwalk. Therefore, I find that this factor weighs in favor of defendant.

The majority opinion discusses the La Vida CAFRA permit and concludes from its language that “it may be inferred from this section of the permit that open access and use was ceded to the public by La Vida.” Ante at 58, 879 A.2d at 123. It recognizes, however, that none of the parties make this argument and concludes that “we, therefore, will not here consider the permit dispositive on the issue of public use.” Ibid. The majority also notes that the DEP has noticed La Vida and the Beach Club for signage infractions, dune destruction, and improper erection of structures on the beach. Id. at 58, 879 A.2d at 123. Tellingly, the DEP has not issued a notice of violation to the Beach Club for failure to allow the public to use its beach. Irrespective of that, the majority, in part, relies on the La Vida CAFRA permit conditions to conclude that the public trust doctrine should be expanded to make the upland sands of the Beach Club available to the general public. The Court, however, should not consider the *67La Vida CAFRA permit because of its ambiguous language. Unlike the La Vida permit, the 1987 CAFRA permit for the adjacent Seapointe property development made clear that the beach in front of Seapointe was required to be open to the public. Most importantly, because the parties did not brief this issue, I do not consider the conditions of the La Vida CAFRA permit in my discussion.

In balancing the above factors, it is obvious that the greater weight favors access to the ocean and the use of the water below the mean high water mark. Defendant recognizes and concedes that plaintiff has a right of access over its land and the use of the ocean. However, because there is an adjacent beach to defendant’s private property that is available to the public, I find no need to apply the public trust doctrine beyond access to the ocean and access to a reasonable area across defendant’s property to the adjacent Seapointe. In my view, that strikes a proper balance between the public trust doctrine, which requires reasonable access and use of the ocean and beaches, and a private owner’s right to use its private property as it deems fit. The record here amply supports the conclusion that access to the water and to Seapointe over defendant’s privately-owned beachfront will reasonably satisfy the public need at this time. I see no justification to exceed that minor intrusion.

II.

I agree with the position of the State before the trial court that the three-foot access across defendant’s land to Seapointe was insufficient and that the public was entitled to unrestricted use of a reasonable area of dry sand, “which [the State] considers to be an area at least 10 feet wide above the mean high water line.” In my view, ten feet is a reasonable area for a family to safely traverse defendant’s property to reach Seapointe without excessively impinging on defendant’s property rights. Moreover, for those members of the public who elect to use the beach and ocean at that location, the ten-foot area will also give them limited use of *68the beach. Under the circumstances of this case, that is the only-reasonable accommodation that we should require to enforce the public trust doctrine.

Justice RIVERA-SOTO joins in this opinion.

For affirmance—Chief Justice PORITZ, Justices LONG, LaVECCHIA, ZAZZALI, and ALBIN—5.

For reversal and reinstatement—Justices WALLACE and RIVERA-SOTO—2.

Mr. Justice Stewart

delivered the opinion of the Court.

A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, 49 Stat. 449, as amended, 61 Stat. 136, 29 U. S. C. § 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. 501 F. 2d 161. We granted certiorari because of the seemingly important questions of federal law presented. 420 U. S. 971.

*509t — H

The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Co. Most of the stores, including Butler’s, can be entered only from the interior mall.

In January 1971, warehouse employees of the Butler Shoe Co. went on strike to protest the company’s failure to agree to demands made by their union in contract negotiations.1 The strikers decided to picket not only Butler’s warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 1971, four of the striking warehouse employees entered the center’s enclosed mall carrying placards which read: “Butler Shoe Warehouse on Strike, AFL-CIO, Local 315.” The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed.

The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference. with rights protected by § 7 of the Act, 29 *510U. S. C. § 157.2 Relying on this Court’s decision in Food Employees v. Logan Valley Plaza, 391 U. S. 308, the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner’s threat of arrest violated § 8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1).3 Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551, and Central Hardware Co. v. NLRB, 407 U. S. 539, and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions.

The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. *511This result was ostensibly reached under the statutory criteria set forth in NLRB v. Babcock & Wilcox Co., 351 U. S. 105, a case which held that union organizers who seek to solicit for union membership may intrude on an employer’s private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge’s opinion also relied on this Court’s constitutional decision in Logan Valley for a “realistic view of the facts.” The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens’ invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.4

Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & Wilcox, but by Republic Aviation Corp. v. NLRB, 324 U. S. 793, a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board’s cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets’ rights was § 7 of the Act, the Court of Appeals held that the competing constitutional and property .right considerations discussed in Lloyd Corp. v. Tanner, supra, “burde[n] the General Counsel with the duty to *512prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective,” 501 F. 2d, at 169, and that the Board’s General Counsel had met that burden in this case.

In this Court the petitioner Hudgens continues to urge that Babcock & Wilcox Co. is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs, but insists that, since the § 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals’ judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board’s asserted understanding of Lloyd Corp. v. Tanner, supra, and that the judgment of the Court of Appeals should be affirmed on the basis of that standard.

II

As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn.

*513It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U. S. 94. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in Marsh v. Alabama, 326 U. S. 501. In Marsh, a Jehovah’s Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding Corp. It was described in the Court’s opinion as follows:

“Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block’ on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly *514settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” Id,., at 502-503.

The Court pointed out that if the “title” to Chickasaw had “belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant’s conviction must be reversed.” Id., at 504. Concluding that Gulfs “property interests” should not be allowed to lead to a different result in Chickasaw, which did “not function differently from any other town,” id., at 506-508, the Court invoked the First and Fourteenth Amendments to reverse the appellant’s conviction.

It was the Marsh case that in 1968 provided the foundation for the Court’s decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308. That case involved peaceful picketing within a large *515shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center’s property in the immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment.

The Court’s opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk:

“It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315.

The Court’s opinion then reviewed the Marsh case in detail, emphasized the similarities between the business *516block in Chickasaw, Ala., and the Logan Valley shopping center, and unambiguously concluded:

“The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh.” 391 U. S., at 318.

Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court.

There were three dissenting opinions in the Logan Valley case, one of them by the author of the Court’s opinion in Marsh, Mr. Justice Black. His disagreement with the Court’s reasoning was total:

“In affirming petitioners’ contentions the majority opinion relies on Marsh v. Alabama, supra, and holds that respondents’ property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. ... I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama. There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a ‘town.’ ” 391 U. S., at 330-331 (footnote omitted).

“The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e., ‘residential buildings, streets, a system of sewers, a sewage disposal plant and a “business block” on which business places are situated.’ 326 U. S., at 502. I *517can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner’s private property and give its use to people who want to picket on it.” Id., at 332. “To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country. . . .” Id., at 332-333.

Four years later the Court had occasion to reconsider the Logan Valley doctrine in Lloyd Corp. v. Tanner, 407 U. S. 551. That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, “to avoid arrest.” Id., at 556. They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled’ in their favor, holding that the distribution of handbills on the shopping center’s property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, 446 F. 2d 545, expressly relying on this Court’s Marsh and Logan Valley decisions. This Court reversed the judgment of the Court of Appeals.

The Court in its Lloyd opinion did not say that it was overruling the Logan Valley decision. Indeed, a substantial portion of the Court’s opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan Valley had been *518specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. 407 U. S., at 561-567.5 But the fact is that the reasoning of the Court’s opinion in Lloyd cannot be squared with the reasoning of the Court’s opinion in Logan Valley.

It matters not that some Members of the Court may continue to believe that the Logan Valley case was rightly decided.6 Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case.7 Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley, 407 U. S., at 562-563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley:

“The basic issue in this case is whether respondents, in the exercise of asserted First Amendment *519rights, may distribute handbills on Lloyd’s private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only....” 407 U. S., at 567.

“Respondents contend . . . that the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town.

“The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semiofficial municipal functions as a delegate of the State. In effect, thé owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power.” Id., at 568-569 (footnote omitted).

*520“We hold that there has been no such dedication of Lloyd’s privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. . . Id., at 570.

If a large self-contained shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content.8 For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for First Amendment purposes, see Cox v. New Hampshire, 312 U. S. 569; Poulos v. New Hampshire, 345 U. S. 395, and may even forbid altogether such use of some of its facilities, see Adderley v. Florida, 385 U. S. 39; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, Erznoznik v. City of Jacksonville, 422 U. S. 205. “[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95.9 It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment *521right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co.

We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.

Ill

From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between § 7 rights and private property rights, “and to seek a proper accommodation between the two.” Central Hardware Co. v. NLRB, 407 U. S., at 543. What is “a proper accommodation” in any situation may largely depend upon the content and the context of the § 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires “above all else” that expression must not be restricted by government “because of its message, its ideas, its subject matter, or its content.”

In the Central Hardware case, and earlier in the case of NLRB v. Babcock & Wilcox Co., 351 U. S. 105, the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees’ § 7 rights and employers’ property rights, the Court said in Babcock & Wilcox, “must be obtained with as little destruction of one as is consistent with the maintenance of the other.” 351 U. S., at 112.

Both Central Hardware and Babcock & Wilcox involved organizational activity carried on by nonemploy-ees on the employers’ property.10 The context of the § 7 *522activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steelworkers v. NLRB, 376 U. S. 492, 499; Bus Employees v. Missouri, 374 U. S. 74, 82; NLRB v. Erie Resistor Corp., 373 U. S. 221, 234. Cf. Houston Insulation Contractors Assn. v. NLRB, 386 U. S. 664, 668-669. Second, the § 7 activity here was carried on by Butler’s employees (albeit not employees of its shopping center store), not by outsiders. See NLRB v. Babcock & Wilcox Co., supra, at 111-113. Third, the property interests impinged upon in this case were not those of the employer against whom the § 7 activity was directed, but of another.11

The Babcock & Wilcox opinion established the basic objective under the Act: accommodation of § 7 rights and private property rights “with as little destruction of one as is consistent with the maintenance of the other/’12 The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See NLRB v. Babcock & Wilcox, supra, at 112; cf. NLRB v. Erie Resistor Corp., supra, at 235-*523236; NLRB v. Truckdrivers Union, 353 U. S. 87, 97. “The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.” NLRB v. Weingarten, Inc., 420 U. S. 251, 266.

For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone.

It is so ordered.

Mr. Justice Stevens took no part in the consideration or decision of this case.

Mr. Justice Powell,

with whom The Chief Justice joins, concurring.

Although I agree with Mr. Justice White’s view concurring in the result that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), did not overrule Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), and that the present case can be distinguished narrowly from Logan Valley, I nevertheless have joined the opinion of the Court today.

The law in this area, particularly with respect to whether First Amendment or labor law principles are applicable, has been less than clear since Logan Valley analogized a shopping center to the “company town” in Marsh v. Alabama, 326 U. S. 501 (1946). Mr. Justice Black, the author of the Court’s opinion in Marsh, thought the decisions were irreconcilable.1 I now agree *524with Mr. Justice Black that the opinions in these cases cannot be harmonized in a principled way. Upon more mature thought, I have concluded that we would have been wiser in Lloyd Corp. to have confronted this disharmony rather than draw distinctions based upon rather attenuated factual differences.2

The Court’s opinion today clarifies the confusion engendered by these cases by accepting Mr. Justice Black’s reading of Marsh and by recognizing more sharply the distinction between the First Amendment and labor law issues that may arise in cases of this kind. It seems to me that this clarification of the law is desirable.

Mr. Justice White,

concurring in the result.

While I concur in the result reached by the Court, I find it unnecessary to inter Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), and therefore do not join the Court’s opinion. I agree that “the constitutional guarantee of free expression has no part to play in a case such as this,” ante, at 521; but Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), did not overrule Logan Valley, either expressly or implicitly, and I would not, somewhat after the fact, say that it did.

One need go no further than Logan Valley itself, for the First Amendment protection established by Logan Valley was expressly limited to the picketing of a specific store for the purpose of conveying information with respect to the operation in the shopping center of that store:

“The picketing carried on by petitioners was *525directed specifically at patrons of the Weis Market located within the shopping center and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.” 391 U. S., at 320 n. 9.

On its face, Logan Valley does not cover the facts of this case. The pickets of the Butler Shoe Co. store in the North DeKalb Shopping Center were not purporting to convey information about the “manner in which that particular [store] was being operated” but rather about the operation of a warehouse not located on the center’s premises. The picketing was thus not “directly related in its purpose to the use to which the shopping center property was being put.”

The First Amendment question in this case was left open in Logan Valley. I dissented in Logan Valley, 391 U. S., p. 337, and I see no reason to extend it further. Without such extension, the First Amendment provides no protection for the picketing here in issue and the Court need say no more. Lloyd v. Tanner is wholly consistent with this view. There is no need belatedly to overrule Logan Valley, only to follow it as it is.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today holds that the First Amendment poses no bar to a shopping center owner’s prohibiting speech within his shopping center. After deciding this far-reaching constitutional question, and overruling Food *526Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), in the process, the Court proceeds to remand for consideration of the statutory question whether the shopping center owner in this case unlawfully interfered with the Butler Shoe Co. employees’ rights under § 7 of the National Labor Relations Act, 29 U. S. C. § 157.

In explaining why it addresses any constitutional issue at all, the Court observes simply that the history of the litigation has been one of “shifting positions on the part of the litigants, the Board, and the Court of Appeals,” ante, at 512, as to whether relief was being sought, or granted, under the First Amendment, under § 7 of the Act, or under some combination of the two. On my reading, the Court of Appeals’ decision and, even more clearly, the Board’s decision here for review, were based solely on § 7, not on the First Amendment; and this Court ought initially consider the statutory question without reference to the First Amendment — the question on which the Court remands. But even under the Court’s reading of the opinions of the Board and the Court of Appeals, the statutory question on which it remands is now before the Court. By bypassing that question and reaching out to overrule a constitutionally based decision, the Court surely departs from traditional modes of adjudication.

I would affirm the judgment of the Court of Appeals on purely statutory grounds. And on the merits of the only question that the Court decides, I dissent from the overruling of Logan Valley.

I

The Court views the history of this litigation as one of “shifting positions” and “considerable confusion.” To be sure, the Board’s position has not been constant. But the ultimate decisions by the Administrative Law Judge *527and by the Board rested solely on § 7 of the NLRA, not on the First Amendment.

As the Court indicates, the Board’s initial determination that petitioner violated §8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1), was based on its reading of Logan Valley, a First Amendment case. But before the Court of Appeals reviewed this initial determination, this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), and Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), and the Board moved to have the case remanded for reconsideration in light of these two decisions. The Court of Appeals granted the motion.

Lloyd and Central Hardware demonstrated, each in its own way, that Logan Valley could not be read as broadly as some Courts of Appeals had read it. And together they gave a signal to the Board and to the Court of Appeals that it would be wise to pass upon statutory contentions in cases of this sort before turning to broad constitutional questions, the answers to which could no longer be predicted with certainty. See Central Hardware, supra, at 548, 549 (Maeshall, J., dissenting); Lloyd, supra, at 584 (Marshall, J., dissenting). Taking heed of this signal, the Administrative Law Judge and the Board proceeded on remand to assess the conflicting rights of the employees and the shopping center owner within the framework of the NLRA. The Administrative Law Judge’s recommendation that petitioner be found guilty of a § 8 (a)(1) violation rested explicitly on the statutory test enunciated by this Court in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). That the Administrative Law Judge supported his “realistic view of the facts” by referring to this Court’s “factual view” of the Logan Valley case surely cannot be said to alter the judge’s explicitly stated legal theory, which was a statutory one.

*528Even more clearly, the Board’s rationale in agreeing with the Administrative Law Judge’s recommendation was exclusively a statutory one. Nowhere in the Board’s decision, Hudgens v. Local SIS, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628 (1973), is there any reference to the First Amendment or any' constitutionally based decision. The Board reached its result “for the reasons specifically set forth in Frank Vis-ceglia and Vincent Visceglia, t/a Peddie Buildings,”1 ibid., a case decided solely on § 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the applicability of Logan Valley’s First Amendment analysis, finding an interference with § 7 rights under a “modified” Babcock & Wilcox test.2 When the Board in this case relied upon the rationale of Visceglia, it was evidently proceeding under the assumption that the First Amendment had no application. Its ultimate conclusion that petitioner violated §8 (a)(1) of the Act was purely the result of an “accommodation between [his] property rights and the employees’ Section 7 rights.” 205 N. L. R. B. 628.

The Court acknowledges that the Court of Appeals’ enforcement of the Board’s order was based on its view of the employees’ § 7 rights. But the Court suggests that the following reference to Lloyd, a constitutional *529case, indicates that the Court of Appeals’ decision was infected with constitutional considerations:

“Lloyd burdens the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective.” 501 F. 2d 161, 169.

A reading of the entire Court of Appeals’ opinion, however, demonstrates that this language was not intended to inject any constitutional considerations into the case. The Court of Appeals’ analysis began with an evaluation of the statutory criteria urged by the parties.3 Rejecting both parties’ formulations of the appropriate statutory standard, the Court of Appeals adopted a modified version of an approach, suggested by an amicus, that incorporates a consideration of the relationship of the protest to the use to which the private property in question is put, and the availability of reasonably effective alternative means of communicating with the intended audience. While the amicus had derived its approach from Lloyd and Logan Valley, two constitutional cases, the Court of Appeals was careful to note that the approach it applied was a statutory, not a constitutional one:

“Section 7 rights are . not necessarily coextensive *530with constitutional rights, see Central Hardware v. NLRB, supra ([Marshall], J., dissenting). Nevertheless, we agree that the rule suggested by amicus, although having its genesis in the constitutional issues raised in Lloyd, isolates the factors relevant to determining when private property rights of a shopping center owner should be required to yield to the section 7 rights of labor picketers.” 501 F. 2d, at 167.

With that explanation of the Court of Appeals’ view of the relevance of Lloyd, it is evident that the subsequent reference to Lloyd, quoted out of context by the Court, was not intended to alter the purely statutory basis of the Court of Appeals’ decision.4

In short, the Board’s decision was clearly unaffected by constitutional considerations, and I do not read the Court of Appeals’ opinion as intimating that its statutory result was constitutionally mandated. In its present posture, the case presents no constitutional question to the Court. Surely it is of no moment that the Board through its counsel now urges this Court to decide, as part of its statutory analysis, what result is compelled by the First Amendment. The posture of the case is determined by the decisions of the Board and the Court of Appeals, not by the arguments advanced in the Board’s brief. Since I read those decisions as purely statutory ones, I would proceed to consider the purely statutory question whether, assuming that petitioner is not restricted by the First Amendment, his actions never*531theless violated § 7 of the Act. This is precisely the issue on which the Court remands the case.

At the very least it is clear that neither the Board nor the Court of Appeals decided the case solely on First Amendment grounds. The Court itself acknowledges that both decisions were based on § 7. The most that can be said, and all that the Court suggests, is that the Court of Appeals’ view of § 7 was colored by the First Amendment. But even if that were the case, this Court ought not decide any First Amendment question — particularly in a way that requires overruling one of our decisions — without first considering the statutory question without reference to the First Amendment. It is a well-established principle that constitutional questions should not be decided unnecessarily. See, e. g., Hagans v. Lavine, 415 U. S. 528, 543, 549 (1974); Rosenberg v. Fleuti, 374 U. S. 449 (1963); Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). If the Court of Appeals disregarded that principle, that is no excuse for this Court’s doing so.

As already indicated, the Board, through its counsel, urges the Court to apply First Amendment considerations in defining the scope of § 7 of the Act. The Board takes this position because it is concerned that the scope of § 7 not fall short of the scope of the First Amendment, the result of which would be that picketing employees could obtain greater protection by court suits than by invoking the procedures of the NLRA. While that general concern is a legitimate one, it does not justify the constitutional adjudication undertaken by the Court. If it were undisputed that the pickets in this case enjoyed some degree of First Amendment protection against interference by petitioner, it might be difficult to separate a consideration of the scope of that First Amendment protection from an analysis of the scope of *532protection afforded by § 7. But the constitutional question that the Court decides today is whether the First Amendment operates to restrict petitioner’s actions in any way at all, and that question is clearly severable, at least initially, from a consideration of § 7’s scope — as proved by the Court’s remand of the case.

Thus even if, as the Court suggests, the Court of Appeals’ view of § 7 was affected by the First Amendment, the Court still could have proceeded initially to decide the statutory question divorced of constitutional considerations. I cannot understand the Court’s bypassing that purely statutory question to overrule a First Amendment decision less than 10 years old. And I certainly cannot understand the Court’s remand of the purely statutory question to the Board, whose decision was so clearly unaffected by any constitutional considerations that the Court does not even suggest otherwise.

II

On the merits of the purely statutory question that I believe is presented to the Court, I would affirm the judgment of the Court of Appeals. To do so, one need not consider whether consumer picketing by employees is subject to a more permissive test under § 7 than the test articulated in Babcock & Wilcox for organizational activity by nonemployees. In Babcock & Wilcox we stated that an employer “must allow the union to approach his employees on his property” 5 if the employees are “beyond the reach of reasonable efforts to communicate with them,” 351 U. S., at 113 — that is, if “other means” of communication are not “readily available.” Id., at 114. Thus the general standard that emerges *533from Babcock & Wilcox is the ready availability of reasonably effective alternative means of communication with the intended audience.

In Babcock & Wilcox itself, the intended audience was the employees of a particular employer, a limited identifiable group; and it was thought that such an audience could be reached effectively by means other than entrance onto the employer’s property — for example, personal contact at the employees’ living quarters, which were “in reasonable reach.” Id., at 113. In this case, of course, the intended audience was different, and what constitutes reasonably effective alternative means of communication also differs. As the Court of Appeals noted, the intended audience in this case “was only identifiable as part of the citizenry of greater Atlanta until it approached the store, and thus for the picketing to be effective, the location chosen was crucial unless the audience could be known and reached by other means.” 501 F. 2d, at 168. Petitioner contends that the employees could have utilized the newspapers, radio, television, direct mail, handbills, and billboards to reach the citizenry of Atlanta. But none of those means is likely to be as effective as on-location picketing: the initial impact of communication by those means would likely be less dramatic, and the potential for dilution of impact significantly greater. As this Court has observed:

“Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word.” Hughes v. Superior Court, 339 U. S. 460, 465 (1950).

*534In addition, all of the alternatives suggested by petitioner are considerably more expensive than on-site picketing. Certainly Babcock & Wilcox did not require resort to the mass media,6 or to more individualized efforts on a scale comparable to that which would be required to reach the intended audience in this case.

Petitioner also contends that the employees could have picketed on the public rights-of-way, where vehicles entered the shopping center. Quite apart from considerations of safety, that alternative was clearly inadequate: prospective customers would have had to read the picketers’ placards while driving by in their vehicles — a difficult task indeed. Moreover, as both the Board and the Court of Appeals recognized, picketing at an entrance used by customers of all retail establishments in the shopping center, rather than simply customers of the Butler Shoe Co. store, may well have invited undesirable secondary effects.

In short, I believe the Court of Appeals was clearly correct in concluding that “alternatives to picketing inside the mall were either unavailable or inadequate.” 501 F. 2d, at 169. Under Babcock & Wilcox, then, the picketing in this case was protected by § 7. I would affirm the judgment of the Court of Appeals on that basis.

Ill

Turning to the constitutional issue resolved by the Court, I cannot escape the feeling that Logan Valley has been laid to rest without ever having been accorded a proper burial. The Court today announces that “the ultimate holding in Lloyd amounted to a total rejection *535of the holding in Logan Valley.” Ante, at 518. To be sure, some Members of the Court, myself included, believed that Logan Valley called for a different result in Lloyd and alluded in dissent to the possibility that “it is Logan Valley itself that the Court finds bothersome.” 407 U. S., at 570, 584 (Marshall, J., dissenting). But the fact remains that Logan Valley explicitly reserved the question later decided in Lloyd, and Lloyd carefully preserved the holding of Logan Valley. And upon reflection, I am of the view that the two decisions are reconcilable.

A

In Logan Valley the Court was faced with union picketing against a nonunion supermarket located in a large shopping center. Our holding was a limited one:

“All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U. S., at 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 391 U. S., at 319-320 (footnote omitted).

We carefully noted that we were “not called upon to consider whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not . . . directly related in its purpose to the use to which the shopping center property was being put.” Id., at 320 n. 9.

Lloyd involved the distribution of antiwar handbills in a large shopping center, and while some of us viewed *536the case differently, 407 U. S., at 570, 577-579 (Marshall, J., dissenting), the Court treated it as presenting the question left open in Logan Valley. But the Court did no more than decide that question. It preserved the holding of Logan Valley, as limited to cases in which (1) the picketing is directly related in its purpose to the use to which the shopping center property is put, and (2) “no other reasonable opportunities for the pickets to convey their message to their intended audience [are] available.” 407 U. S., at 563.

The Court today gives short shrift to the language in Lloyd preserving Logan Valley, and quotes extensively from language that admittedly differs in emphasis from much of the language of Logan Valley. But even the language quoted by the Court says no more than that the dedication of the Lloyd Center to public use was more limited than the dedication of the company town in Marsh v. Alabama, 326 U. S. 501 (1946), and that the pickets in Lloyd were not entitled to exercise. “the asserted First Amendment rights” — that is, the right to distribute antiwar handbills.

Any doubt about the limited scope of Lloyd is removed completely by a consideration of Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), decided the same day as Lloyd. In Central Hardware the Court was faced with solicitation by nonemployee union organizers on a parking lot of a retail store that was not part of a shopping center complex — activity clearly related to the use to which the private property had been put. The Court found the activity unprotected by the First Amendment, but in a way that explicitly preserved the holding in Logan Valley. The Court could have held that the First Amendment has no application to use-related activity on privately owned business property, thereby rejecting Logan Valley, but instead the Court chose to *537distinguish the parking lot in Central Hardware from the shopping center complex in Logan Valley. Rejecting the argument that the opening of property to the general public suffices to activate the prohibition of the First Amendment, the Court explained:

“This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal ‘business block.' First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets.

“Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . . The only fact relied upon for the argument that Central’s parking lots have acquired the characteristics of a public municipal facility is that they are ‘open to the public.’ Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh.” 407 U. S., at 547 (footnote omitted).

If, as the Court tells us, “the rationale of Logan Valley .did not survive the Court’s decision in the Lloyd case,” ante, at 518, one wonders why the Court in Central Hardware, decided the same day as Lloyd, implicitly reaffirmed Logan Valley’s rationale.

*538B

It is inescapable that after Lloyd, Logan Valley remained “good law,” binding on the state and federal courts. Our institutional duty in this case, if we consider the constitutional question at all, is to examine whether Lloyd and Logan Valley can continue to stand side by side, and, if they cannot, to decide which one must fall. I continue to believe that the First Amendment principles underlying Logan Valley are sound, and were unduly limited in Lloyd. But accepting Lloyd, I am not convinced that Logan Valley must be overruled.

The foundation of Logan Valley consisted of this Court’s decisions recognizing a right of access to streets, sidewalks, parks, and other public places historically associated with the exercise of First Amendment rights. E. g., Hague v. CIO, 307 U. S. 496, 515-516 (1939) (opinion of Roberts, J.); Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296, 308 (1940); Cox v. New Hampshire, 312 U. S. 569, 574 (1941); Jamison v. Texas, 318 U. S. 413 (1943); Saia v. New York, 334 U. S. 558 (1948). Thus, the Court in Logan Valley observed that access to such forums “cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315. The importance of access to such places for speech-related purposes is clear, for they are often the only places for effective speech and assembly.

Marsh v. Alabama, supra, which the Court purports to leave untouched, made clear that in applying those cases granting a right of access to streets, sidewalks, and other public places, courts ought not let the formalities of title put an end to analysis. The Court in Marsh observed that “the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the *539property belongs to a private corporation.” 326 U. S., at 503. That distinction was not determinative:

“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Id., at 506.

Regardless of who owned or possessed the town in Marsh, the Court noted, “the public . . . has an identical interest in the functioning of the community in such manner that the channels of communication remain free,” id., at 507, and that interest was held to prevail.

The Court adopts the view that Marsh has no bearing on this case because the privately owned property in Marsh involved all the characteristics of a typical town. But there is nothing in Marsh to suggest that its general approach was limited to the particular facts of that case. The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town.

In Logan Valley we recognized what the Court today refuses to recognize — that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces ■the “State” from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping cen*540ter may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town.7 I simply cannot reconcile the Court’s denial of any role for the First Amendment in the shopping center with Marsh’s recognition of a full role for the First Amendment on the streets and sidewalks of the company-owned town.

My reading of Marsh admittedly carried me farther than the Court in Lloyd, but the Lloyd Court remained responsive in its own way to the concerns underlying Marsh. Lloyd retained the availability of First Amendment protection when the picketing is related to the function of the shopping center, and when there is no other reasonable opportunity to convey the message to the intended audience. Preserving Logan Valley subject to Lloyd’s two related criteria guaranteed that the First Amendment would have application in those situations in which the shopping center owner had most clearly monopolized the forums essential for effective communication. This result, although not the optimal one in my view, Lloyd Corp. v. Tanner, 407 U. S., at 579-583 (Marshall, J., dissenting), is nonetheless defensible.

In Marsh, the private entity had displaced the “state” from control of all the places to which the public had historically enjoyed access for First Amendment purposes, and the First Amendment was accordingly held fully applicable to the private entity’s conduct. The shopping center owner, on the other hand, controls only *541a portion of such places, leaving other traditional public forums available to the citizen. But the shopping center owner may nevertheless control all places essential for the effective undertaking of some speech-related activities — namely, those related to the activities of the shopping center. As for those activities, then, the First Amendment ought to have application under the reasoning of Marsh, and that was precisely the state of the law after Lloyd.

The Court’s only apparent objection to this analysis is that it makes the applicability of the First Amendment turn to some degree on the subject matter of the speech. But that in itself is no objection, and the cases cited by the Court to the effect that government may not “restrict expression because of its message, its ideas, its subject matter, or its content,” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972), are simply inapposite. In those cases, it was clearly the government that was acting, and the First Amendment’s bar against infringing speech was unquestionably applicable; the Court simply held that the government, faced with a general command to permit speech, cannot choose to forbid some speech because of its message. The shopping center cases are quite different; in these cases the primary regulator is a private entity whose property has “assume[d] to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB, 407 U. S., at 547. The very question in these cases is whether, and under what circumstances, the First Amendment has any application at all. The answer to that question, under the •view of Marsh described above, depends to some extent on the subject of the speech the private entity seeks to regulate, because the degree to which the private entity monopolizes the effective channels of communication *542may depend upon what subject is involved.8 This limited reference to the subject matter of the speech poses none of the dangers of government suppression or censorship that lay at the heart of the cases cited by the Court. See, e. g., Police Dept. of Chicago v. Mosley, supra, at 95-96. It is indeed ironic that those cases, whose obvious concern was the promotion of free speech, are cited today to require its surrender.

In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment’s guarantee of freedom of speech. No one would seriously question the legitimacy of the values of privacy and individual autonomy traditionally associated with privately owned property. But property that is privately owned is not always held for private use, and when a property owner opens his property to public use the force of those values diminishes. A degree of privacy is necessarily surrendered; thus, the privacy interest that petitioner retains when he leases space to 60 retail businesses and invites the public onto his land for the transaction of business with other members of the public is small indeed. Cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 65-67 (1973). And while the owner of property open to public use may not automatically surrender any of his autonomy interest in managing the property as he sees fit, there is nothing new about the notion that that autonomy interest must be accommodated with the interests of the public. As *543this Court noted some time ago, albeit in another context:

“Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U. S. 113, 126 (1877).

The interest of members of the public in communicating with one another on subjects relating to the businesses that occupy a modern shopping center is substantial. Not only employees with a labor dispute, but also consumers with complaints against business establishments, may look to the location of a retail store as the only reasonable avenue for effective communication with the public. As far as these groups are concerned, the shopping center owner has assumed the traditional role of the state in its control of historical First Amendment forums. Lloyd and Logan Valley recognized the vital role the First Amendment has to play in such cases, and I believe that this Court errs when it holds otherwise.

POSNER, Chief Judge.

The plaintiffs — an ophthalmic clinic known as the “Desniek Eye Center” after its owner, Dr. Desniek, and two ophthalmic surgeons employed by the clinic, Glazer and Simon— appeal from the dismissal of their suit against the ABC television network, a producer of the ABC program PrimeTime Live named Entine, and the program’s star reporter, Donaldson. The suit is for trespass, defamation, and other torts arising out of the production and broadcast of a program segment of PrimeTime Live that was highly critical of the Desniek Eye Center. Federal jurisdiction is based primarily on diversity of citizenship (though there is one federal claim), with Illinois law, and to a lesser extent Wisconsin and Indiana law, supplying the substantive rules on which decision is to be based. The suit was dismissed for failure to state a claim. See Desnick v. Capital Cities/ABC, Inc., 851 F.Supp. 303 (N.D.Ill.1994). The record before us is limited to the complaint and to a transcript, admitted to be accurate, of the eomplained-about segment.

In March of 1993 Entine telephoned Dr. Desniek and told him that PrimeTime Live wanted to do a broadcast segment on large cataract practices. The Desniek Eye Center has 25 offices in four midwestern states and performs more than 10,000 cataract operations a year, mostly on elderly persons whose cataract surgery is paid for by Medicare. *1348The complaint alleges — and in the posture of the case we must take the allegations to be true, though of course they may not be — that Entine told Desnick that the segment would not be about just one cataract practice, that it would not involve “ambush” interviews or “undercover” surveillance, and that it would be “fair and balanced.” Thus reassured, Desnick permitted an ABC crew to videotape the Desnick Eye Center’s main premises in Chicago, to film a cataract operation “live,” and to interview doctors, technicians, and patients. Desnick also gave Entine a videotape explaining the Desnick Eye Center’s services.

Unbeknownst to Desnick, Entine had dispatched persons equipped with concealed cameras to offices of the Desnick Eye Center in Wisconsin and Indiana. Posing as patients, these persons — seven in all — requested eye examinations. Plaintiffs Glazer and Simon are among the employees of the Des-nick Eye Center who were secretly videotaped examining these “test patients.”

The program aired on June 10. Donaldson introduces the segment by saying, “We begin tonight with the story of a so-called ‘big cutter,’ Dr. James Desnick.... [I]n our undercover investigation of the big cutter you’ll meet tonight, we turned up evidence that he may also be a big charger, doing unnecessary cataract surgery for the money.” Brief interviews with four patients of the Desnick Eye Center follow. One of the patients is satisfied (“I was blessed”); the other three are not — one of them says, “If you got three eyes, he’ll get three eyes.” Donaldson then reports on the experiences of the seven test patients. The two who were under 65 and thus not eligible for Medicare reimbursement were told they didn’t need cataract surgery. Four of the other five were told they did. Glazer and Simon are shown recommending cataract surgery to them. Donaldson tells the viewer that PrimeTime Live has hired a professor of ophthalmology to examine the test patients who had been told they needed cataract surgery, and the professor tells the viewer that they didn’t need it — with regard to one he says, “I think it would be near malpractice to do surgery on him.” Later in the segment he denies that this could just be an honest difference of opinion between professionals.

An ophthalmic surgeon is interviewed who had turned down a job at the Desnick Eye Center because he would not have been “able to screen who I was going to operate on.” He claims to have been told by one of the doctors at the Center (not Glazer or Simon) that “as soon as I reject them [i.e., turn down a patient for cataract surgery], they’re going in the next room to get surgery.” A former marketing executive for the Center says Des-nick took advantage of “people who had Alzheimer’s, people who did not know what planet they were on, people whose quality of life wouldn’t change one iota by having cataract surgery done.” Two patients are interviewed who report miserable experiences with the Center — one claiming that the doctors there had failed to spot an easily visible melanoma, another that as a result of unnecessary cataract surgery her “eye ruptured,” producing “running pus.” A former employee tells the viewer that Dr. Desnick alters patients’ medical records to show they need cataract surgery — for example, changing the record of one patient’s vision test from 20/30 to 20/80 — and that he instructs all members of his staff to use pens of the same color in order to facilitate the alteration of patients’ records.

One symptom of cataracts is that lights of normal brightness produce glare. Glazer is shown telling a patient, “You know, you’re getting glare. I would say we could do significantly better [with an operation].” And Simon is shown asking two patients, “Do you ever notice any glare or blurriness when you’re driving, or difficulty with the signs?” Both say no, and immediately Donaldson tells the viewer that “the Desnick Center uses a very interesting machine, called an auto-refractor, to determine whether there are glare problems.” Donaldson demonstrates the machine, then says that “Paddy Kalish is an optometrist who says that when he worked at the Desnick clinic from 1987 to 1990, the machine was regularly rigged. He says he watched a technician tamper with the machine, this way” — and then Kalish gives a demonstration, adding, “This happened routinely for all the older patients that came in *1349for the eye exams.” Donaldson reveals that Dr. Desniek has obtained a judgment against Kalish for defamation, but adds that “Kalish is not the only one to tell us the machine may have been rigged. PrimeTime talked to four other former Desniek employees who say almost everyone failed the glare test.”

There is more, including mention of a proceeding begun by the Illinois Medical Board in which Dr. Desniek is charged with a number of counts of malpractice and deception— and an “ambush” interview. Donaldson accosts Desniek at O’Hare Airport and cries, “Is it true, Doctor, that you changed medical records to show less vision than your patients actually have? We’ve been told, Doctor, that you’ve changed the glare machine so we have a different reading. Is that correct? Doctor, why won’t you respond to the questions?”

The plaintiffs’ claims fall into two distinct classes. The first arises from the broadcast itself, the second from the means by which ABC and Entine obtained the information that they used in the broadcast. The first is a class of one. The broadcast is alleged to have defamed the three plaintiffs by charging that the glare machine is tampered with. No other aspect of the broadcast is claimed to be tortious. The defendants used excerpts from the Desniek videotape in the broadcast, and the plaintiffs say that this was done without Dr. Desnick’s permission. But they do not claim that in showing the videotape without authorization the defendants infringed copyright, cast the plaintiffs in a false light, or otherwise invaded a right, although they do claim that the defendants had obtained the videotape fraudulently (a claim in the second class). And they do not claim that any of the other charges in the broadcast that are critical of them, such as that they perform unnecessary surgery or that Dr. Desniek tampers with patients’ medical records, are false.

We begin with the charge of defamation, which the parties agree is governed by Illinois law. The district judge ruled that Glazer and Simon could not establish defamation concerning the tampering with the glare machine because the viewer would not think that they were being accused of doing the tampering. Courts used to strain to find that a defamatory statement that did not actually name the plaintiff might reasonably be understood to be about someone else; this was the “innocent construction” rule. John v. Tribune Co., 24 Ill.2d 437, 181 N.E.2d 105, 108 (1962). But in modern law it is enough if the audience would be likely to think that the defendant was talking about the plaintiff. Chapski v. Copley Press, 92 Ill.2d 344, 65 Ill.Dec. 884, 442 N.E.2d 195 (1982); Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1226 (7th Cir.1993) (applying Illinois law).

Whether it would think that or not is treated by the Illinois courts as a question of law, to be decided by the judge subject to plenary appellate review. Chapski v. Copley Press, supra, 65 Ill.Dec. at 888, 442 N.E.2d at 199. We have done the same in diversity cases in which Illinois law supplies the rule of decision, Babb v. Minder, 806 F.2d 749, 757 and n. 3 (7th Cir.1986); Action Repair, Inc. v. American Broadcasting Cos., 776 F.2d 143, 145 (7th Cir.1985), but without remarking that this question — whether application of the innocent construction rule is a question of fact or of law, and the scope of appellate review — is one of federal, not of state, law. For it is a question about the control of the jury and the relation of the appellate to the trial court, rather than about the substantive law of defamation. See Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir.1994); Coplay Cement Co. v. Willis & Paul Group, 983 F.2d 1435, 1438 (7th Cir.1993). But as no party in the present case has questioned the propriety of plenary review, we shall leave the question whether the federal rule should be identical to Illinois’s rule for another day.

The part of the broadcast about the tampering with the glare machine follows immediately upon Dr. Simon’s asking test patients about glare; and earlier Dr. Glazer had been shown asking the same thing of another test patient. The inference that Glazer and Simon are mixed up in the tampering is not inevitable, but it is sufficiently probable to entitle them to sue. Rosner v. Field Enterprises, Inc., 205 Ill.App.3d 769, 151 Ill.Dec. 154, 176, 564 N.E.2d 131, 153 (1990). Kalish tells the viewer that the glare machine is tampered with in all eases involv*1350ing elderly patients, and hence by implication in cases handled by Drs. Glazer and Simon. And elsewhere the broadcast segment has insinuated that any doctor who works for the Desnick Eye Center is unethical. It is true that Kalish says that technicians do the tampering. But presumably they do so under a doctor’s direction. Most viewers would infer that Glazer and Simon, if they did not actually change the setting on the machine themselves, were complicit with the actual tamperer. And even if this were wrong, it would not justify dismissal of the defamation count with respect to the other plaintiff, the Des-nick Eye Center itself.

The judge also ruled, however, that the defamation count failed because the allegation that the plaintiffs tampered with the glare machine did not significantly increase the damage to their reputations inflicted by the parts of the broadcast segment they do not challenge. If a false accusation cannot do any incremental harm to the plaintiffs deserved reputation because the truth if known would have demolished his reputation already, he has not been harmed by the false accusation and therefore has no remedy. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1227-29. This is provided, however, that the false accusation is closely related to the true facts. A sexual deviant might have a worse reputation than an embezzler, but it would not be a defense to a charge of falsely accusing a person of being an embezzler that while he is not an embezzler, he is a sexual deviant, and that is worse. Such a rule “would strip people who had done bad things of any legal protection against being defamed; they would be defamation outlaws.” Id. at 1228; see also Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1568 and n. 6 (D.C.Cir.1984), vacated on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The doctrine that we have been describing goes by the name of “substantial truth.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516-17, 111 S.Ct. 2419, 2432-33, 115 L.Ed.2d 447 (1991); Lemons v. Chronicle Publishing Co., 253 Ill.App.3d 888, 192 Ill.Dec. 634, 636, 625 N.E.2d 789, 791 (1993); Moldea v. New York Times Co., 15 F.3d 1137, 1150, modified on other grounds, 22 F.3d 310, 313 (D.C.Cir.1994). Here is an example from Haynes. The defendants’ book said that Haynes had lost a job or jobs because of drinking. What was true was that, during a period in which he was indeed drinking heavily, he lost his job because his supervisor found an unopened bottle of liquor (which Haynes had received from a friend) in his pocket. Moreover, the author had left out of the book a number of very damaging facts about Haynes that later emerged in pretrial discovery, including the fact that he had been arrested and jailed for assaulting a police officer after drinking. Everything considered, the literal truth about Haynes’s drinking was neither materially different from, nor significantly less damning than, the falsehood.

Haynes had been decided on summary judgment, after the defendants had obtained the complete facts about Mr. Haynes in discovery. We said that the question whether a defamatory work is substantially true although erroneous in some details is ordinarily a jury question but that given the facts that had emerged in discovery no reasonable jury could find a significant incremental harm. 8 F.3d at 1228. In this ease there has been no discovery, so dismissal was justified only if it is clear from the transcript of the broadcast segment itself that the plaintiffs could not have been harmed by the charge that they tampered with the glare machine. This may seem clear because they do not challenge the other charges in the broadcast — such as that the Desnick Eye Center performs unnecessary surgery, sometimes with harmful results, that it preys on ignorant old people, and that Dr. Desnick alters patients’ records to show a need for cataract surgery where there is none. These are serious charges, but unlike the situation in the Haynes case they neither are admitted nor are established by uneontested affidavits or other undisputed or indisputable evidence. Given the obstacles to proving defamation, the failure to mount a legal challenge to a defamatory statement cannot be considered an admission that the statement is true.

And even if all these other charges had been admitted or demonstrated to be true, *1351we could not say on this bare record that the charge of rigging the glare machine adds nothing to them. The other charges, even the alteration of patients’ records, either fall into a gray area where disagreement merges with misconduct and disappointment in results with charges of malpractice, or are easily explained away without having to be denied — Desnick claimed merely to be correcting erroneous entries in patients’ records made by his technicians. There can be no explaining away the alteration of the settings on an ophthalmic machine so that a person with normal eyesight (Donaldson, who demonstrated the effect of the tampering with the machine on himself) experiences the symptoms of cataract. It is a particularly shocking charge to make against a clinic and its physicians. It would be one thing to accuse a radiologist of misreading x-rays, and another to accuse him of altering his x-ray machine so that a normal person was shown with a tumor on his lung.

Of course, when additional facts about the Desnick Eye Center are brought to light in discovery, it may turn out either that the machine was indeed tampered with or that, even if it was not, the plaintiffs did so many other bad things in the line of Medicare fraud that the tampering fades into insignificance. But this is not so clear at this stage that the defamation count of the complaint can properly be dismissed.

The second class of claims in this ease concerns, as we said, the methods that the defendants used to create the broadcast segment. There are four such claims: that the defendants committed a trespass in insinuating the test patients into the Wisconsin and Indiana offices of the Desnick Eye Center, that they invaded the right of privacy of the Center and its doctors at those offices (specifically Glazer and Simon), that they violated federal and state statutes regulating electronic surveillance, and that they committed fraud by gaining access to the Chicago office by means of a false promise that they would present a “fair and balanced” picture of the Center’s operations and would not use “ambush” interviews or undercover surveillance.

To enter upon another’s land without consent is a trespass. The force of this rule has, it is true, been diluted somewhat by concepts of privilege and of implied consent. But there is no journalists’ privilege to trespass. Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768, 780-81 (App.1980); Le Mistral, Inc. v. Columbia Broadcasting System, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978). And there can be no implied consent in any non-fietitious sense of the term when express consent is procured by a misrepresentation or a misleading omission. The Desnick Eye Center would not have agreed to the entry of the test patients into its offices had it known they wanted eye examinations only in order to gather material for a television exposé of the Center and that they were going to make secret videotapes of the examinations. Yet some eases, illustrated by Martin v. Fidelity & Casualty Co., 421 So.2d 109, 111 (Ala.1982), deem consent effective even though it was procured by fraud. There must be something to this surprising result. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy. Dinner guests would be trespassers if they were false friends who never would have been invited had the host known their true character, and a consumer who in an effort to bargain down an automobile dealer falsely claimed to be able to buy the same car elsewhere at a lower price would be a trespasser in the dealer’s showroom. Some of these might be classified as privileged trespasses, designed to promote competition. Others might be thought justified by some kind of implied consent — the restaurant critic for example might point by way of analogy to the use of the “fair use” defense by book reviewers charged with copyright infringement and argue that the restaurant industry as a whole would be injured if restaurants could exclude critics. But most such efforts at rationalization would be little better than evasions. The fact is that consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent.

*1352The law’s willingness to give effect to consent procured by fraud is not limited to the tort of trespass. The Restatement gives the example of a man who obtains consent to sexual intercourse by promising a woman $100, yet (unbeknownst to her, of course) he pays her with a counterfeit bill and intended to do so from the start. The man is not guilty of battery, even though unconsented-to sexual intercourse is a battery. Restatement (Second) of Torts § 892B, illustration 9, pp. 373-74 (1979). Yet we know that to conceal the fact that one has a venereal disease transforms “consensual” intercourse into battery. Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920). Seduction, standardly effected by false promises of love, is not rape, Pletnikoff v. State, 719 P.2d 1039, 1043 (Alaska App.1986); intercourse under the pretense of rendering medical or psychiatric treatment is, at least in most states. Compare State v. Tizard, 1994 WL 630498, *8-10 (Tenn.Crim.App. Nov. 10, 1994), with Boro v. Superior Court, 163 Cal.App.3d 1224, 210 Cal.Rptr. 122 (1985). It certainly is battery. Bowman v. Home Life Ins. Co., 243 F.2d 331 (3d Cir.1957); Commonwealth v. Gregory, 132 Pa.Super. 507, 1 A.2d 501 (1938). Trespass presents close parallels. If a homeowner opens his door to a purported meter reader who is in fact nothing of the sort — just a busybody curious about the interior of the home — the homeowner’s consent to his entry is not a defense to a suit for trespass. See State v. Donahue, 93 Or.App. 341, 762 P.2d 1022, 1025 (1988); Bouillon v. Laclede Gaslight Co., 148 Mo.App. 462, 129 S.W. 401, 402 (1910). And likewise if a competitor gained entry to a business firm’s premises posing as a customer but in fact hoping to steal the firm’s trade secrets. Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178 (7th Cir.1991); E.I. duPont deNemours & Co. v. Christopher, 431 F.2d 1012, 1014 (5th Cir.1970).

How to distinguish the two classes of case — the seducer from the medical impersonator, the restaurant critic from the meter-reader impersonator? The answer can have nothing to do with fraud; there is fraud in all the eases. It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person’s property. The woman who is seduced wants to have sex with her seducer, and the restaurant owner wants to have customers. The woman who is victimized by the medical impersonator has no desire to have sex with her doctor; she wants medical treatment. And the homeowner victimized by the phony meter reader does not want strangers in his house unless they have authorized service functions. The dealer’s objection to the customer who claims falsely to have a lower price from a competing dealer is not to the physical presence of the customer, but to the fraud that he is trying to perpetuate. The lines are not bright — they are not even inevitable. They are the traces of the old forms of action, which have resulted in a multitude of artificial distinctions in modern law. But that is nothing new.

There was no invasion in the present ease of any of the specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal, communications with strangers (the testers themselves). The activities of the offices were not disrupted, as in People v. Segal, 78 Misc.2d 944, 358 N.Y.S.2d 866 (Crim.Ct.1974), another case of gaining entry by false pretenses. See also Le Mistral, Inc. v. Columbia Broadcasting System, supra, 402 N.Y.S.2d at 81 n. 1. Nor was there any “inva[sion of] a person’s private space,” Haynes v. Alfred A Knopf, Inc., supra, 8 F.3d at 1229, as in our hypothetical meter-reader ease, as in the famous case of De May v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881) (where a doctor, called to the plaintiffs home to deliver her baby, brought along with him a friend who was curious to see a birth but was not a medical doctor, and represented the friend to be his medical assistant), as in one of its numerous modem counterparts, Miller v. National Broadcasting Co., 187 Cai.App.3d 1463, 232 Cal.Rptr. 668, 679 (1986), and as in Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir.1971), on which the plaintiffs in our case rely. Diete-mann involved a home. Trae, the portion *1353invaded was an office, where the plaintiff performed quack healing of nonexistent ailments. The parallel to this case is plain enough, but there is a difference. Diete-mann was not in business, and did not advertise his services or charge for them. His quackery was private.

No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment, because there would have been no invasion of a legally protected interest in property or privacy. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 427-28, 17 L.Ed.2d 312 (1966); Forster v. County of Santa Barbara, 896 F.2d 1146, 1148-49 (9th Cir.1990); Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir.1979). "Testers" who pose as prospective home buyers in order to gather evidence of housing discrimination are not trespassers even if they are private persons not acting under color of law. Cf. id. at 1355. The situation of the defendants' "testers" is analogous. Like testers seeking evidence of violation of anti-discrimination laws, the defendants' test patients gained entry into the plaintiffs' premises by misrepresenting their purposes (more precisely by a misleading omission to disclose those purposes). But the entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land. We need not consider what if any difference it would make if the plaintiffs had festooned the premises with signs forbidding the entry of testers or other snoops. Perhaps none, see United States v. Centennial Builders, Inc., 747 F.2d 678, 683 (11th Cir.1984), but that is an issue for another day.

What we have said largely disposes of two other claims-infringement of the right of privacy, and illegal wiretapping. The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations. Haynes v. Alfred A. Knopf, Inc., supra, 8 F.3d at 1229; Zinda v. Louisiana Pacific Corp., 149 Wis.2d 913, 440 N.W.2d 548, 555 (1989); Doe v. Methodist Hospital, 639 N.E.2d 683, 685 (Ind.App.1994). As we have said already, no intimate personal facts concerning the two individual plaintiffs (remember that Dr. Desnick himself is not a plaintiff) were revealed; and the only conversations that were recorded were conversations with the testers themselves. Thomas v. Pearl, 998 F.2d 447, 452 (7th Cir.1993).

The federal and state wiretapping statutes that the plaintiffs invoke allow one party to a conversation to record the conversation unless his purpose in doing so is to commit a crime or a tort or (in the case of the state, but not the federal, law) to do "other injurious acts." 18 U.S.C. § 2511(2)(d); Wis.Stat. § 968.31(2)(c); Thomas v. Pearl, supra, 998 F.2d at 451; State v. Waste Management of Wisconsin, Inc., 81 Wis.2d 555, 261 N.W.2d 147, 154 (1978). The defendants did not order the camera-armed testers into the Desnick Eye Center's premises in order to commit a crime or tort. Maybe the program as it was eventually broadcast was tortious, for we have said that the defamation count was dismissed prematurely. But there is no suggestion that the defendants sent the testers into the Wisconsin and Illinois offices for the purpose of defaming the plaintiffs by charging tampering with the glare machine. The purpose, by the plaintiffs' own account, was to see whether the Center's physicians would recommend cataract surgery on the testers. By the same token it was not to injure the Desnick Eye Center, unless the public exposure of misconduct is an "injurious act" within the meaning of the Wisconsin statute. Telling the world the truth about a Medicare *1354fraud is hardly what the framers of the statute could have had in mind in forbidding a person to record his own conversations if he was trying to commit an “injurious act.” See id., 261 N.W.2d at 154 and n. 17.

Last is the charge of fraud in the defendants’ gaining entry to the Chicago office and being permitted while there to interview staff and film a cataract operation, and in their obtaining the Desnick Eye Center’s informational videotape. The alleged fraud consists of a series of false promises by the defendants — that the broadcast segment would be fair and balanced and that the defendants would not use “ambush” interviews or undercover surveillance tactics in making the segment. Since the promises were given in exchange for Desnick’s permission to do things calculated to enhance the value of the broadcast segment, they were, one might have thought, supported by consideration and thus a basis for a breach of contract suit. That we need not decide. The plaintiffs had a claim for breach of contract in their complaint and it survived the motion to dismiss, but they voluntarily dismissed the claim so that there would be a final judgment from which they could appeal. The only issue before us is fraud.

Unlike most states nowadays, Illinois does not provide a remedy for fraudulent promises (“promissory fraud”) — unless they are part of a “scheme” to defraud. Willis v. Atkins, 412 Ill. 245, 106 N.E.2d 370, 377-78 (1952); Stamatakis Industries, Inc. v. King, 165 Ill.App.3d 879, 117 Ill.Dec. 419, 421-22, 520 N.E.2d 770, 772-73 (1987); Bower v. Jones, 978 F.2d 1004, 1011-12 (7th Cir.1992). The distinction between a mere promissory fraud and a scheme of promissory fraud is elusive, and has caused, to say the least, considerable uncertainty, as even the Illinois cases acknowledge. E.g., Stamatakis Industries, Inc. v. King, supra, 117 Ill.Dec. at 421-22, 520 N.E.2d at 772-73; Vance Pearson, Inc. v. Alexander, 86 Ill.App.3d 1105, 42 Ill.Dec. 204, 209, 408 N.E.2d 782, 787 (1980). Some cases suggest that the exception has swallowed the rule. Id., 42 Ill.Dec. at 209, 408 N.E.2d at 787; Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1004 (7th Cir.1989); Price v. Highland Community Bank, 722 F.Supp. 454, 460 (N.D.Ill.1989). Others seem unwUUng to apply the exception. For a good discussion, see Michael J. PoleUe, “An Ilhnois’ Choice: FossU Law or an Action for Promissory Fraud?” 32 DePaul L.Rev. 565, 578-88 (1983).

The distinction certainly is unsatisfactory, but it reflects an understandable ambivalence, albeit one shared by few other states, about allowing suits to be based on nothing more than an aUegation of a fraudulent promise. There is a risk of turning every breach of contract suit into a fraud suit, of circumventing the limitation that the doctrine of consideration is supposed however ineptly to place on making all promises legally enforceable, and of thwarting the rule that denies the award of punitive damages for breach of contract. A great many promises belong to the realm of puffery, bragging, “mere words,” and casual bonhomie, rather than to that of serious commitment. They are not intended to and ordinarily do not induce reUance; a healthy skepticism is a better protection against being fooled by them than the costly remedies of the law. In any event it is not our proper role as a federal court in a diversity suit to read “scheme” out of Illinois law; we must give it some meaning. Our best interpretation is that promissory fraud is actionable only if it either is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy.

We cannot view the fraud alleged in this case in that light. Investigative journalists well known for ruthlessness promise to wear kid gloves. They break their promise, as any person of normal sophistication would expect. If that is “fraud,” it is the kind against which potential victims can easily arm themselves by maintaining a minimum of skepticism about journalistic goals and methods. Des-nick, needless to say, was no tyro, or child, or otherwise a member of a vulnerable group. He is a successful professional and entrepreneur. No legal remedies to protect him from what happened are required, or by Illinois provided. It would be different if the false promises were stations on the way to taking *1355Desnick to the cleaners. An elaborate artifice of fraud is the central meaning of a scheme to defraud through false promises. The only scheme here was a scheme to expose publicly any bad practices that the investigative team discovered, and that is not a fraudulent scheme.

Anyway we cannot see how the plaintiffs could have been harmed by the false promises. We may assume that had the defendants been honest, Desnick would have refused to admit the ABC crew to the Chicago premises or given Entine the videotape. But none of the negative parts of the broadcast segment were supplied by the visit to the Chicago premises or came out of the informational videotape, and Desnick could not have prevented the ambush interview or the undercover surveillance. The so-called fraud was harmless.

One further point about the claims concerning the making of the program segment, as distinct from the content of the segment itself, needs to be made. The Supreme Court in the name of the First Amendment has hedged about defamation suits, even when not brought by public figures, with many safeguards designed to protect a vigorous market in ideas and opinions. Today’s “tabloid” style investigative television reportage, conducted by networks desperate for viewers in an increasingly competitive television market (see Capital Cities/ABC, Inc. v. FCC, 29 F.3d 309 (7th Cir.1994)), constitutes — although it is often shrill, one-sided, and offensive, and sometimes defamatory — an important part of that market. It is entitled to all the safeguards with which the Supreme Court has surrounded liability for defamation. And it is entitled to them regardless of the name of the tort, see, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), and, we add, regardless of whether the tort suit is aimed at the content of the broadcast or the production of the broadcast. If the broadcast itself does not contain actionable defamation, and no established rights are invaded in the process of creating it (for the media have no general immunity from tort or contract liability, Cohen v. Cowles Media Co., 501 U.S. 663, 669-70, 111 S.Ct. 2513, 2518-19, 115 L.Ed.2d 586 (1991); Le Mistral, Inc. v. Columbia Broadcasting System, supra), then the target has no legal remedy even if the investigatory tactics used by the network are surreptitious, confrontational, unscrupulous, and ungentlemanly. In this ease, there may have been — it is too early to tell — an actionable defamation, and if so the plaintiffs have a remedy. But none of their established rights under either state law or the federal wiretapping law was infringed by the making, as opposed to the dissemination, of the broadcast segment of which they complain, with the possible and possibly abandoned exception of contract law.

Affirmed in Part, Reversed in Part, and Remanded.

SHEPARD, Justice.

This is an appeal from a judgment ordering partial abatement of a spite fence erected between two adjoining motels in Caldwell, Idaho. This action is evidently an outgrowth of a continuing dispute between the parties resulting from the 1966 sale of a motel. See: King v. H. J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (1971).

In 1966 Robert Bushnell sold a motel to defendants-appellants King. Bushnell then built another motel, the Desert Inn, on property immediately adjoining that sold to the Kings.

The Kings thereafter brought an action against Bushnell (H. J. McNeel, Inc.) based on alleged misrepresentations by Bushnell in the 1966 sale of the motel property. See: King v. H. J. McNeel, Inc., supra. In 1968 the Kings built a large structure, variously described as a fence or sign, some 16 inches from the boundary line between the King and Bushnell properties. The structure is 85 ft. in length and 18 ft. in height. It is raised 2 ft. off the ground and is 2 ft. from the Desert Inn building. It parallels the entire northwest side of the Desert Inn building, obscures approximately 80% of the Desert Inn building and restricts the passage of light and air to its rooms.

Bushnell brought the instant action seeking damages and injunctive relief compelling the removal of the structure. Following trial to the court, the district court found that the structure was erected out of spite and that it was erected in violation of a municipal ordinance. The trial court *368ordered the structure reduced to a maximum height of 6 ft.

The Kings appeal from the judgment entered against them and claim that the trial court erred in many of its findings of fact and its applications of law. The Kings assert the trial court erred in finding that the “sign” was in fact a fence; that the structure had little or no value for advertising purposes; that the structure cuts out light and air from the rooms of the Desert Inn Motel; that the structure has caused damage by way of diminution of the value of the Desert Inn Motel property; that the erection of the structure was motivated by ill-feeling and spite; that the structure was erected to establish a dividing line; and that the trial court erred in failing to find the structure was necessary to distinguish between the two adjoining motels.

We have examined the record at length and conclude that the findings of the trial court are supported by substantial although conflicting evidence. The trial court had before it both still and moving pictures of the various buildings. The record contains testimony that the structure is the largest “sign” then existing in Oregon, Northern Nevada and Idaho. An advertising expert testified that the structure, because of its location and type, had no value for advertising and that its cost, i. e., $6,300, would not be justified for advertising purposes. Findings of fact will not be set aside on appeal unless they are clearly erroneous, and when they are supported by substantial though conflicting evidence they will not be disturbed on appeal. Hisaw v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972) ; I.R.C.P. 52(a).

The absence of findings of fact may be disregarded by an appellate court if the record is so clear that they are not necessary for a complete understanding of the issues. Call v. Marler, 89 Idaho 120, 403 P.2d 588 (1965).

The pivotal and dispositive issue in this matter is whether the trial court erred in requiring partial abatement of the structure on the ground that it was a spite fence. Under the so-called English rule, followed by most 19th century American courts, the erection and maintenance of a spite fence was not an actionable wrong. These older cases were founded on the premise that a property owner has an absolute right to use his property in any manner he desires. See: 5 Powell on Real Property, ¶696, p. 276 (1949 ed. rev’d 1968); Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765 (1896).

Under the modern American rule, however, one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages. See: 5 Powell, supra, ¶696, p. 277; IA Thompson on Real Property, § 239 (1964 ed.). Many courts following the above rule further characterize a spite fence as a nuisance. See: Hornsby v. Smith; 191 Ga. 491, 13 S.E.2d 20 (1941); Barger v. Barringer, 151 N.C. 433, 66 S.E. 439 (1909); Annotation 133 A.L.R. 691.

One of the first cases rejecting the older English view and announcing the new American rule on spite fences is Burke v. Smith, 69 Mich. 380, 37 N.W. 838 (1888). Subsequently, many American jurisdictions have adopted and followed Burke so that it is clearly the prevailing modern view. See: Powell, supra, ¶696 at p. 279; Flaherty v. Moran, 81 Mich. 52, 45 N.W. 381 (1890); Barger v. Barringer, supra; Norton v. Randolph, 176 Ala. 381, 58 So. 283 (1912); Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001 (1914); Hibbard v. Halliday, 58 Okla. 244, 158 P. 1158 (1916); Parker v. Harvey, 164 So. 507 (La.App.1935); Hornsby v. Smith, supra; Brittingham v. Robertson, 280 A.2d 741 (Del.Ch.1971). Also see the opinion of Mr. Justice Holmes in Rideout v. Knox, 148 Mass. 368, 19 N.E. 390 (1889).

In Burke a property owner built two 11 ft. fences blocking the light and air to his neighbors’ windows. The fences served no useful purpose to their owner and were erected solely because of his malice *369toward his neighbor. Justice Morse applied the maxim sic uiere tuo ut alienum non laedas, and concluded:

“But it must be remembered that no man has a legal right to make a malicious use of his property, not for any benefit or advantage to himself, but for the avowed purpose of damaging his neighbor. To hold otherwise would make the law a convenient engine, in cases like the present, to injure and destroy the peace and comfort, and to damage the property, of one’s neighbor for no other than a wicked purpose, which in itself is, or ought to be, unlawful. The right to do this cannot, in an enlightened country, exist, either in the use of property, or in any way or manner. There is no doubt in my mind that these uncouth screens or ‘obscurers’ as they are named in the record, are a nuisance, and were erected without right, and for a malicious purpose. What right has the defendant, in the light of the just and beneficent principles of equity, to shut out God’s free air and sunlight from the windows of his neighbor, not for any benefit or advantage to himself, or profit to his land, but simply to gratify his own wicked malice against his neighbor? None whatever. The wanton infliction of damage can never be a right. It is a wrong, and a violation of right, and is not without remedy. The right to breath the air, and to enjoy the sunshine, is a natural one; and no man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that the situation of his property is such that he is given the opportunity of so doing, and wishes to gratify his spite and malice towards his neighbor.” 37 N.W. at 842.

We agree both with the philosophy expressed in the Burke opinion and with that of other jurisdictions following what we feel is the better-reasoned approach. We hold that no property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. The trial court found on the basis of substantial evidence that the structure served no useful purpose to its owners and was erected because of the Kings’ ill-will and emnity toward their neighboring competitor. We therefore hold that the trial court did not err in partially abating and enjoining the “sign” structure as a spite fence.

Our decision today is not entirely in harmony with White v. Bernhart, 41 Idaho 665, 241 P. 367 (1925). White held that an owner could not be enjoined from maintaining a dilapidated house as a nuisance, even though the house diminished the value of neighboring property. White is clearly distinguishable from the case at bar. Rather than a fence, it involved a dwelling house which was not maliciously erected. The rule announced herein is applicable only to structures which serve no useful purpose and are erected for the sole purpose of injuring adjoining property owners. There is dictum in White which suggests that a structure may only be enjoined when it is a nuisance per se. Such language is inconsistent with our decision today and it is hereby disapproved.

Appellants King assign error to findings and conclusions of the trial court relating to the applicability and interpretation of Caldwell Zoning Ordinance No. 1085. Our disposition of this appeal makes it unnecessary to consider those issues.

The judgment of the trial court is affirmed. Costs to respondent.

DONALDSON, C. J„ McQUADE and McFADDEN, JJ., and HAGAN, District Judge, concur.

SHIRLEY S. ABRAHAMSON, J.

This appeal from a judgment of the circuit court for Waukesha county, Max Raskin, circuit judge, was certified to this court by the court of appeals, sec. (Rule) 809.61, Stats. 1979-80, as presenting an issue of first impression, namely, whether an owner of a solar-heated residence states a claim upon which relief can be granted when he asserts that his neighbor’s proposed construction of a residence (which conforms to existing deed restrictions and local ordinances) interferes with his access to an unobstructed path for sunlight across the neighbor’s property. This case thus involves a conflict between one landowner (Glenn Prah, the plaintiff) interested in unobstructed access to sunlight across adjoining property as a natural source of energy and an adjoining landowner (Richard D. Mar-*225etti, the defendant) interested in the development of his land.

The circuit court concluded that the plaintiff presented no claim upon which relief could be granted and granted summary judgment for the defendant. We reverse the judgment of the circuit court and remand the cause to the circuit court for further proceedings.

I.

According to the complaint, the plaintiff is the owner of a residence which was constructed during the years 1978-1979. The complaint alleges that the residence has a solar system which includes collectors on the roof to supply energy for heat and hot water and that after the plaintiff built his solar-heated house, the defendant purchased the lot adjacent to and immediately to the south of the plaintiff’s lot and commenced planning construction of a home. The complaint further states that when the plaintiff learned of defendant’s plans to build the house he advised the defendant that if the house were built at the proposed location, defendant’s house would substantially and adversely affect the integrity of plaintiff’s solar system and could cause plaintiff other damage. Nevertheless, the defendant began construction. The complaint further alleges that the plaintiff is entitled to “unrestricted use of the sun and its solar power” and demands judgment for injunctive relief and damages.1

*226After filing his complaint, the plaintiff moved for a temporary injunction to restrain and enjoin construction by the defendant. In ruling on that motion the circuit court heard testimony, received affidavits and viewed the site.

The record made on the motion reveals the following additional facts: Plaintiff’s home was the first residence built in the subdivision, and although plaintiff did not build his house in the center of the lot it was built in accordance with applicable restrictions. Plaintiff advised defendant that if the defendant’s home were built at the proposed site it would cause a shadowing effect on the solar collectors which would reduce the efficiency of the system and possibly damage the system. To avoid these adverse effects, plaintiff requested defendant to locate his home an additional several feet away from the plaintiff’s lot line, the exact number being disputed. Plaintiff and defendant failed to reach an agreement on the location of defendant’s home before defendant started construction. The Architectural Control Committee of the subdivision and the Planning Commission of the City of Muskego approved the defendant’s plans for his home, including its location on the lot. After such approval, the defendant apparently changed the grade of the property without prior notice to the Architectural Control Committee.2 The problem with defendant’s proposed *227construction, as far as the plaintiff’s interests are concerned, arises from a combination of the grade and the distance of defendant’s home from the defendant’s lot line.

The circuit court denied plaintiff’s motion for injunc-tive relief, declared it would entertain a motion for summary judgment and thereafter entered judgment in favor of the defendant.

1 — 1 HH

The defendant argues that because the circuit court conducted a hearing and considered all material issues of fact, we should consider this case an appeal from a judgment after trial, not as an appeal from a summary judgment. We do not accept the defendant’s characterization of the circuit court’s proceedings.

The circuit court held a hearing to consider plaintiff’s motion for a temporary injunction. A primary consideration on such motion is whether the moving party has a reasonable probability of ultimate success; the ruling on the motion does not resolve the issue of whether the moving party will in fact ultimately succeed in the lawsuit. Werner v. Grootemaat, 80 Wis. 2d 513, 520, 259 N.W.2d 310 (1977). The circuit court denied the motion for a temporary injunction, concluding that there was no reasonable probability that the plaintiff would ultimately succeed and that the plaintiff had not stated a claim upon which relief could be granted. The circuit court ended its memorandum decision on the motion for a temporary injunction with the following comment:

*228“In as much as the court is of the opinion that the plaintiff has failed to state a claim upon which equitable relief can be granted, and the parties having joined issue, the court will entertain a motion by the defendant for summary judgment.”

This statement clearly indicates the intention and expectation of the circuit court to deal with this case on a motion for summary judgment. We therefore consider this as an appeal from a judgment entered on a motion for summary judgment.

In deciding a motion for summary judgment the initial question is the same as that on a sec. 802.06(2), Stats. 1979-80, motion to dismiss the complaint for failure to state a claim upon which relief can be granted, namely, whether the complaint states a claim upon which relief can be granted. Kanack v. Kremski, 96 Wis. 2d 426, 435, 291 N.W.2d 864 (1980) (Abrahamson, J., concurring) . If the complaint states a claim and the pleadings show the existence of factual issues, the court then examines the affidavits and other proof and determines whether there are disputed material facts that entitle the non-moving party to a trial. On summary judgment the court does not decide those issues of fact; it merely decides whether genuine issues of fact exist. Coleman v. Outboard Marine Corp., 92 Wis. 2d 565, 570-71, 285 N.W.2d 631 (1979).

In this case there is some ambiguity whether the judgment was based on the complaint or on factual matters outside the pleadings which were presented to the circuit court in connection with the motion for a temporary injunction. Consequently, we shall first test the sufficiency of the complaint and then determine whether the matters outside the pleadings present disputed material facts sufficient to justify a trial.

*229III.

In testing the sufficiency of the complaint the facts pleaded by the plaintiff, and all reasonable inferences therefrom, are accepted as true. Hartridge v. State Farm Mutual Auto Ins. Co., 86 Wis. 2d 1, 4-5, 271 N.W.2d 598 (1978). The pleadings are to be liberally construed with a view to substantial justice to the parties, sec. 802.02 (6), Stats. 1979-80, and the complaint should be dismissed as legally insufficient only if “it is quite clear that under no circumstances can the plaintiff recover.” Clausen & Lowe, The New Wisconsin Rules of Civil Procedure, Chapters 801-803, 59 Marq. L. Rev 1, 54 (1976), quoted with approval in Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 731, 275 N.W.2d 660 (1979).

The plaintiff presents three legal theories to support his claim that the defendant’s continued construction of a home justifies granting him relief: (1) the construction constitutes a common law private nuisance; (2) the construction is prohibited by sec. 844.01, Stats. 1979-80 ;3 *230and (3) the construction interferes with the solar easement plaintiff acquired under the doctrine of prior appropriation.4

As to the claim of private nuisance the circuit court concluded that the law of private nuisance requires the court to make “a comparative evaluation of the conflicting interests and to weigh the gravity of the harm to the plaintiff against the utility of the defendant’s conduct.” The circuit court concluded: “A comparative evaluation of the conflicting interests, keeping in mind the omissions and commissions of both Prah and Maretti, indicates that defendant’s conduct does not cause the gravity of the harm which the plaintiff himself may well have avoided by proper planning.” The circuit court also concluded that sec. 844.01 does not apply to a home constructed in accordance with deed and municipal ordinance requirements. Further, the circuit court rejected the prior appropriation doctrine as “an intrusion of judicial egoism over legislative passivity.”

We consider first whether the complaint states a claim for relief based on common law private nuisance. This state has long recognized that an owner of land does not have an absolute or unlimited right to use the land in a way which injures the rights of others. The rights of neighboring landowners are relative; the uses by one must not unreasonably impair the uses or enjoyment of the other.5 VI-A American Law of Property sec. 28.22, *231pp. 64-65 (1954). When one landowner’s use of his or her property unreasonably interferes with another’s enjoyment of his or her property, that use is said to be a private nuisance. Hoene v. Milwaukee, 17 Wis. 2d 209, 214, 116 N.W.2d 112 (1962); Metzger v. Hochrein, 107 Wis. 267, 269, 83 N.W. 308 (1900). See also Prosser, Law of Torts sec. 89, p. 591 (2d ed. 1971).

The private nuisance doctrine has traditionally been employed in this state to balance the conflicting rights of landowners,6 and this court has recently adopted the analysis of private nuisance set forth in the Restatement (Second) of Torts. CEW Mgmt. Corp. v. First Federal Savings & Loan Association, 88 Wis. 2d 631, 633, 277 N.W.2d 766 (1979). The Restatement defines private nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restate*232ment (Second) of Torts Sec. 821D (1977). The phrase “interest in the private use and enjoyment of land” as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property. The comment in the Restatement describes the landowner’s interest protected by private nuisance law as follows:

“The phrase ‘interest in the use and enjoyment of land’ is used in this Restatement in a broad sense. It comprehends not only the interests that a person may have in the actual present use of land for residential, agricultural, commercial, industrial and other purposes, but also his interests in having the present use value of the land unimpaired by changes in its physical condition. Thus the destruction of trees on vacant land is as much an invasion of the owner’s interest in its use and enjoyment as is the destruction of crops or flowers that he is growing on the land for his present use. ‘Interest in use and enjoyment’ also comprehends the pleasure, comfort and enjoyment that a person normally derives from the occupancy of land. Freedom from discomfort and annoyance while using land is often as important to a person as freedom from physical interruption with his use or freedom from detrimental change in the physical condition of the land itself.” Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977).

Although the defendant’s obstruction of the plaintiff’s access to sunlight appears to fall within the Restatement’s broad concept of a private nuisance as a nontres-passory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. *233This position is expressed in the maxim “cujus est solum, ejus est usque ad coelum et ad infernos,” that is, the owner of land owns up to the sky and down to the center of the earth. The rights of the surface owner are, however, not unlimited. U.S. v. Causby, 328 U.S. 256, 260-1 (1946). See also 114.03, Stats. 1979-80.

The defendant is not completely correct in asserting that the common law did not protect a landowner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge-made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time,7 the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive easement and could prevent the adjoining landowner from obstructing access to light.8

Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the English courts, American courts have afforded some protection to a landowner’s interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as incon*234sistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication. Depner v. United States National Bank, 202 Wis. 405, 408, 232 N.W. 851 (1930) ; Miller v. Hoeschler, 126 Wis. 263, 268-69, 105 N.W. 790 (1905).

Many jurisdictions in this country have protected a landowner from malicious obstruction of access to light (the spite fence cases) under the common law private nuisance doctrine.9 If an activity is motivated by malice it lacks utility and the harm it causes others outweighs any social values. VI-A Law of Property sec. 28.28, p. 79 (1954). This court was reluctant to protect a landowner’s interest in sunlight even against a spite fence, only to be overruled by the legislature. Shortly after this court upheld a landowner’s right to erect a useless and unsightly sixteen-foot spite fence four feet from his neighbor’s windows, Metzger v. Hochrain, 107 N.W. 267, 83 N.W. 308 (1900), the legislature enacted a law specifically defining a spite fence as an actionable private nuisance.10 Thus a landowner’s interest in sunlight has been pro*235tected in this country by common law private nuisance law at least in the narrow context of the modern American rule invalidating spite fences. See, e.g., Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973) ; Restatement (Second) of Torts, sec. 829 (1977).

This court’s reluctance in the nineteenth and early part of the twentieth century to provide broader protection for a landowner’s access to sunlight was premised on three policy considerations. First, the right of landowners to use their property as they wished, as long as they did not cause physical damage to a neighbor, was jealously guarded. Metzger v. Hochrein, 107 Wis. 267, 272, 83 N.W. 308 (1900).

Second, sunlight was valued only for aesthetic enjoyment or as illumination. Since artificial light could be used for illumination, loss of sunlight was at most a personal annoyance which was given little, if any, weight by society.

Third, society had a significant interest in not restricting or impeding land development. Dillman v. Hoffman, 38 Wis. 559, 574 (1875). This court repeatedly emphasized that in the growth period of the nineteenth and early twentieth centuries change is to be expected and is essential to property and that recognition of a right to sunlight would hinder property development. The court expressed this concept as follows:

“As the city grows, large grounds appurtenant to residences must be cut up to supply more residences. . . . The cistern, the outhouse, the cesspool, and the private drain must disappear in deference to the public waterworks and sewer; the terrace and the garden, to the need for more complete occupancy. . . . Strict limitation [on the recognition of easements of light and air over adjacent premises is] in accord with the popular conception upon which real estate has been and is daily being conveyed in Wisconsin and to be essential to easy and rapid development at least of our municipalities.” Mil*236ler v. Hoeschler, supra, 126 Wis. at 268, 270; quoted with approval in Depner, supra, 202 Wis. at 409.

Considering these three policies, this court concluded that in the absence of an express agreement granting access to sunlight, a landowner’s obstruction of another’s access to sunlight was not actionable. Miller v. Hoeschler, supra, 126 Wis. at 271; Depner v. United States National Bank, supra, 202 Wis. at 410. These three policies are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete.

First, society has increasingly regulated the use of land by the landowner for the general welfare. Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ; Just v. Marinette, 56 Wis. 2d 7, 201 N.W.2d 761 (1972).

Second, access to sunlight has taken on a new significance in recent years. In this case the plaintiff seeks to protect access to sunlight, not for aesthetic reasons or as a source of illumination but as a source of energy. Access to sunlight as an energy source is of significance both to the landowner who invests in solar collectors and to a society which has an interest in developing alternative sources of energy.11

*237Third, the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). The need for easy and rapid development is not as great today as it once was, while our perception of the value of sunlight as a source of energy has increased significantly.

Courts should not implement obsolete policies that have lost their vigor over the course of the years. The law of private nuisance is better suited to resolve landowners’ disputes about property development in the 1980’s than is a rigid rule which does not recognize a landowner’s interest in access to sunlight. As we said in Ballstadt v. Pagel, 202 Wis. 484, 489, 232 N.W. 862 (1930), “What is regarded in law as constituting a nuisance in modern times would no doubt have been tolerated without question in former times.” We read State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974), as an endorsement of the application of common law nuisance to situations involving the conflicting interests of landowners and as rejecting per se exclusions to the nuisance law reasonable use doctrine.

In Deetz the court abandoned the rigid common law common enemy rule with respect to surface water and adopted the private nuisance reasonable use rule, namely that the landowner is subject to liability if his or her interference with the flow of surface waters unreasonably invades a neighbor’s interest in the use and enjoyment of land. Restatement (Second) of Torts, sec. 822, 826, 829 (1977). This court concluded that the common enemy rule which served society “well in the days of burgeoning national expansion of the mid-nineteenth and *238early-twentieth centuries” should be abandoned because it was no longer “in harmony with the realities of our society.” Deetz, supra, 66 Wis. 2d at 14-15. We recognized in Deetz that common law rules adapt to changing social values and conditions.12

Yet the defendant would have us ignore the flexible private nuisance law as a means of resolving the dispute between the landowners in this case and would have us adopt an approach, already abandoned in Deetz, of favoring the unrestricted development of land and of applying a rigid and inflexible rule protecting his right to build on his land and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do.13

*239Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner’s right of access to sunlight and another landowner’s right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land.14

*240We therefore hold that private nuisance law, that is, the reasonable use doctrine as set forth in the Restatement, is applicable to the instant case. Recognition of a nuisance claim for unreasonable obstruction of access to sunlight will not prevent land development or unduly hinder the use of adjoining land. It will promote the reasonable use and enjoyment of land in a manner suitable to the 1980’s. That obstruction of access to light might be found to constitute a nuisance in certain circumstances does not mean that it will be or must be found to constitute a nuisance under all circumstances. The result in each case depends on whether the conduct complained of is unreasonable.

Accordingly we hold that the plaintiff in this case has stated a claim under which relief can be granted. Nonetheless we do not determine whether the plaintiff in this case is entitled to relief. In order to be entitled to relief the plaintiff must prove the elements required to establish actionable nuisance, and the conduct of the defendant herein must be judged by the reasonable use doctrine.

IV.

The defendant asserts that even if we hold that the private nuisance doctrine applies to obstruction of access to sunlight across adjoining land, the circuit court’s granting of summary judgment should be affirmed.

Although the memorandum decision of the circuit court in the instant case is unclear, it appears that the circuit court recognized that the common law private nuisance doctrine was applicable but concluded that defendant’s conduct was not unreasonable.15 The circuit court ap*241parently attempted to balance the utility of the defendant’s conduct with the gravity of the harm. Sec. 826, Restatement (Second) of Torts (1977).16 The defendant urges us to accept the circuit court’s balance as adequate. We decline to do so.

*242The circuit court concluded that because the defendant’s proposed house was in conformity with zoning regulations, building codes and deed restrictions, the defendant’s use of the land was reasonable. This court has concluded that a landowner’s compliance with zoning laws does not automatically bar a nuisance claim. Compliance with the law “is not the controlling factor, though it is, of course, entitled to some weight.” Bie v. Ingersoll, 27 Wis. 2d 490, 495, 135 N.W.2d 250 (1965). The circuit court also concluded that the plaintiff could have avoided any harm by locating his own house in a better place. Again, plaintiff’s ability to avoid the harm is a relevant but not a conclusive factor. See secs. 826, 827, 828, Restatement (Second) of Torts (1977).

Furthermore, our examination of the record leads us to conclude that the record does not furnish an adequate basis for the circuit court to apply the proper legal principles on summary judgment. The application of the reasonable use standard in nuisance cases normally requires a full exposition of all underlying facts and circumstances. Too little is known in this case of such matters as the extent of the harm to the plaintiff, the suitability of solar heat in that neighborhood, the availability of remedies to the plaintiff, and the costs to the defendant of avoiding the harm.17 Summary judgment is not an appropriate procedural vehicle in this case when the circuit court must weigh evidence which has not been presented at trial. 6 (Pt. 2) Moore’s Federal Practice, 56.15 [7], pp. 56-638 (1982) ; 10 Wright and Miller, Federal Practice and Procedure — Civil, secs. 2729, 2731 (1973).

Because the plaintiff has stated a claim of common law private nuisance upon which relief can be granted, the judgment of the circuit court must be reversed. We need not, and do not, reach the question of whether the complaint states a claim under sec. 844.01, Stats. 1979-*24380, or under the doctrine of prior appropriation. Attoe v. Madison Professional Policemen’s Assoc., 79 Wis. 2d 199, 205, 255 N.W.2d 489 (1977).

For the reasons set forth, we reverse the judgment of the circuit court dismissing the complaint and remand the matter to circuit court for further proceedings not inconsistent with this opinion.

By the Court. — The judgment of the circuit court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Ceci, J., took no part.

WILLIAM G. CALLOW, J.

(dissenting). The majority has adopted the Restatement’s reasonable use doctrine to grant an owner of a solar heated home a cause of action against his neighbor who, in acting entirely within the applicable ordinances and statutes, seeks to design and build his home in such a location that it may, at various times during the day, shade the plaintiff’s solar collector, thereby impeding the efficiency of his heating system1 during several months of the year. Because I believe the facts of this case clearly reveal that a cause of action for private nuisance will not lie, I dissent.

The majority arrives at its conclusion that the common law private nuisance doctrine is applicable by analogizing this situation with the spite fence cases which protect a landowner from malicious obstruction of access to light. Supra, at 233-235. See Piccirilli v. Groccia, 114 R.I. 36, 39, 327 A.2d 834, 837, (1974) (plaintiff must prove allegedly objectionable fence was erected solely for the avowed purpose of damaging the abutting neighbor and not for the advantage of the person who constructed the fence) ; Schorck v. Epperson, 74 Wyo. 286, 287-88, 287 P.2d 467 (1955) (doctrine of private nuisance founded *244on maxim that no one should have a legal right to make a malicious use of his property for no benefit to himself but merely to injure another). Accord Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 661, 93 S. 652 (1922); Green v. Schick, 194 Okla. 491, 492, 153 P.2d 821 (1944). See also Comment, Obstruction of Sunlight as a Private Nuisance, 65 Calif. L. Rev. 94, 99-102 (1977) (“the ironclad rule has been that the obstruction of a neighbor’s light and air is not a nuisance if it serves any useful purpose”). Id. at 101 (emphasis in original). Courts have likewise refused to limit interference with television reception and other broadcast signals. The People ex rel. Hoogasian v. Sears, Roebuck and Co., 52 Ill. 2d 301, 305, 287 N.E.2d 677 (1972), cert. denied, 409 U.S. 1001. Clearly, the spite fence cases, as their name implies, require malice which is not claimed in this case.

The majority then concludes that this court’s past reluctance to extend protection to a landowner’s access to sunlight beyond the spite fence cases is based on obsolete policies which have lost their vigor over the course of the years. Supra, at 237. The three obsolete policies cited by the majority are: (1) Right of landowners to use their property as they desire as long as no physical damage is done to a neighbor; (2) In the past, sunlight was valued only for aesthetic value, not a source of energy; and (3) Society has a significant interest in not impeding land development. Supra, at 235. See Comment, Obstruction of Sunlight as a Private Nuisance, supra at 105-12. The majority has failed to convince me that these policies are obsolete.

It is a fundamental principle of law that a “landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” United States v. Causby, 328 U.S. 256, 264 (1946) ; In Re Honolulu Rapid Transit Co., 54 Hawaii 402, 408, 507 P.2d 755 (1973) ; Granberry v. Jones, et al., 188 Tenn. 51, 54-55, 216 S.W.2d 721 (1949). As stated in *245the frequently cited and followed case of Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. Dist. Ct. App. 1959), cert. denied, 117 So. 2d 842 (Fla. 1960) :

“There being, then, no legal right to the free flow of light and air from the adjoining land, it is universally heid that where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut alienum non laedas, even though it causes injury to another by cutting off the light and air and interfering with the view that would otherwise be available over adjoining land in its natural state, regardless of the fact that the structure may have been erected partly for spite.” Id. at 359 (emphasis in original).

See Venuto v. Owens-Corning Fiberglas Corp., 22 Cal. App. 3d 116, 127, 99 Cal. Rptr. 350, 357 (1971). I firmly believe that a landowner’s right to use his property within the limits of ordinances, statutes, and restrictions of record where such use is necessary to serve his legitimate needs is a fundamental precept of a free society which this court should strive to uphold.

As one commentator has suggested:

“It is fashionable to dismiss such values as deriving from a bygone era in which people valued development as a ‘goal in itself,’ but current market prices for real estate, and more particularly the premiums paid for land whose zoning permits intensive use, suggest that people still place very high values on such rights.”

Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. 430, 443 (1979) (footnote omitted). Cf. Goble, Solar Access and Property Rights: Reply to a “Maverick” Analysis, 12 Conn. L. Rev. 270 (1980).

The majority cites two zoning cases, Village of Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), and Just v. Marinette County, 56 Wis. 2d 7, 201 N.W.2d 761 *246(1972), to support the conclusion that society has increasingly regulated private land use in the name of public welfare. Supra, at 236. The cases involving the use of police power and eminent domain are clearly distinguishable from the present situation as they relate to interference with a private right solely for the public health, safety, morals, or welfare. In the instant case, we are dealing with an action which seeks to restrict the defendant’s private right to use his property, notwithstanding a complete lack of notice of restriction to the defendant and the defendant’s compliance with applicable ordinances and statutes. The plaintiff who knew of the potential problem before the defendant acquired the land seeks to impose such use restriction to accommodate his personal, private benefit — a benefit which could have been accommodated by the plaintiff locating his home in a different place on his property or by acquiring the land in question when it was for sale prior to its acquisition by the defendant.

1 know of no cases repudiating policies favoring the right of a landowner to use his property as he lawfully desires or which declare such policies are “no longer fully accepted or applicable” in this context. Supra, at 236.2 The right of a property owner to lawful enjoyment of his property should be vigorously protected, particularly in *247those cases where the adjacent property owner could have insulated himself from the alleged problem by acquiring the land as a defense to the potential problem or by provident use of his own property.

The majority concludes that sunlight has not heretofore been accorded the status of a source of energy, and consequently it has taken on a new significance in recent years. Solar energy for home heating is at this time sparingly used and of questionable economic value because solar collectors are not mass produced, and consequently, they are very costly. Their limited efficiency may explain the lack of production.

Regarding the third policy the majority apparently believes is obsolete (that society has a significant interest in not restricting land development), it cites State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974). I concede the law may be tending to recognize the value of aesthetics over increased volume development and that an individual may not use his land in such a way as to harm the ‘public. The instant case, however, deals with a private benefit. I note that this court in Deetz stated: “The reasonable use rule retains ... a policy of favoring land improvement and development.” Id. at 20. See also id. at 15. Accord Moritz v. Buglewicz, 187 Neb. 819, 194 N.W.2d 215 (1972). I find it significant that community planners are dealing with this country’s continued population growth and building revitalization where “[t]he number of households is expected to reach almost 100 million by the end of the decade; that would be 34 percent higher than the number in 1970.” F. Strom, 1981 Zoning and, Planning Law Handbook, sec. 22.02 [8], 396 (1981). It is clear that community planners are acutely aware of the present housing shortages, particularly among those two groups with limited financial resources, the young and the elderly. Id. While the majority’s policy arguments may be directed to a cause of action for *248public nuisance, we are presented with a private nuisance case which I believe is distinguishable in this regard.3

I would submit that any policy decisions in this area are best left for the legislature. “What is ‘desirable’ or ‘advisable’ or ‘ought to be’ is a question of policy, not a question of fact. What is ‘necessary’ or what is ‘in the best interest’ is not a fact and its determination by the judiciary is an exercise of legislative power when each involves political considerations.” In re City of Beloit, 37 Wis. 2d 637, 644, 155 N.W.2d 633 (1968). See generally Holifield v. Setco Industries, Inc., 42 Wis. 2d 750, 758, 168 N.W.2d 177 (1969) ; Comment, Solar Rights: Guaranteeing a Place in the Sun, 57 Or. L. Rev. 94, 126-27 (1977) (litigation is a slow, costly, and uncertain method of reform). I would concur with these observations of the trial judge: “While temptation lingers for the court to declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.”

*249The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational.

Chapter 354, Laws of 1981, sec. 66.032, provides specific conditions for solar access permits. In part that section provides for impermissible interference with solar collectors within specific limitations:

“66.032 Solar access permits. (1) . . .

“(f) ‘Impermissible interference’ means the blockage of solar energy from a collector surface or proposed collector surface for which a permit has been granted under this section during a collector use period if such blockage is by any structure or vegetation on property, an owner of which was notified under sub. (3)(b). ‘Impermissible interference’ does not include:

“1. Blockage by a narrow protrusion, including but not limited to a pole or wire, which does not substantially interfere with absorption of solar energy by a solar collector.

“2. Blockage by any structure constructed, under construction or for which a building permit has been applied for before the date the last notice is mailed or delivered under sub. (S)(b).

“3. Blockage by any vegetation planted before the date the last notice is mailed or delivered under sub. (3) (b) unless a municipality by ordinance under sub. (2) defines impermissible interference to include such vegetation.” (Emphasis added.)

Sec. 66.032(3) (b) provides for notice:

“ (3) Permit applications.

“(b) An agency shall determine if an application is satisfactorily completed and shall notify the applicant of its determination. If an applicant receives notice that *250an application has been satisfactorily completed, the applicant shall deliver by certified mail or by hand a notice to the owner of any property which the applicant proposes to be restricted by the permit under sub. (7). The applicant shall submit to the agency a copy of a signed receipt for every notice delivered under this paragraph. The agency shall supply the notice form. The information on the form may include, without limitation because of enumeration:

“1. The name and address of the applicant, and the address of the land upon which the solar collector is or will be located.

“2. That an application has been filed by the applicant.

“3. That the permit, if granted, may affect the rights of the notified owner to develop his or her property and to plant vegetation.

“4. The telephone number, address and office hours of the agency.

“5. That any person may request a hearing under sub. (4) within 30 days after receipt of the notice, and the address and procedure for filing the request.” (Emphasis added.)

This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area.

I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendant’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra, at 230-232. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with *251“entry,” “attack,” “penetration,” “hostile entrance,” “the incoming' or spread of something unusually hurtful.” Webster’s Third International Dictionary, 1188 (1966). Most of the nuisance cases arising under this definition involve noxious odors, smoke, blasting, flooding, or excessive light invading the plaintiff’s right to the use of enjoyment of his property. See Prosser, Law of Torts, sec. 89, 591-92 (4th ed. 1971) .4 See Williams, Solar Access and Property Rights: A Maverick Analysis, 11 Conn. L. Rev. at 441 (there are significant practical differences between dust and noise, on the one hand, and solar access blockage on the other). Clearly, an owner who merely builds his home in compliance with all building code and municipal regulations is not “invading” another’s right to the use and enjoyment of his property. To say so is to acknowledge that all construction may be an “invasion” because all construction has some restrictive impact on adjacent land. A “view,” for example, is modified by any construction simply because it is there.

In order for a nuisance to be actionable in the instant case, the defendant’s conduct must be “intentional and unreasonable.”5 It is impossible for me to accept the majority’s conclusion that Mr. Maretti, in lawfully seeking to construct his home, may be intentionally and unreasonably interfering with the plaintiff’s access to sunlight. In addressing the “unreasonableness” component of the actor’s conduct, it is important to note that *252“ [t] here is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.” Restatement (Second) of Torts sec. 821F (1979). The comments to the Restatement further reveal that “[if] normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” Id. Comment d.6 See Bie v. Ingersoll, 27 Wis. 2d 490, 493, 135 N.W.2d 250(1965) ; Belmar Drive-In Theatre Co. v. The Illinois State Toll Highway Commission et al., 34 Ill. 2d 544, 547-49, 216 N.E.2d 788 (1966).

I conclude that plaintiff’s solar heating system is an unusually sensitive use. In other words, the defendant’s proposed construction of his home, under ordinary circumstances, would not interfere with the use and enjoyment of the usual person’s property. See W. Prosser, supra, sec. 87 at 578-79. “The plaintiff cannot, by devoting his own,land to an unusually sensitive use, such *253as a drive-in motion picture theater easily affected by light, make a nuisance out of conduct of the adjoining defendant which would otherwise be harmless.” Id. at 579 (footnote omitted).7

Looking solely at the defendant’s conduct, the circuit court concluded that the defendant’s construction of a house did not create a cause of action for nuisance because the defendant’s proposed home was in conformity with zoning regulations, building codes, deed restrictions, as well as the fact that the defendant’s use of the land to build his home was reasonable. The majority, however, cites Bie v. Ingersoll, supra, for the proposition that compliance with the law is not the controlling factor in evaluating a nuisance claim. I note that Bie involved the operation of an asphalt plant from which dust and odors permeated the plaintiff’s adjoining residence. The defendants asserted that, because the property occupied by the asphalt plant was zoned for industrial use, the plant could not constitute a nuisance. This court concluded that the zoning classification was not the controlling factor. “It is rather ‘the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance.’ ” 27 Wis. 2d at 495. The Bie case is clearly distinguishable from the case at bar. Here, *254the defendant seeks to build his home in compliance with all existing laws, and it will have no “peculiar nature.” As I read the Bie case, the negative implication from its facts is that a business which does not emit dust or odors (i.e., which has no peculiar nature) and which is in conformity with zoning regulations is not a private nuisance. I would hold under the facts of the instant case that the defendant’s conduct is not unreasonable per se, and consequently, a nuisance cause of action cannot stand.

I further believe that the majority’s conclusion that a cause of action exists in this case thwarts the very foundation of property law. Property law encompasses a system of filing and notice in a place for public records to provide prospective purchasers with any limitations on their use of the property. Such a notice is not alleged by the plaintiff. Only as a result of the majority’s decision did Mr. Maretti discover that a legitimate action exists which would require him to defend the design and location of his home against a nuisance suit, notwithstanding the fact that he located and began to build his house within the applicable building, municipal, and deed restrictions.

Obviously, the legislature was cognizant of the importance of notice. In Chapter 354, Laws of 1981, secs. 66.032(5) and (6) deal with notice to an adjoining landowner :

“(5) Permit grant, (a) The agency shall grant a permit if the agency determines that:

“1. The granting of a permit will not unreasonably interfere with the orderly land use and development plans of the municipality;

“2. No person has demonstrated that she or he has present plans to build a structure that would create an impermissible interference by showing that she or he has applied for a building permit prior to receipt of a notice under sub. (3) (b), has expended at least $500 on planning or designing such a structure or by submitting any other credible evidence that she or he has made substan*255tial progress toward planning or constructing a structure that would create an impermissible interference; and

“3. The benefits to the applicant and the public will exceed any burdens.

“ (b) An agency may grant a permit subject to any condition or exemption the agency deems necessary to minimize the possibility that the future development of nearby property will create an impermissible interference or to minimize any other burden on any person affected by granting the permit. Such conditions or exemptions may include but are not limited to restrictions on the location of the collector and requirements for the compensation of persons affected by the granting of the permit.

“(6) Record op permit. If an agency grants a permit:

“(a) The agency shall specify the property restricted by the permit under sub. (7) and shall prepare notice of the granting of the permit. The notice shall include the identification required under s. 706.05(2) (c) for the owner and the property upon which the solar collector is or will be located and for any owner and property restricted by the permit under sub. (7), and shall indicate that the property may not be developed and vegetation may not be planted on the property so as to create an impermissible interference with the solar collector which is the subject of the permit unless the permit affecting the property is terminated under sub. (9) or unless an agreement affecting the property is filed under sub. (10).

“(b) The applicant shall record with the register of deeds of the county in which the property is located the notice under par. (a) for each property specified under par. (a) and for the property upon which the solar collector is or will be located.”

In recognizing this common law cause of action, this court’s decision is in direct conflict with the 1981 legislative provisions for the granting of solar access permits. In a municipality which enacts the ordinance in conformity with the statute, neighbors know their respective rights. Under the majority decision, in a municipality which does not enact the ordinance, a common law cause of action for nuisance exists without any defined rights.

*256I believe the facts of the instant controversy present the classic case of the owner of a solar collector who fails to take any action to protect his investment. There is nothing in the record to indicate that Mr. Prah disclosed his situation to Mr. Maretti prior to Maretti’s purchase of the lot or attempted to secure protection for his solar collector prior to Maretti’s submission of his building plans to the architectural committee. Such inaction should be considered a significant factor in determining whether a cause of action exists.

The majority’s failure to recognize the need for notice may perpetuate a vicious cycle. Maretti may feel compelled to sell his lot because of Prah’s solar collector’s interference with his plans to build his family home. If so, Maretti will not be obliged to inform prospective purchasers of the problem. Certainly, such information will reduce the value of his land. If the presence of collectors is sufficient notice, it cannot be said that the seller of the lot has a duty to disclose information peculiarly within his knowledge. I do not believe that an adjacent lot owner should be obliged to experience the substantial economic loss resulting from the lot being rendered un-buildable by the contour of the land as it relates to the location and design of the adjoining home using solar collectors.8

I am troubled by the majority’s apparent retrospective application of its decision. I note that the court in Deetz saw the wisdom and fairness in rendering a prospective decision. 66 Wis. 2d at 24. Surely, a decision such as this *257should be accorded prospective status. Creating the cause of action after the fact results in such unfair surprise and hardship to property owners such as Maretti.

Because I do not believe that the facts of the present case give rise to a cause of action for private nuisance, I dissent.