Cite as: 527 U. S. 666 (1999)
Syllabus
business interests qualifies as a protected property right. As to the first: The hallmark of a constitutionally protected property interest is the right to exclude others. The Lanham Act's false-advertising provisions bear no relationship to any right to exclude; and Florida Prepaid's alleged misrepresentation concerning its own products intruded upon no interest over which petitioner had exclusive dominion. As to the second asserted property interest: While a business's assets are property, and any state taking of those assets is a "deprivation," business in the sense of the activity of doing business or of making a profit is not property at all—and it is only that which is impinged upon by a competitor's false advertising about its own product. Pp. 672-675.
(b) Florida's sovereign immunity was not voluntarily waived by its activities in interstate commerce. Generally, waiver occurs when a State voluntarily invokes, or clearly declares that it intends to submit itself to, the jurisdiction of the federal courts. Petitioner and the United States maintain that an implied or constructive waiver is possible when Congress provides unambiguously that a State will be subject to private suit if it engages in certain federally regulated conduct and the State voluntarily elects to engage in that conduct. They rely on this Court's decision in Parden, supra, which held that the Federal Employers' Liability Act authorized private suit against States operating railroads by virtue of its general provision permitting suit against common carriers engaged in interstate commerce. This Court has never applied Parden's holding to another statute, and in fact has narrowed the case in every subsequent opinion in which it has been under consideration. Even when supplemented by a requirement of unambiguous statement of congressional intent to subject the States to suit, Parden cannot be squared with this Court's cases requiring that a State's express waiver of sovereign immunity be unequivocal, see, e. g., Great Northern Life Ins. Co. v. Read, 322 U. S. 47, and is also inconsistent with the Court's recent decision in Seminole Tribe of Fla. v. Florida, 517 U. S. 44. Nor is it relevant that the asserted basis for constructive waiver is conduct by the State that is undertaken for profit, that is traditionally performed by private entities, and that otherwise resembles the behavior of market participants. Whatever may remain of this Court's decision in Parden is expressly overruled. Pp. 675-687.
131 F. 3d 353, affirmed.
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 691. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined, post, p. 693.
667
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