POWELL, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

424 U.S. 507

Hudgens v. National Labor Relations Board

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

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"]407 U.S. 551 (1972), did not overrule 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. ^[n1] I now agree [p524] with 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. ^[n2]

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.

1. In his dissent in Logan Valley, Mr. Justice Black stated that

Marsh was never intended to apply to this kind of situation. . . . [T]he basis on which the Marsh decision rested was that the property involved encompassed an area that, for all practical purposes, had been turned into a town; the area had all the attributes of a town and was exactly like any other town in Alabama. I can find very little resemblance between the shopping center involved in this case and Chickasaw, Alabama.

391 U.S. at 330, 331.

2. The editorial "we" above is directed primarily to myself as the author of the Court's opinion in Lloyd Corp.