CRS Annotated Constitution

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Quasi–Public Places.—The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses or other property to those wishing to communicate about a particular topic.115 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,116 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, “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.”117 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.

First, in Food Employees Union v. Logan Valley Plaza,118 the Court held constitutionally protected the picketing of a store located in a shopping center by a union objecting to the store’s employment of nonunion labor. Finding that the shopping center was[p.1172]the functional equivalent of the business district involved in Marsh, the Court announced there was “no reason why access to a business district in a company town for the purpose of exercising First Amendment rights should be constitutionally required, while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the ‘business district’ is not under the same ownership.”119 [T]he State,” said Justice Marshall, “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.”120 The Court observed that it would have been hazardous to attempt to distribute literature at the entrances to the center and it reserved for future decision “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.”121

Four years later, the Court answered the reserved question in the negative.122 Several members of an antiwar group had attempted to distribute leaflets on the mall of a large shopping center, calling on the public to attend a protest meeting. Center guards invoked a trespass law against them, and the Court held they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it invited the public in specifically to carry on business with those stores located in the center. Plaintiffs’ leafleting, not directed to any store or to the customers qua customers of any of the stores, was unrelated to any activity in the center. Unlike the situation in Logan Valley Plaza, there were reasonable alternatives by which plaintiffs could reach those who used the center. Thus, in the absence of a relationship between the purpose of the expressive activity and the business of the shopping center, the property rights of the center owner will overbalance the expressive rights to persons who would use their property for communicative purposes.

Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.123 Suburban malls may be the[p.1173]“new town squares” in the view of sociologists, but they are private property in the eye of the law. The ruling came in a case in which a union of employees engaged in an economic strike against one store in a shopping center was barred from picketing the store within the mall. The rights of employees in such a situation are generally to be governed by federal labor laws124 rather than the First Amendment, although there is also the possibility that state constitutional provisions may be interpreted more expansively by state courts to protect some kinds of public issue picketing in shopping centers and similar places.125 Henceforth, only when private property “‘has taken on all the attributes of a town”’ is it to be treated as a public forum.126

Picketing and Boycotts by Labor Unions.—Though “logically relevant” to what might be called “public issue” picketing, the cases dealing with the invocation of economic pressures by labor unions are set apart by different “economic and social interests.”127 Therefore, these cases are dealt with separately here. It was, however, in a labor case that the Court first held picketing to be entitled to First Amendment protection.128 Striking down a flat prohibition on picketing to influence or induce someone to do something, the Court said: “In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution . . . .

“[T]he group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no oppor[p.1174]tunity to test the merits of ideas by competition for acceptance in the market of public opinion.”129 Peaceful picketing in a situation in which violence had occurred and was continuing, however, was held proscribable.130 In the absence of violence, the Court continued to find picketing protected,131 but there soon was decided a class of cases in which the Court sustained injunctions against peaceful picketing in the course of a labor controversy when such picketing was counter to valid state policies in a domain open to state regulation.132 These cases proceeded upon a distinction drawn by Justice Douglas. “Picketing by an organized group is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated. Hence those aspects of picketing make it the subject of restrictive regulations.”133 The apparent culmination of this course of decision was the Vogt case in which Justice Frankfurter broadly rationalized all the cases and derived the rule that “a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.”134 There the matters rests, although there is some indication that Thornhill stands for something more than that a State may not enforce a blanket prohibition on picketing.135


115 In Garner v. Louisiana, 368 U.S. 157, 185, 201–07 (1961) , Justice Harlan, concurring, would have reversed breach of the peace convictions of “sit–in” demonstrators who conducted their “sit–in” at lunch counters of department stores. He asserted that the protesters were sitting at the lunch counters where they knew they would not be served in order to demonstrate that segregation at such counters existed. “Such a demonstration . . . is as much a part of the ‘free trade in ideas’ . . . as is verbal expression, more commonly thought of as ‘speech.”’ Conviction for breach of peace was void in the absence of a clear and present danger of disorder. The Justice would not, however protect “demonstrations conducted on private property over the objection of the owner . . . , just as it would surely not encompass verbal expression in a private home if the owner has not consented.” He had read the record to indicate that the demonstrators were invitees in the stores and that they had never been asked to leave by the owners or managers. See also Frisby v. Schultz, 487 U.S. 474 (1988) (government may protect residential privacy by prohibiting altogether picketing that targets a single residence).
116 326 U.S. 501 (1946) .
117 Id. at 506.
118 Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968) .
119 Id. at 319. Justices Black, Harlan, and White dissented. Id. at 327, 333, 337.
120 Id. at 319–20.
121 Id. at 320 n.9.
122 Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) .
123 Hudgens v. NLRB, 424 U.S. 507 (1976) . Justice Stewart’s opinion for the Court asserted that Logan Valley had in fact been overruled by Lloyd Corp., id. at 517–18, but Justice Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, id. at 523.
124 But see Sears, Roebuck & Co. v. Carpenters, 436S. U.S. 180 (1978).
125 In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) , the Court held that a state court interpretation of the state constitution to protect picketing in a privately owned shopping center did not deny the property owner any federal constitutional rights. But cf. Pacific Gas & Elec. v. Public Utilities Comm’n, 475 U.S. 1 (1986) , holding that a state may not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees, a majority of Justices distinguishing PruneYard as not involving such forced association with others’ beliefs.
126 Hudgens v. NLRB, 424 U.S. 507, 516–17 (1976) (quoting Justice Black’s dissent in Logan Valley Plaza, 391 U.S. 308, 332–33 (1968) .
127 Niemotko v. Maryland, 340 U.S. 268, 276 (1951) (Justice Frankfurter concurring).
128 Thornhill v. Alabama, 310 U.S. 88, 102, 104–05 (1940) . Picketing as an aspect of communication was recognized in Senn v. Tile Layers Union, 301 U.S. 468 (1937) .
129 See also Carlson v. California, 310 U.S. 106 (1940) . In AFL v. Swing, 312 U.S. 321 (1941) , the Court held unconstitutional an injunction against peaceful picketing based on a State’s common–law policy against picketing in the absence of an immediate dispute between employer and employee.
130 Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941) .
131 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942) ; Carpenters & Joiners Union v. Ritter’s Cafe, 315 U.S. 722 (1942) ; Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943) .
132 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ; International Bhd. of Teamsters Union v. Hanke, 339 U.S. 470 (1950) ; Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950) ; Local Union, Journeymen v. Graham, 345 U.S. 192 (1953) .
133 Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776–77 (1942) (concurring opinion).
134 International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 (1957) . See also American Radio Ass’n v. Mobile Steamship Ass’n, 419 U.S. 215, 228–32 (1974) ; NLRB v. Retail Store Employees, 447 U.S. 607 (1980) ; International Longshoremens’ Ass’n v. Allied International, 456 U.S. 212, 226–27 (1982) .
135 Cf. the opinions in NLRB v. Fruit & Vegetable Packers, 377 U.S. 58 (1964) ; Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) (indicating that where violence is scattered through time and much of it was unconnected with the picketing, the State should proceed against the violence rather than the picketing).
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