Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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.1 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,2 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.” 3 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,4 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 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.” 5 “[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.” 6 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.” 7
Four years later, the Court answered the reserved question in the negative.8 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 that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to conduct 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 to communicate.
Then, the Court formally overruled Logan Valley Plaza, holding that shopping centers are not functionally equivalent to the company town involved in Marsh.9 Suburban malls may be the “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 laws10 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.11 Henceforth, only when private property “'has taken on all the attributes of a town’” is it to be treated as a public forum.12
- 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).
- 326 U.S. 501 (1946).
- 326 U.S. at 506.
- Amalgamated Food Emps. Union v. Logan Valley Plaza, 391 U.S. 308 (1968).
- 391 U.S. at 319. Justices Black, Harlan, and White dissented. Id. at 327, 333, 337.
- 391 U.S. at 319–20.
- 391 U.S. at 320 n.9.
- Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
- 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., 424 U.S. at 517–18, but Justice Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, id. at 523.
- But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180 (1978).
- 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 Utils. 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).
- 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)).