Respondent Weis Markets owns and operates a supermarket in a
large shopping center complex owned by respondent Logan Valley
Plaza. In front of Weis' building is a covered porch and a parcel
pickup zone. Members of petitioner union picketed Weis' store,
confining the picketing almost entirely to the parcel pickup zone
and the portion of the parking area adjacent thereto. The picketing
was peaceful, with some sporadic and infrequent congestion of the
parcel pickup area. A Pennsylvania Court of Common Pleas enjoined
"picketing and trespassing upon . . . the [Weis] storeroom, porch
and parcel pick-up area . . . [and] the [Logan] parking area," thus
preventing picketing inside the shopping center. That court held
the injunction justified in order to protect respondents' property
rights and because the picketing was unlawfully aimed at coercing
Weis to compel its employees to join a union. The Pennsylvania
Supreme Court affirmed the issuance of the injunction on the sole
ground that petitioners' conduct constituted a trespass on
respondents' property.
Held:
1. Peaceful picketing carried on in a location open generally to
the public is, absent other factors involving the purpose or the
manner of the picketing, protected by the First Amendment. Pp.
391 U. S.
313-315.
2. Although there may be regulation of the manner in which
handbilling, or picketing, is carried out, that does not mean that
either can be barred under all circumstances on publicly owned
property simply by recourse to traditional concepts of property law
concerning the incidents of ownership of real property. Pp.
391 U. S.
315-316.
3. Since 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. 501,
326 U. S. 508,
the State may not delegate the power, through the use of trespass
laws, wholly to exclude those members of the public wishing to
exercise their First Amendment rights on the premises in a
manner
Page 391 U. S. 309
and for a purpose generally consonant with the use to which the
property is actually put. Pp.
391 U. S.
316-325.
425 Pa. 382, 227 A.2d 874, reversed and remanded.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
This case presents the question whether peaceful picketing of a
business enterprise located within a shopping center can be
enjoined on the ground that it constitutes an unconsented invasion
of the property rights of the owners of the land on which the
center is situated. We granted certiorari to consider petitioners'
contentions that the decisions of the state courts enjoining their
picketing as a trespass are violative of their rights under the
First and Fourteenth Amendments of the United States Constitution.
389 U.S. 911 (1967). [
Footnote
1] We reverse.
Page 391 U. S. 310
Logan Valley Plaza, Inc. (Logan), one of the two respondents
herein, owns a large, newly developed shopping center complex,
known as the Logan Valley Mall, located near the City of Altoona,
Pennsylvania. The shopping center is situated at the intersection
of Plank Road, which is to the east of the center, and Good's Lane,
which is to the south. Plank Road, also known as U.S. Route 220, is
a heavily traveled highway along which traffic moves at a fairly
high rate of speed. There are five entrance roads into the center,
three from Plank Road and two from Good's Lane. Aside from these
five entrances, the shopping center is totally separated from the
adjoining roads by earthen berms. The berms are 15 feet wide along
Good's Lane and 12 feet wide along Plank Road.
At the time of the events in this case, Logan Valley Mall was
occupied by two businesses, Weis Markets, Inc. (Weis), the other
respondent herein, and Sears, Roebuck and Co. (Sears), although
other enterprises were then expected and have since moved into the
center. Weis operates a supermarket and Sears operates both a
department store and an automobile service center. The Weis
property consists of the enclosed supermarket building, an open but
covered porch along the front of the building, and an approximately
five-foot-wide parcel pickup zone that runs 30 to 40 feet along the
porch. The porch functions as a sidewalk in front of the building
and the pickup zone is used as a temporary parking place for the
loading of purchases into customers' cars by Weis employees.
Page 391 U. S. 311
Between the Weis building and the highway berms are extensive
macadam parking lots with parking spaces and driveways lined off
thereon. These areas, to which Logan retains title, provide common
parking facilities for all the businesses in the shopping center.
The distance across the parking lots to the Weis store from the
entrances on Good's Lane is approximately 350 feet and from the
entrances on Plank Road approximately 400 to 500 feet. The entrance
on Plank Road farthest from the Weis property is the main entrance
to the shopping center as a whole and is regularly used by
customers of Weis. The entrance on Plank Road nearest to Weis is
almost exclusively used by patrons of the Sears automobile service
station into which it leads directly.
On December 8, 1965, Weis opened for business, employing a
wholly nonunion staff of employees. A few days after it opened for
business, Weis posted a sign on the exterior of its building
prohibiting trespassing or soliciting by anyone other than its
employees on its porch or parking lot. On December 17, 1965,
members of Amalgamated Food Employees Union, Local 590, began
picketing Weis. They carried signs stating that the Weis market was
nonunion and that its employees were not "receiving union wages or
other union benefits." The pickets did not include any employees of
Weis, but rather were all employees of competitors of Weis. The
picketing continued until December 27, during which time the number
of pickets varied between four and 13 and averaged around six. The
picketing was carried out almost entirely in the parcel pickup area
and that portion of the parking lot immediately adjacent thereto.
Although some congestion of the parcel pickup area occurred, such
congestion was sporadic and infrequent. [
Footnote 2]
Page 391 U. S. 312
The picketing was peaceful at all times and unaccompanied by
either threats or violence.
On December 27, Weis and Logan instituted an action in equity in
the Court of Common Pleas of Blair County, and that court
immediately issued an
ex parte order enjoining petitioners
[
Footnote 3] from,
inter
alia,
"[p]icketing and trespassing upon . . . the [Weis] storeroom,
porch and parcel pick-up area . . . [and] the [Logan] parking area
and all entrances and exits leading to said parking area. [
Footnote 4]"
The effect of this order was to require that all picketing be
carried on along the berms beside the public roads outside the
shopping center. Picketing continued along the berms and, in
addition, handbills asking the public not to patronize Weis because
it was nonunion were distributed, while petitioners contested the
validity of the
ex parte injunction. After an evidentiary
hearing, which resulted in the establishment of the facts set forth
above, the Court of Common Pleas continued indefinitely its
original
ex parte injunction without modification.
[
Footnote 5]
Page 391 U. S. 313
That court explicitly rejected petitioners' claim under the
First Amendment that they were entitled to picket within the
confines of the shopping center, and their contention that the suit
was within the primary jurisdiction of the NLRB. The trial judge
held that the injunction was justified both in order to protect
respondents' property rights and because the picketing was
unlawfully aimed at coercing Weis to compel its employees to join a
union. On appeal, the Pennsylvania Supreme Court, with three
Justices dissenting, affirmed the issuance of the injunction on the
sole ground that petitioners' conduct constituted a trespass on
respondents' property. [
Footnote
6]
We start from the premise that peaceful picketing carried on in
a location open generally to the public is, absent other factors
involving the purpose or manner of the picketing, protected by the
First Amendment.
Thornhill v. Alabama, 310 U. S.
88 (1940);
AFL v. Swing, 312 U.
S. 321 (1941);
Bakery Drivers Local 802 v.
Wohl, 315 U. S. 769
(1942);
Teamsters Local 795 v. Newell, 356 U.
S. 341 (1958). To be sure, this Court has noted that
picketing involves elements of both speech and conduct,
i.e., patrolling, and has indicated that, because of this
intermingling of protected and unprotected elements, picketing can
be subjected to controls that would not be constitutionally
permissible in the case of pure speech.
See, e.g., Hughes v.
Superior Court, 339 U. S. 460
(1950);
International Bro. of Teamsters v. Vogt, Inc.,
354 U. S. 284
(1957);
Cox v. Louisiana, 379 U.
S. 559 (1965);
Cameron v. Johnson, 390 U.
S. 611.
Page 391 U. S. 314
Nevertheless, no case decided by this Court can be found to
support the proposition that the nonspeech aspects of peaceful
picketing are so great a to render the provisions of the First
Amendment inapplicable to it altogether.
The majority of the cases from this Court relied on by
respondents, in support of their contention that picketing can be
subjected to a blanket prohibition in some instances by the States,
involved picketing that was found either to have been directed at
an illegal end,
e.g., Giboney v. Empire Storage & Ice
Co., 336 U. S. 490
(1949);
Building Service Employees Local 262 v. Gazzam,
339 U. S. 532
(1950);
Plumbers Local 10 v. Graham, 345 U.
S. 192 (1953) or to have been directed at coercing a
decision by an employer which, although, in itself, legal, could
validly be required by the State to be left to the employer's free
choice,
e.g., Carpenters Local 21 v. Ritter's Cafe,
315 U. S. 722
(1942) (secondary boycott);
Teamsters Local 309 v. Hanke,
339 U. S. 470
(1950) (self-employer union shop).
Compare NLRB v. Denver Bldg.
& Const. Trades Council, 341 U. S. 675
(1951), and
International Bro. of Electrical Workers v.
NLRB, 341 U. S. 694
(1951).
Those cases are not applicable here, because they all turned on
the purpose for which the picketing was carried on, not its
location. In this case, the Pennsylvania Supreme Court specifically
disavowed reliance on the finding of unlawful purpose on which the
trial court alternatively based its issuance of the injunction.
[
Footnote 7] It did emphasize
that the pickets were not employees of Weis and were discouraging
the public from patronizing
Page 391 U. S. 315
the Weis market. However, those facts could in no way provide a
constitutionally permissible independent basis for the decision,
because this Court has previously specifically held that picketing
of a business enterprise cannot be prohibited on the sole ground
that it is conducted by persons not employees whose purpose is to
discourage patronage of the business.
AFL v. Swing,
312 U. S. 321
(1941).
Compare Bakery Drivers Local 802 v. Wohl,
315 U. S. 769
(1942). Rather, those factors merely supported the court's finding
of a trespass by demonstrating that the picketing took place
without the consent, and against the will, of respondents.
The case squarely presents, therefore, the question whether
Pennsylvania's generally valid rules against trespass to private
property can be applied in these circumstances to bar petitioners
from the Weis and Logan premises. 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.
The fact that
Lovell, Schneider, and
Jamison
were concerned with handbilling, rather than picketing, is
immaterial so far as the question is solely one of right of access
for the purpose of expression of views. Handbilling, like
picketing, involves conduct other than speech,
Page 391 U. S. 316
namely, the physical presence of the person distributing
leaflets on municipal property. If title to municipal property is,
standing alone, an insufficient basis for prohibiting all entry
onto such property for the purpose of distributing printed matter,
it is likewise an insufficient basis for prohibiting all entry for
the purpose of carrying an informational placard. While the
patrolling involved in picketing may in some cases constitute an
interference with the use of public property greater than that
produced by handbilling, it is clear that, in other cases, the
converse may be true. Obviously, a few persons walking slowly back
and forth holding placards can be less obstructive of, for example,
a public sidewalk than numerous persons milling around handing out
leaflets. That the manner in which handbilling, or picketing, is
carried out may be regulated does not mean that either can be
barred under all circumstances on publicly owned property simply by
recourse to traditional concepts of property law concerning the
incidents of ownership of real property.
This Court has also held, in
Marsh v. Alabama,
326 U. S. 501
(1946), that, under some circumstances, property that is privately
owned may, at least for First Amendment purposes, be treated as
though it were publicly held. In
Marsh, the appellant, a
Jehovah's Witness, had undertaken to distribute religious
literature on a sidewalk in the business district of Chickasaw,
Alabama. Chickasaw, a so-called company town, was wholly owned by
the Gulf Shipbuilding Corporation.
"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. . . . [T]he 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
Page 391 U. S. 317
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."
326 U.S. at
326 U. S.
502-503.
The corporation had posted notices in the stores stating that
the premises were private property and that no solicitation of any
kind without written permission would be permitted. Appellant Marsh
was told that she must have a permit to distribute her literature,
and that a permit would not be granted to her. When she declared
that the company rule could not be utilized to prevent her from
exercising her constitutional rights under the First Amendment, she
was ordered to leave Chickasaw. She refused to do so, and was
arrested for violating Alabama's criminal trespass statute. In
reversing her conviction under the statute, this Court held that
the fact that the property from which appellant was sought to be
ejected for exercising her First Amendment rights was owned by a
private corporation, rather than the State, was an insufficient
basis to justify the infringement on appellant's right to free
expression occasioned thereby. Likewise the fact that appellant
Marsh was herself not a resident of the town was not considered
material.
The similarities between the business block in
Marsh
and the shopping center in the present case are striking. The
perimeter of Logan Valley Mall is a little less than 1.1 miles.
Inside the mall were situated, at the time of trial, two
substantial commercial enterprises with numerous
Page 391 U. S. 318
others soon to follow. [
Footnote
8] Immediately adjacent to the mall are two roads, one of which
is a heavily traveled state highway and from both of which lead
entrances directly into the mall. Adjoining the buildings in the
middle of the mall are sidewalks for the use of pedestrians going
to and from their cars and from building to building. In the
parking areas, roadways for the use of vehicular traffic entering
and leaving the mall are clearly marked out. The general public has
unrestricted access to the mall property. The shopping center here
is clearly the functional equivalent of the business district of
Chickasaw involved in
Marsh.
It is true that, unlike the corporation in
Marsh, the
respondents here do not own the surrounding residential property
and do not provide municipal services therefor. Presumably,
petitioners are free to canvass the neighborhood with their message
about the nonunion status of Weis Market, just as they have been
permitted by the state courts to picket on the berms outside the
mall. Thus, unlike the situation in
Marsh, there is no
power on respondents' part to have petitioners totally denied
access to the community for which the mall serves as a business
district. This fact, however, is not determinative. In
Marsh itself, the precise issue presented was whether the
appellant therein had the right, under the First Amendment, to pass
out leaflets in the business district, since there was no showing
made there that the corporate owner would have sought to prevent
the distribution of leaflets in the residential areas of the town.
While it is probable that the power to prevent trespass broadly
claimed in
Marsh would have encompassed such an incursion
into the residential areas, the specific facts in the case involved
access to property used for commercial purposes.
Page 391 U. S. 319
We see 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. Here, the roadways provided for
vehicular movement within the mall and the sidewalks leading from
building to building are the functional equivalents of the streets
and sidewalks of a normal municipal business district. The shopping
center premises are open to the public to the same extent as the
commercial center of a normal town. So far as can be determined,
the main distinction in practice between use by the public of the
Logan Valley Mall and of any other business district, were the
decisions of the state courts to stand, would be that those members
of the general public who sought to use the mall premises in a
manner contrary to the wishes of the respondents could be prevented
from so doing.
Such a power on the part of respondents would be, of course,
part and parcel of the rights traditionally associated with
ownership of private property. And it may well be that respondents'
ownership of the property here in question gives them various
rights, under the laws of Pennsylvania, to limit the use of that
property by members of the public in a manner that would not be
permissible were the property owned by a municipality. 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
326 U. S. 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
Page 391 U. S. 320
generally consonant with the use to which the property is
actually put. [
Footnote 9]
We do not hold that respondents, and at their behest the State,
are without power to make reasonable regulations governing the
exercise of First Amendment rights on their property. Certainly
their rights to make such regulations are at the very least
coextensive with the powers possessed by States and municipalities,
and recognized in many opinions of this Court, to control the use
of public property. Thus, where property is not ordinarily open to
the public, this Court has held that access to it for the purpose
of exercising First Amendment rights may be denied altogether.
See Adderley v. Florida, 385 U. S. 39
(1966). Even where municipal or state property is open to the
public generally, the exercise of First Amendment rights may be
regulated so as to prevent interference with the use to which the
property is ordinarily put by the State. Thus, we have upheld a
statute prohibiting picketing "in such a manner as to obstruct or
unreasonably interfere with free ingress or egress to and from any
. . . county . . . courthouses."
Cameron v. Johnson,
390 U. S. 611,
390 U. S. 616.
Likewise it has been indicated that persons could be
constitutionally prohibited from picketing "in or near" a court
"with the intent of interfering with, obstructing, or impeding the
administration of justice."
Cox v. Louisiana, 379 U.
S. 559 (1965).
In addition, the exercise of First Amendment rights may be
regulated where such exercise will unduly interfere
Page 391 U. S. 321
with the normal use of the public property by other members of
the public with an equal right of access to it. Thus, it has been
held that persons desiring to parade along city streets may be
required to secure a permit in order that municipal authorities be
able to limit the amount of interference with use of the sidewalks
by other members of the public by regulating the time, place, and
manner of the parade.
Cox v. New Hampshire, 312 U.
S. 569 (1941);
Poulos v. New Hampshire,
345 U. S. 395
(1953).
Compare Kovacs v. Cooper, 336 U. S.
77 (1949) (use of sound trucks making "loud and raucous
noises" on public streets may be prohibited).
However, none of these cases is applicable to the present case.
Because the Pennsylvania courts have held that "picketing and
trespassing" can be prohibited absolutely on respondents' premises,
we have no occasion to consider the extent to which respondents are
entitled to limit the location and manner of the picketing or the
number of pickets within the mall in order to prevent interference
with either access to the market building or vehicular use of the
parcel pickup area and parking lot. [
Footnote 10] Likewise,
Adderley furnishes no
support for the decision below, because it is clear that the public
has virtually unrestricted access to the property at issue here.
Respondents seek to defend the injunction they have obtained by
characterizing the requirement that picketing be carried on outside
the Logan Mall premises as a regulation, rather than a suppression
of it. Accepting
arguendo such a characterization, the
question remains, under the First Amendment, whether it is a
permissible regulation.
Petitioners' picketing was directed solely at one establishment
within the shopping center. The berms surrounding
Page 391 U. S. 322
the center are from 350 to 500 feet away from the Weis store.
All entry onto the mall premises by customers of Weis, so far as
appears, is by vehicle from the roads alongside which the berms
run. Thus, the placards bearing the message which petitioners seek
to communicate to patrons of Weis must be read by those to whom
they are directed either at a distance so great as to render them
virtually indecipherable where the Weis customers are already
within the mall -- or while the prospective reader is moving by car
from the roads onto the mall parking areas via the entrance ways
cut through the berms. In addition, the pickets are placed in some
danger by being forced to walk along heavily traveled roads along
which traffic moves constantly at rates of speed varying from
moderate to high. Likewise, the task of distributing handbills to
persons in moving automobiles is vastly greater (and more
hazardous) than it would be were petitioners permitted to pass them
out within the mall to pedestrians. [
Footnote 11] Finally, the requirement
Page 391 U. S. 323
that the picketing take place outside the shopping center
renders it very difficult for petitioners to limit its effect to
Weis only. [
Footnote 12]
It is therefore clear that the restraints on picketing and
trespassing approved by the Pennsylvania courts here substantially
hinder the communication of the ideas which petitioners seek to
express to the patrons of Weis. The fact that the nonspeech aspects
of petitioners' activity are also rendered less effective is not
particularly compelling in light of the absence of any showing, or
reliance by the state courts thereon, that the patrolling
accompanying the picketing sought to be carried on was
significantly interfering with the use to which the mall property
was being put by both respondents and the general public. [
Footnote 13] As we observed earlier,
the mere fact that speech is accompanied by conduct does not mean
that the speech can be suppressed under the guise of prohibiting
the conduct. Here it is perfectly clear that a prohibition against
trespass on the mall operates to bar all speech within the shopping
center to which respondents object. Yet this Court stated many
years ago,
"[O]ne is not to have the exercise of his liberty
Page 391 U. S. 324
of expression in appropriate places abridged on the plea that it
may be exercised in some other place."
Schneider v. State, 308 U. S. 147,
308 U. S. 163
(1939).
The sole justification offered for the substantial interference
with the effectiveness of petitioners' exercise of their First
Amendment rights to promulgate their views through handbilling and
picketing is respondents' claimed absolute right under state law to
prohibit any use of their property by others without their consent.
However, unlike a situation involving a person's home, no
meaningful claim to protection of a right of privacy can be
advanced by respondents here. Nor on the facts of the case can any
significant claim to protection of the normal business operation of
the property be raised. Naked title is essentially all that is at
issue.
The economic development of the United States in the last 20
years reinforces our opinion of the correctness of the approach
taken in
Marsh. The large-scale movement of this country's
population from the cities to the suburbs has been accompanied by
the advent of the suburban shopping center, typically a cluster of
individual retail units on a single large privately owned tract. It
has been estimated that, by the end of 1966, there were between
10,000 and 11,000 shopping centers in the United States and Canada,
accounting for approximately 37% of the total retail sales in those
two countries. [
Footnote
14]
These figures illustrate the substantial consequences for
workers seeking to challenge substandard working conditions,
consumers protesting shoddy or overpriced merchandise, and minority
groups seeking nondiscriminatory hiring policies that a contrary
decision here would have. Business enterprises located in downtown
areas would be subject to on-the-spot public criticism
Page 391 U. S. 325
for their practices, but businesses situated in the suburbs
could largely immunize themselves from similar criticism by
creating a
cordon sanitaire of parking lots around their
stores. Neither precedent nor policy compels a result so at
variance with the goal of free expression and communication that is
the heart of the First Amendment.
Therefore, as to the sufficiency of respondents' ownership of
the Logan Valley Mall premises as the sole support of the
injunction issued against petitioners, we simply repeat what was
said in
Marsh v. Alabama, 326 U.S. at
326 U. S.
506,
"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."
Logan Valley Mall is the functional equivalent of a "business
block," and, for First Amendment purposes, must be treated in
substantially the same manner. [
Footnote 15]
The judgment of the Supreme Court of Pennsylvania is reversed,
and the case is remanded for further proceedings not inconsistent
with this opinion.
It is so ordered.
[
Footnote 1]
Petitioners also contend (1) that the state courts were without
jurisdiction in this case because the controversy involves issues
that are within the exclusive jurisdiction of the National Labor
Relations Board,
see Meat Cutters Local 427 v. Fairlawn Meats,
Inc., 353 U. S. 20
(1957), and (2) that the picketing herein was protected as a
"concerted activit[y] for . . . mutual aid or protection" by § 7 of
the National Labor Relations Act, as amended, 49 Stat. 452, 29
U.S.C. § 157. Because of our disposition of the case, we do not
reach either contention.
[
Footnote 2]
Such congestion as there may have been was regulated by portions
of the order not here challenged.
See n 4,
infra.
[
Footnote 3]
In addition to Local 590, the petitioners herein are various
members and officials of the local who were engaged in the
picketing in one way or another.
[
Footnote 4]
The court also enjoined petitioners from blocking access by
anyone to respondents' premises, making any threats or using any
violence against customers, employees, and suppliers of Weis, and
physically interfering with the performance by Weis employees of
their duties. Petitioners make no challenge to these parts of the
order and it appears conceded that there has been no subsequent
picketing by petitioners in violation of these provisions. A
portion of the order also directs that no more than " pickets" be
used at any one time, but no number has ever been inserted into the
blank space and thus no limitation appears to have ever been
imposed.
[
Footnote 5]
We need not concern ourselves with deciding whether the
injunction is to be characterized as permanent or temporary. Since
the order provides in terms that it shall remain in effect until
further modification by the court and since there is no indication
that any modification affecting the issues presently before us will
be forth coming at any time in the near future, the judgment below
upholding the issuance of the injunction is clearly final for
purposes of review by this Court.
Compare Construction
Laborers' Local 438 v. Curry, 371 U.
S. 542 (1963).
[
Footnote 6]
Petitioners did not argue their preemption contentions in their
brief before the Pennsylvania Supreme Court and, accordingly, that
court does not appear to have passed on them.
[
Footnote 7]
Needless to say, had the Pennsylvania Supreme Court relied on
the purpose of the picketing and held it to be illegal, substantial
questions of preemption under the federal labor laws would have
been presented.
Compare Hotel Employees Local 255 v. Sax
Enterprises, Inc., 358 U. S. 270
(1959).
[
Footnote 8]
We are informed that, in addition to Weis and Sears, 15 other
commercial establishments are presently situated in the shopping
center.
[
Footnote 9]
The picketing carried on by petitioners was directed
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.
[
Footnote 10]
Compare Cox v. New Hampshire, supra; Cox v. Louisiana,
supra; Cameron v. Johnson, supra. It should be noted that
portions of the injunction, not contested here by petitioners, do
accomplish precisely such a regulation of the picketing.
See n 4,
supra.
[
Footnote 11]
Respondents argue that this case does not involve petitioners'
right to distribute handbills, notwithstanding that the provision
of the injunction prohibiting trespassing would seem to encompass
entry for the purpose of distributing leaflets, because the
petitioners were never engaged in handbilling within the mall.
Similarly respondents suggest that the only question concerning
picketing in this case relates to the picketing carried on in the
parcel pickup area, since almost all the picketing occurred there
prior to the issuance of the injunction. We reject the notion that
an injunction that, by its terms, clearly prohibits entry onto the
entire mall premises to picket should be given the reading
suggested by the respondents simply because it is broader than the
facts at the time required. The injunction is presently still
operative and no limiting construction has been placed on it by the
Pennsylvania courts. We see nothing to suggest that petitioners
could not be immediately cited for contempt if they violated the
plain terms of the injunction, whatever its relationship to their
previous conduct may be. As for handbilling, the opinion of the
trial court reveals that it was prepared to enjoin the handbilling
being carried on along the berms had respondents so requested.
Given that, the suggestion that the absolute prohibition against
petitioners' trespassing on the mall does not include handbilling
is likewise untenable. We do not treat petitioners' right to
distribute leaflets separately in this opinion simply because a
holding that petitioners are entitled to picket within the mall
obviously extends to handbilling as well and also because
petitioners themselves make no separate issue of it.
[
Footnote 12]
Petitioners point out that they could conceivably find
themselves charged with conducting an illegal secondary boycott if
they do not comply with the rules laid down by the NLRB and the
courts governing common situs picketing.
Compare Electrical
Workers Local 761 v. NLRB, 366 U. S. 667
(1961).
[
Footnote 13]
Moreover, the parts of the injunction not contested by
petitioners already went a long way towards preventing any such
interference.
See n 4,
supra.
[
Footnote 14]
Kaylin, A Profile of the Shopping Center Industry, Chain Store
Age, May 1966, at 17.
[
Footnote 15]
A number of state courts have reached similar conclusions as to
shopping centers.
See, e.g., Schwartz-Torrance Investment Corp.
v. Bakery Workers Local 31, 61 Cal. 2d
766, 394 P.2d 921 (1964),
cert. denied, 380 U.S. 906
(1965);
Moreland Corp. v. Retail Store Employees Local
444, 16 Wis.2d 499, 114 N.W.2d 876 (1962).
Compare
Amalgamated Clothing Workers v. Wonderland Shopping Center,
Inc., 370 Mich. 547,
122 N.W.2d
785 (1963) (affirming four-to-four a lower court holding that
handbilling in a shopping center is protected by the First
Amendment).
MR. JUSTICE DOUGLAS, concurring.
Picketing on the public walkways and parking area in
respondents' shopping center presents a totally different question
from an invasion of one's home or place
Page 391 U. S. 326
of business. While Logan Valley Mall is not dedicated to public
use to the degree of the "company town" in
Marsh v.
Alabama, 326 U. S. 501, it
is clear that respondents have opened the shopping center to public
uses. They hold out the mall as "public" for purposes of attracting
customers and facilitating delivery of merchandise. Picketing in
regard to labor conditions at the Weis Supermarket is directly
related to that shopping center business. Why should respondents be
permitted to avoid this incidence of carrying on a public business
in the name of "private property"? It is clear to me that they may
not, when the public activity sought to be prohibited involves
constitutionally protected expression respecting their
business.
Picketing is free speech
plus, the plus being physical
activity that may implicate traffic and related matters. Hence, the
latter aspects of picketing may be regulated.
See Bakery
Drivers Local v. Wohl, 315 U. S. 769,
315 U. S.
776-777 (concurring opinion);
Hughes v. Superior
Court, 339 U. S. 460,
339 U. S.
464-465;
Building Service Union v. Gazzam,
339 U. S. 532,
339 U. S.
536-537. Thus, the provisions of the injunction in this
case which prohibit the picketers from interfering with employees,
deliverymen, and customers are proper. It is said that the
picketers may be banished to the publicly owned berms, several
hundred feet from the target of their criticism. But that is to
make "private property" a sanctuary from which some members of the
public may be excluded merely because of the ideas they espouse.
Logan Valley Mall covers several acres and the number of picketers
at any time has been small. The courts of Pennsylvania are surely
capable of fashioning a decree that will ensure noninterference
with customers and employees, while enabling the union members to
assemble sufficiently close to Weis' market to make effective the
exercise of their First Amendment rights.
Page 391 U. S. 327
MR. JUSTICE BLACK, dissenting.
While I generally accept the factual background of this case
presented in the Court's opinion; I think it is important to focus
on just where this picketing which was enjoined by the state courts
was actually taking place. The following extract is taken from the
trial court's "Findings of Fact": [
Footnote 2/1]
"(7) . . ."
"(a) small groups of men and women wearing placards . . . walked
back and forth in front of the Weis supermarket, more particularly
in the pickup zone adjacent to the covered porch [emphasis
added];"
"(b) occasional picketing as above described has taken place
on the covered porch itself [emphasis added];"
Respondent Weis Markets, Inc., the owner-occupant of the
supermarket here being picketed, owns the real property on which it
constructed its store, porch, and parcel pickup zone. Respondent
Logan Valley Plaza, Inc., owns the other property in the shopping
center, including the large area which has been paved and marked
off as a general parking lot for customers of the shopping
center.
Anyone familiar with the operations of a modern-day supermarket
knows the importance of the so-called "pickup zone" -- an area
where the frequently numerous bags of groceries bought in the store
can be loaded conveniently into the customers' cars. The phenomenon
of the supermarket combined with widespread ownership of
automobiles and refrigeration facilities has made the purchase of
large quantities of groceries on a single
Page 391 U. S. 328
shopping trip a common occurrence in this country. And, in line
with this trend, the stores have had to furnish adequate loading
areas and facilities including in many instances, such as here for
example, extra employees to assist in loading customers' cars.
Respondent Weis' parcel pickup zone is fairly typical of the type
of loading area that has been provided: it is located alongside the
front of the store and is 4 to 5 feet wide, 30 to 40 feet in
length, and is marked off with bold double yellow lines; the words
"Parcel Pick-Up" are printed in large letters in the zone.
Testimony at trial showed that this pickup area was used
"strictly for customers to come and enter to pick up their
parcels which they had purchased. . . . They drive into this
particular area, and there the groceries are loaded into the cars
by [Weis employees] on . . . pick-up duty."
It seems clear to me, in light of the customary way that
supermarkets now must operate, that pickup zones are as much a part
of these stores as the inside counters where customers select their
goods or the check-out and bagging sections where the goods are
paid for. I cannot conceive how such a pickup zone, even by the
wildest stretching of
Marsh v. Alabama, 326 U.
S. 501, could ever be considered dedicated to the public
or to pickets. The very first section of the injunction issued by
the trial court in this case recognizes this fact, and is aimed
only at protecting this clearly private property from trespass by
the pickets. Thus, the order of the court separately enjoins
petitioners from:
"(a) Picketing and trespassing upon the private property of the
plaintiff Weis Markets, Inc., Store No. 40, located at Logan Valley
Mall, Altoona, Pennsylvania, including as such private property the
storeroom, porch and parcel pick-up area."
While there is language in the majority opinion which indicates
that the state courts may still regulate picketing
Page 391 U. S. 329
on respondent Weis' private property, [
Footnote 2/2] this is not sufficient. I think that this
Court should declare unequivocally that Section (a) of the lower
court's injunction is valid under the First Amendment, and that
petitioners cannot, under the guise of exercising First Amendment
rights, trespass on respondent Weis' private property for the
purpose of picketing. [
Footnote
2/3] It would be just as sensible for this Court to allow the
pickets to stand on the checkout counters, thus interfering with
customers who wish to pay for their goods, as it is to approve
picketing in the pickup zone which interferes with customers'
loading of their cars. At the very least, this wholly severable
part of the injunction aimed at the pickup zone should be affirmed
by the Court as valid under the First Amendment. And this is, in
fact, the really important part of the injunction, since, as the
Court's opinion admits, "[t]he picketing was carried out almost
entirely in the parcel pickup area and that portion of the parking
lot immediately adjacent thereto."
I would go further, however, and hold that the entire injunction
is valid. [
Footnote 2/4] With the
exception of the Weis
Page 391 U. S. 330
property mentioned above, the land on which this shopping center
(composed of only two stores at the time of trial and approximately
17 now) is located is owned by respondent Logan Valley Plaza, Inc.
Logan has improved its property by putting shops and parking spaces
thereon for the use of business customers. Now petitioners contend
that they can come onto Logan's property for the purpose of
picketing and refuse to leave when asked, and that Logan cannot use
state trespass laws to keep them out. The majority of this Court
affirms petitioners' contentions. But I cannot accept them, for I
believe that, whether this Court likes it or not, the Constitution
recognizes and supports the concept of private ownership of
property. The Fifth Amendment provides that
"[n]o person shall . . . be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation."
This means to me that there is no right to picket on the private
premises of another to try to convert the owner or others to the
views of the pickets. It also means, I think, that, if this Court
is going to arrogate to itself the power to act as the Government's
agent to take a part of Weis' property to give to the pickets for
their use, the Court should also award Weis just compensation for
the property taken.
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. The particular company town involved was Chickasaw, Alabama,
which, as we stated in the opinion, except for the fact
Page 391 U. S. 331
that it
"is owned by the Gulf Shipbuilding Corporation . . . 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."
326 U.S. at
326 U. S. 502.
Again toward the end of the opinion we emphasized that "the town of
Chickasaw does not function differently from any other town." 326
U.S. at
326 U. S. 508.
I think it is fair to say that the 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. 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." [
Footnote 2/5] Indeed, at the time this
injunction was issued, there were only two stores on the property.
Now there are supposed to be about 17, but they are all conceded to
be "commercial establishments." The remainder of the property in
the center has been laid out as a large parking lot with
individually marked parking spaces provided for business customers.
All I can say is that this sounds like a very strange "town" to
me.
The majority opinion recognizes the problem with trying to draw
too close an analogy to
Marsh, but faces a dilemma in that
Marsh is the only possible authority for treating
admittedly privately owned property the way the majority does.
Thus, the majority opinion concedes that "the respondents here do
not own the
Page 391 U. S. 332
surrounding residential property and do not provide municipal
services therefor." But that is not crucial, according to the
majority, since the petitioner in
Marsh was arrested in
the business district of Chickasaw. The majority opinion then
concludes that, since the appellant in
Marsh was given
access to the business district of a company town, the petitioners
in this case should be given access to the shopping center which
was functioning as a business district. But I respectfully suggest
that this reasoning completely misreads
Marsh and begs the
question. 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 326 U. S. 502.
I can 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.
In allowing the trespass here, the majority opinion indicates
that Weis and Logan invited the public to the shopping center's
parking lot. This statement is contrary to common sense. Of course,
there was an implicit invitation for customers of the adjacent
stores to come and use the marked off places for cars. But the
whole public was no more wanted there than they would be invited to
park free at a pay parking lot. Is a store owner or are several
owners together less entitled to have a parking lot set aside for
customers than other property owners? 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
Page 391 U. S. 333
ownership of property rests in this country. And, of course,
picketing, that is patrolling, is not free speech, and not
protected as such.
Giboney v. Empire Storage & Ice
Co., 336 U. S. 490;
Hughes v. Superior Court, 339 U.
S. 460. These pickets do have a constitutional right to
speak about Weis' refusal to hire union labor, but they do not have
a constitutional right to compel Weis to furnish them a place to do
so on its property.
Cox v. Louisiana, 379 U.
S. 559;
Adderley v. Florida, 385 U. S.
39;
Cameron v. Johnson, 390 U.
S. 611.
For these reasons I respectfully dissent.
[
Footnote 2/1]
This appears in the opinion of the Court of Common Pleas of
Blair County, Pennsylvania, dated February 14, 1966, and
unreported.
[
Footnote 2/2]
The majority opinion contains the following statement:
"Because the Pennsylvania courts have held that 'picketing and
trespassing' can be prohibited absolutely on respondents' premises,
we have no occasion to consider the extent to which respondents are
entitled to limit the location and manner of the picketing or the
number of pickets within the mall in order to prevent interference
with either access to the market building or vehicular use of the
parcel pickup area and parking lot."
Ante at
391 U. S. 321.
This statement ignores the fact that the injunction order of the
Common Pleas Court contains separately designated sections which
are easily divisible.
[
Footnote 2/3]
Since the majority opinion does not reach any issue under the
National Labor Relations Act, 29 U.S.C. § 141
et seq.,
neither do I. My declaration concerning the validity of the
injunction is concerned with the First and Fourteenth Amendments. I
do not find that the injunction, and most importantly § (a),
violates any First Amendment rights.
[
Footnote 2/4]
See 391
U.S. 308fn2/3|>n. 3,
supra.
[
Footnote 2/5]
In
Marsh v. Alabama, supra, a deputy of the Mobile
County Sheriff, paid by the company, served as the town's
policeman. We are not told whether the Logan Valley Plaza shopping
center had its own policeman.
MR. JUSTICE HARLAN, dissenting.
The petitioners argue for reversal of the decision below on two
separate grounds: first, that petitioners' picketing was protected
by the First Amendment from state injunctive interference of this
kind; second, that the Pennsylvania courts have strayed into a
sphere where the power of initial decision is reserved by federal
labor laws to the National Labor Relations Board. I think that, if
available, the second or "preemption" ground would plainly be a
preferable basis for decision. Because reliance on preemption would
invoke the authority of a federal statute through the
Constitution's Supremacy Clause, it would avoid interpretation of
the Constitution itself, which would be necessary if the case were
treated under the First Amendment.
See, e.g., Zschernig v.
Miller, 389 U. S. 429,
389 U. S. 443,
389 U. S.
444-445 (opinion of the writer concurring in the
result). Dependence on preemption would also assure that the Court
does not itself disrupt the statutory scheme of labor law
established by the Congress, a point to which I shall return.
On the merits, [
Footnote 3/1] it
seems clear from the facts stated by the Court,
see ante
at
391 U. S.
310-312, and from our past decisions
Page 391 U. S. 334
that the petitioners have a substantial preemption claim.
However, upon examination of the record, I have come reluctantly to
the conclusion that this Court is precluded from reaching the
merits of that question because of the petitioners' failure to
raise any such issue in the Pennsylvania Supreme Court. The rule
that, in cases coming from state courts, this Court may review only
those issues which were presented to the state court is not
discretionary, but jurisdictional. Section 1257 of Title 28, which
defines this Court's certiorari jurisdiction, states:
"Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court . . . [b]y writ of certiorari, . . . where any title,
right, privilege or immunity is specially set up or claimed under
the Constitution, treaties or statutes of . . . the United
States."
Since the Pennsylvania Supreme Court did not advert in its
majority opinion to the preemption issue, [
Footnote 3/2] it is necessary to determine whether that
question was "specially set up or claimed" within the meaning of §
1257. In deciding that question, it is relevant and usually
sufficient to ask whether the petitioners satisfied the state rules
governing presentation of issues.
See, e.g., Beck v.
Washington, 369 U. S. 541,
369 U. S.
549-554;
Wolfe v.
North
Page 391 U. S. 335
Carolina, 364 U. S. 177,
364 U. S. 195;
John v. Paullin, 231 U. S. 583,
231 U. S. 585.
[
Footnote 3/3] Rule 59 of the
Pennsylvania Supreme Court provides:
"The [appellant's] statement of the questions involved must set
forth each question separately, in the briefest and most general
terms. . . . This rule is to be considered in the highest degree
mandatory, admitting no exception; ordinarily no point will be
considered which is not thus set forth in or necessarily suggested
by the statement of questions involved."
The Pennsylvania Supreme Court has consistently held that it
will not consider points not presented in the manner prescribed by
this rule, and that such points are regarded as abandoned or
waived. [
Footnote 3/4] In this
case, the petitioners' statement of questions involved did not
refer to the possibility of federal preemption, [
Footnote 3/5] and, of course, the Pennsylvania
Supreme Court's majority opinion did not mention it either. A
similar rule of the Washington
Page 391 U. S. 336
Supreme Court was involved in
Beck v. Washington,
supra, and we held that, when a defendant has failed to comply
with such a rule
"the argument cannot be entertained here under an unbroken line
of precedent.
E.g., Ferguson v. Georgia, 365 U. S.
570,
365 U. S. 572 (1961);
Capital City Dairy Co. v. Ohio, 183 U. S.
238,
183 U. S. 248 (1902)."
369 U.S. at
369 U. S.
553-554. [
Footnote 3/6]
I am therefore led to conclude that we have no jurisdiction to
consider the question of preemption. [
Footnote 3/7]
Turning to the First Amendment question, I believe that, in the
circumstances, it is not an appropriate one for this Court to
decide. This controversy arose in the course of a labor union's
efforts to achieve labor goals by informational picketing. Although
no preemption question is properly before us, I do think that we
can take notice that this is an area in which Congress has enacted
detailed legislation,
see, e.g., 29 U.S.C. § 158(b)(7)(C),
and has set up an administrative agency to resolve such disputes in
the first instance. The reason why it was deemed necessary to
fashion the doctrine of preemption under the federal labor laws was
that it would be intolerably disruptive if this statutory scheme
were interpreted differently by state and federal courts.
See,
e.g., Garner v. Teamsters Union, 346 U.
S. 485,
346 U. S.
490-491;
San Diego Unions v. Garmon,
359 U. S. 236,
359 U. S.
242-245. It seems to me that a similar objection applies
to this Court's resolution of such disputes by resort to the
Page 391 U. S. 337
Constitution. For the establishment by this Court of a rigid
constitutional rule in a field where Congress has attempted to
strike a delicate balance between competing economic forces, and in
circumstances where we cannot know how the controversy would be
settled by Congress' chosen instrument, may also have a
considerable disruptive effect. I therefore believe that we should
exercise our discretion not to reach the First Amendment issue, and
that we should dismiss the writ as improvidently granted. Such a
disposition would not be unfair to the petitioners, since the
failure to bring the preemption question properly before us was
their own.
[
Footnote 3/1]
See, e.g., Construction Laborers v. Curry, 371 U.
S. 542,
371 U. S.
546-548;
Hotel Employees Local 255 v. Sax
Enterprises, Inc., 358 U. S. 270;
Youngdahl v. Rainfair, Inc., 355 U.
S. 131,
355 U. S. 139;
NLRB v. Babcock & Wilcox Co., 351 U.
S. 105,
351 U. S.
112-114;
NLRB v. Stowe Spinning Co.,
336 U. S. 226,
336 U. S.
229-232;
cf. Amalgamated Meat Cutters v. Fairlawn
Meats, Inc., 353 U. S. 20,
353 U. S. 24-25.
See also Marshall Field & Co., 98 N.L.R.B. 88, 93,
enforced as modified sub nom. Marshall Field & Co. v.
NLRB, 200 F.2d 375, 380.
[
Footnote 3/2]
Where the highest state court has actually ruled on a federal
question, this Court's concern with the proper raising of the
question in the state court disappears.
See, e.g., Raley v.
Ohio, 360 U. S. 423,
360 U. S. 436;
Whitney v. California, 274 U. S. 357,
274 U. S.
360-361;
Manhattan Life Ins. Co. v. Cohen,
234 U. S. 123,
234 U. S.
134.
[
Footnote 3/3]
The only circumstances in which a federal claim will be
entertained despite the petitioners' failure to raise it below in
the prescribed manner are when the State's rules do not afford a
reasonable opportunity for a hearing on the federal issue,
see,
e.g., Central Union Tel. Co. v. Edwardsville, 269 U.
S. 190,
269 U. S.
194-195, or are applied in a discriminatory fashion to
evade the federal claim,
see, e.g., Hartford Life Ins. Co. v.
Johnson, 249 U. S. 490,
249 U. S. 493.
No such allegation is made in this case.
[
Footnote 3/4]
See, e.g., Dunmore v. McMillan, 396 Pa. 472, 152 A.2d
708;
Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395;
Kerr
v. O'Donovan, 389 Pa. 614, 134 A.2d 213.
[
Footnote 3/5]
The petitioners stated that the question involved was:
"Did the lower court err in granting a Preliminary Injunction .
. . where in a suit in equity by the owner of a shopping center and
one of its tenants it is established that the appellant-union
peacefully picketed near tenant's building within the confines of
said shopping center; that no picketing efforts were directed
toward the shopping center or other tenants; that picketing efforts
were merely to inform the public of the labor dispute?"
[
Footnote 3/6]
See also Wolfe v. North Carolina, 364 U.
S. 177,
364 U. S. 195;
Parker v. Illinois, 333 U. S. 571;
CIO v. McAdory, 325 U. S. 472,
325 U. S.
477.
[
Footnote 3/7]
The petitioners contend that this Court has jurisdiction to
consider the preemption issue despite the petitioners' failure to
raise it below, because the question is one of "subject matter
jurisdiction." Although some implied support for this proposition
may be found in
Seaboard Air Line R. Co. v. Daniel,
333 U. S. 118,
333 U. S.
122-123, I am unable to perceive how the nature of the
federal question involved can affect the specific limitation on our
jurisdiction contained in 28 U.S.C. § 1257.
MR. JUSTICE WHITE, dissenting.
The reason why labor unions may normally picket a place of
business is that the picketing occurs on public streets which are
available to all members of the public for a variety of purposes
that include communication with other members of the public. The
employer businessman cannot interfere with the pickets'
communication because they have as much right to the sidewalk and
street as he does, and because the labor laws prevent such
interference under various circumstances; the Government may not
interfere on his behalf, absent obstruction, violence, or other
valid statutory justification, because the First Amendment forbids
official abridgment of the right of free speech.
In
Marsh v. Alabama, 326 U. S. 501
(1946), the company town was found to have all of the attributes of
a state-created municipality and the company was found effectively
to be exercising official power as a delegate of the State. In the
context of that case, the streets of the company town were as
available and as dedicated to pubic purposes as the streets of an
ordinary town. The company owner stood in the shoes of the State in
attempting to prevent the streets from being used as public streets
are normally used.
Page 391 U. S. 338
The situation here is starkly different. As MR. JUSTICE BLACK so
clearly shows, Logan Valley Plaza is not a town, but only a
collection of stores. In no sense are any parts of the shopping
center dedicated to the public for general purposes or the
occupants of the Plaza exercising official powers. The public is
invited to the premises, but only in order to do business with
those who maintain establishments there. The invitation is to shop
for the products which are sold. There is no general invitation to
use the parking lot, the pickup zone, or the sidewalk except as an
adjunct to shopping. No one is invited to use the parking lot as a
place to park his car while he goes elsewhere to work. The
driveways and lanes for auto traffic are not offered for use as
general thoroughfares leading from one public street to another.
Those driveways and parking spaces are not public streets, and thus
available for parades, public meetings, or other activities for
which public streets are used. It may be more convenient for cars
and trucks to cut through the shopping center to get from one place
to another, but surely the Court does not mean to say that the
public may use the shopping center property for this purpose. Even
if the Plaza has some aspects of "public" property, it is
nevertheless true that some public property is available for some
uses and not for others; some public property is neither designed
nor dedicated for use by pickets or for other communicative
activities.
E.g., Adderley v. Florida, 385 U. S.
39 (1966). The point is that whether Logan Valley Plaza
is public or private property, it is a place for shopping, and not
a place for picketing.
The most that can be said is that here the public was invited to
shop, that, except for their location in the shopping center
development, the stores would have fronted on public streets and
sidewalks, and that the shopping center occupied a large area. But
on this
Page 391 U. S. 339
premise the parking lot, sidewalks, and driveways would be
available for all those activities which are usually permitted on
public streets. It is said that Logan Valley Plaza is substantially
equivalent to a business block and must be treated as though each
store was bounded by a public street and a public sidewalk. This
rationale, which would immunize nonobstructive labor union
picketing, would also compel the shopping center to permit
picketing on its property for other communicative purposes, whether
the subject matter concerned a particular business establishment or
not. Nonobstructive handbilling for religious purposes, political
campaigning, protests against government policies -- the Court
would apparently place all of these activities carried out on Logan
Valley's property within the protection of the First Amendment,
although the activities may have no connection whatsoever with the
views of the Plaza's occupants or with the conduct of their
businesses.
Furthermore my Brother BLACK is surely correct in saying that,
if the invitation to the public is sufficient to permit
nonobstructive picketing on the sidewalks, in the pickup zone, or
in the parking area, only actual interference with customers or
employees should bar pickets from quietly entering the store and
marching around with their message on front and back.
It is not clear how the Court might draw a line between
"shopping centers" and other business establishments which have
sidewalks or parking on their own property. Any store invites the
patronage of members of the public interested in its products. I am
fearful that the Court's decision today will be a license for
pickets to leave the public streets and carry out their activities
on private property, as long as they are not obstructive. I do not
agree that, when the owner of private property invites the public
to do business with him he impliedly dedicates his property for
other uses as well. I do not think the
Page 391 U. S. 340
First Amendment, which bars only official interferences with
speech, has this reach. In
Marsh, the company ran an
entire town and the State was deemed to have devolve upon the
company the task of carrying out municipal functions. But here the
"streets" of Logan Valley Plaza are not like public streets; they
are not used as thoroughfares for general travel from point to
point, for general parking, for meetings, or for Easter
parades.
If it were shown that Congress has thought it necessary to
permit picketing on private property, either to further the
national labor policy under the Commerce Clause or to implement and
enforce the First Amendment, we would have quite a different case.
But that is not the basis on which the Court proceeds, and I
therefore dissent.