When striking members of respondent union picketed in front of
their employer's leased store located in petitioner's shopping
center, the shopping center's general manager threatened them with
arrest for criminal trespass if they did not depart, and they left.
The union then filed unfair labor practice charges against
petitioner, alleging that the threat constituted interference with
rights protected by § 7 of the National Labor Relations Act (NLRA).
The National Labor Relations Board (NLRB), concluding that the NLRA
had been violated, issued a cease and desist order against
petitioner, and the Court of Appeals enforced the order. Petitioner
and respondent union contend that the respective rights and
liabilities of the parties are to be decided under the criteria of
the NLRA alone, whereas the NLRB contends that such rights and
liabilities must be measured under a First Amendment standard.
Held:
1. Under the present state of the law, the constitutional
guarantee of free expression has no part to play in a case such as
this, and the pickets here did not have a First Amendment right to
enter the shopping center for the purpose of advertising their
strike against their employer.
Lloyd Corp. v. Tanner,
407 U. S. 551. Pp.
424 U. S.
512-521.
2. The rights and liabilities of the parties are dependent
exclusively upon the NLRA, under which it is the NLRB's task,
subject to judicial review, to resolve conflicts between § 7 rights
and private property rights and to seek accommodation of such
rights "with as little destruction of one as is consistent with the
maintenance of the other,"
NLRB v. Babcock & Wilcox
Co., 351 U. S. 105,
351 U. S. 112.
Hence, the case is remanded so that the NLRB may reconsider the
case under the NLRA's statutory criteria alone. Pp.
424 U. S.
521-523.
501 F.2d 161, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined.
Page 424 U. S. 508
POWELL, filed a concurring opinion, in which BURGER, C.J.,
joined,
post, p.
424 U. S. 523.
WHITE, J., filed an opinion concurring in the result,
post, p.
424 U. S. 524.
MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined,
post, p.
424 U. S. 525.
STEVENS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE STEWART delivered the opinion of the Court.
A group of labor union members who engaged in peaceful primary
picketing within the confines of a privately owned shopping center
were threatened by an agent of the owner with arrest for criminal
trespass if they did not depart. The question presented is whether
this threat violated the National Labor Relations Act, 49 Stat.
449, as amended 61 Stat. 136, 29 U.S.C. 151
et seq. The
National Labor Relations Board concluded that it did, 205 N.L.R.B.
628, and the Court of Appeals for the Fifth Circuit agreed. 501
F.2d 161. We granted certiorari because of the seemingly important
questions of federal law presented. 420 U.S. 971.
Page 424 U. S. 509
I
The petitioner, Scott Hudgens, is the owner of the North DeKalb
Shopping Center, located in suburban Atlanta, Ga. The center
consists of a single large building with an enclosed mall.
Surrounding the building is a parking area which can accommodate
2,640 automobiles. The shopping center houses 60 retail stores
leased to various businesses. One of the lessees is the Butler Shoe
Co. Most of the stores, including Butler's, can be entered only
from the interior mall.
In January, 1971, warehouse employees of the Butler Shoe Co.
went on strike to protest the company's failure to agree to demands
made by their union in contract negotiations. [
Footnote 1] The strikers decided to picket not
only Butler's warehouse, but its nine retail stores in the Atlanta
area as well, including the store in the North DeKalb Shopping
Center. On January 22, 1971, four of the striking warehouse
employees entered the center's enclosed mall carrying placards
which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315."
The general manager of the shopping center informed the employees
that they could not picket within the mall or on the parking lot
and threatened them with arrest if they did not leave. The
employees departed, but returned a short time later and began
picketing in an area of the mall immediately adjacent to the
entrances of the Butler store. After the picketing had continued
for approximately 30 minutes, the shopping center manager again
informed the pickets that, if they did not leave, they would be
arrested for trespassing. The pickets departed.
The union subsequently filed with the Board an unfair labor
practice charge against Hudgens, alleging interference with rights
protected by § 7 of the Act, 29
Page 424 U. S. 510
U.S.C. § 157. [
Footnote 2]
Relying on this Court's decision in
Food Employees v. Logan
Valley Plaza, 391 U. S. 308, the
Board entered a cease and desist order against Hudgens, reasoning
that, because the warehouse employees enjoyed a First Amendment
right to picket on the shopping center property, the owner's threat
of arrest violated § 8(a)(1) of the Act, 29 U.S.C. § 15,8(a)(1).
[
Footnote 3] Hudgens filed a
petition for review in the Court of Appeals for the Fifth Circuit.
Soon thereafter this Court decided
Lloyd Corp. v. Tanner,
407 U. S. 551, and
Central Hardware Co. v. NLRB, 407 U.
S. 539, and the Court of Appeals remanded the case to
the Board for reconsideration in light of those two decisions.
The Board, in turn, remanded to an Administrative Law Judge, who
made findings of fact, recommendations, and conclusions to the
effect that Hudgens had committed an unfair labor practice by
excluding the pickets.
Page 424 U. S. 511
This result was ostensibly reached under the statutory criteria
set forth in
NLRB v. Babcock & Wilcox Co.,
351 U. S. 105, a
case which held that union organizers who seek to solicit for union
membership may intrude on an employer's private property if no
alternative means exist for communicating with the employees. But
the Administrative Law Judge's opinion also relied on this Court's
constitutional decision in
Logan Valley for a "realistic
view of the facts." The Board agreed with the findings and
recommendations of the Administrative Law Judge, but departed
somewhat from his reasoning. It concluded that the pickets were
within the scope of Hudgens' invitation to members of the public to
do business at the shopping center, and that it was, therefore,
immaterial whether or not there existed an alternative means of
communicating with the customers and employees of the Butler store.
[
Footnote 4]
Hudgens again petitioned for review in the Court of Appeals for
the Fifth Circuit, and there the Board changed its tack and urged
that the case was controlled not by
Babcock & Wilcox,
but by
Republic Aviation Corp. v. NLRB, 324 U.
S. 793 a case which held that an employer commits an
unfair labor practice if he enforces a no-solicitation rule against
employees on his premises who are also union organizers, unless he
can prove that the rule is necessitated by special circumstances.
The Court of Appeals enforced the Board's cease and desist order,
but on the basis of yet another theory. While acknowledging that
the source of the pickets' rights was § 7 of the Act, the Court of
Appeals held that the competing constitutional and property right
considerations discussed in
Lloyd Corp. v. Tanner, supra,
"burde[n] the General Counsel with the duty to
Page 424 U. S. 512
prove that other locations less intrusive upon Hudgens' property
rights than picketing inside the mall were either unavailable or
ineffective," 501 F.2d at 169, and that the Board's General Counsel
had met that burden in this case.
In this Court, the petitioner Hudgens continues to urge that
Babcock & Wilcox Co. is the controlling precedent, and
that, under the criteria of that case, the judgment of the Court of
Appeals should be reversed. The respondent union agrees that a
statutory standard governs, but insists that, since the § 7
activity here was not organizational as in
Babcock, but
picketing in support of a lawful economic strike, an appropriate
accommodation of the competing interests must lead to an affirmance
of the Court of Appeals' judgment. The respondent Board now
contends that the conflict between employee picketing rights and
employer property rights in a case like this must be measured in
accord with the commands of the First Amendment, pursuant to the
Board's asserted understanding of
Lloyd Corp. v. Tanner,
supra, and that the judgment of the Court of Appeals should be
affirmed on the basis of that standard.
II
As the above recital discloses, the history of this litigation
has been a history of shifting positions on the part of the
litigants, the Board, and the Court of Appeal. It has been a
history, in short, of considerable confusion, engendered at least
in part by decisions of this Court that intervened during the
course of the litigation. In the present posture of the case, the
most basic question is whether the respective rights and
liabilities of the parties are to be decided under the criteria of
the National Labor Relations Act alone, under a First Amendment
standard, or under some combination of the two. It is to that
question, accordingly, that we now turn.
Page 424 U. S. 513
It is, of course, a commonplace that the constitutional
guarantee of free speech is a guarantee only against abridgment by
government, federal or state.
See Columbia Broadcasting System,
Inc. v. Democratic National Comm., 412 U. S.
94. Thus, while statutory or common law may in some
situations extend protection or provide redress against a private
corporation or person who seeks to abridge the free expression of
others, no such protection or redress is provided by the
Constitution itself.
This elementary proposition is little more than a truism. But
even truisms are not always unexceptionably true, and an exception
to this one was recognized almost 30 years ago in
Marsh v.
Alabama, 326 U. S. 501. In
Marsh, a Jehovah's Witness who had distributed literature
without a license on a sidewalk in Chickasaw, Ala., was convicted
of criminal trespass. Chickasaw was a so-called company town,
wholly owned by the Gulf Shipbuilding Corp. It was described in the
Court's opinion as follows:
"Except for [ownership by a private corporation] it 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. A deputy of the Mobile County Sheriff, paid by the
company, serves as the town's policeman. Merchants and service
establishments have rented the stores and business places on the
business block and the United States uses one of the places as a
post office from which six carriers deliver mail to the people of
Chickasaw and the adjacent area. The town and the surrounding
neighborhood, which can not be distinguished from the Gulf property
by anyone not familiar with the property lines, are thickly
Page 424 U. S. 514
settled, and according to all indications the 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 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."
Id. at
326 U. S.
502-503.
The Court pointed out that, if the "title" to Chickasaw had
"belonged not to a private but to a municipal corporation and
had appellant been arrested for violating a municipal ordinance
rather than a ruling by those appointed by the corporation to
manage a company town it would have been clear that appellant's
conviction must be reversed."
Id. at
326 U. S. 504.
Concluding that Gulf's "property interests" should not be allowed
to lead to a different result in Chickasaw, which did "not function
differently from any other town,"
id. at
326 U. S. 506
508, the Court invoked the First and Fourteenth Amendments to
reverse the appellant's conviction.
It was the
Marsh case that, in 1968 provided the
foundation for the Court's decision in
Amalgamated Food
Employees Union v. Logan Valley Plaza, 391 U.
S. 308. That case involved peaceful picketing within a
large
Page 424 U. S. 515
shopping center near Altoona, Pa. One of the tenants of the
shopping center was a retail store that employed a wholly nonunion
staff. Members of a local union picketed the store, carrying signs
proclaiming that it was nonunion and that its employees were not
receiving union wages or other union benefits. The picketing took
place on the shopping center's property in the immediate vicinity
of the store. A Pennsylvania court issued an injunction that
required all picketing to be confined to public areas outside the
shopping center, and the Supreme Court of Pennsylvania affirmed the
issuance of this injunction. This Court held that the doctrine of
the
Marsh case required reversal of that judgment.
The Court's opinion pointed out that the First and Fourteenth
Amendments would clearly have protected the picketing if it had
taken place on a public sidewalk:
"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."
391 U.S. at
391 U. S.
315.
The Court's opinion then reviewed the
Marsh case in
detail, emphasized the similarities between the business
Page 424 U. S. 516
block in Chickasaw, Ala., and the Logan Valley shopping center,
and unambiguously concluded:
"The shopping center here is clearly the functional equivalent
of the business district of Chickasaw involved in
Marsh."
391 U.S. at
391 U. S. 318.
Upon the basis of that conclusion, the Court held that the First
and Fourteenth Amendments required reversal of the judgment of the
Pennsylvania Supreme Court.
There were three dissenting opinions in the
Logan
Valley case, one of them by the author of the Court's opinion
in
Marsh, Mr. Justice Black. His disagreement with the
Court's reasoning was total:
"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. . . . 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.'"
391 U.S. at
391 U. S.
330-331 (footnote omitted).
"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
Page 424 U. S. 517
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.
Id. at
391 U. S.
332.
"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 ownership of property rests in this country.
. . ."
Id. at
391 U. S.
332-333.
Four years later, the Court had occasion to reconsider the
Logan Valley doctrine in
Lloyd Corp. v. Tanner,
407 U. S. 551.
That case involved a shopping center covering some 50 acres in
downtown Portland, Ore. On a November day in 1968, five young
people entered the mall of the shopping center and distributed
handbills protesting the then ongoing American military operations
in Vietnam. Security guards told them to leave, and they did so,
"to avoid arrest."
Id. at
407 U. S. 556.
They subsequently brought suit in a Federal District Court, seeking
declaratory and injunctive relief. The trial court ruled in their
favor, holding that the distribution of handbills on the shopping
center's property was protected by the First and Fourteenth
Amendments. The Court of Appeals for the Ninth Circuit affirmed the
judgment, 446 F.2d 545, expressly relying on this Court's
Marsh and
Logan Valley decisions. This Court
reversed the judgment of the Court of Appeals.
The Court in its
Lloyd opinion did not say that it was
overruling the
Logan Valley decision. Indeed, a
substantial portion of the Court's opinion in
Lloyd was
devoted to pointing out the differences between the two cases,
noting particularly that, in contrast to the handbilling in
Lloyd, the picketing in
Logan Valley had been
Page 424 U. S. 518
specifically directed to a store in the shopping center, and the
pickets had had no other reasonable opportunity to reach their
intended audience. 407 U.S. at
407 U. S.
561-567. [
Footnote
5] But the fact is that the reasoning of the Court's opinion in
Lloyd cannot be squared with the reasoning of the Court's
opinion in
Logan Valley.
It matters not that some Members of the Court may continue to
believe that the
Logan Valley case was rightly decided.
[
Footnote 6] Our institutional
duty is to follow until changed the law as it now is, not as some
Members of the Court might wish it to be. And, in the performance
of that duty, we make clear now, if it was not clear before, that
the rationale of
Logan Valley did not survive the Court's
decision in the
Lloyd case. [
Footnote 7] Not only did the
Lloyd opinion
incorporate lengthy excerpts from two of the dissenting opinions in
Logan Valley, 407 U.S. at
407 U. S.
562-563, 565; the ultimate holding in
Lloyd
amounted to a total rejection of the holding in
Logan
Valley:
"The basic issue in this case is whether respondents, in the
exercise of asserted First Amendment
Page 424 U. S. 519
rights, may distribute handbills on Lloyd's private property
contrary to its wishes and contrary to a policy enforced against
all handbilling. In addressing this issue, it must be remembered
that the First and Fourteenth Amendments safeguard the rights of
free speech and assembly by limitations on state action, not on
action by the owner of private property used nondiscriminatorily
for private purposes only. . . ."
407 U.S. at
407 U. S.
567.
"Respondents contend . . . that the property of a large shopping
center is 'open to the public,' serves the same purposes as a
'business district' of a municipality, and therefore has been
dedicated to certain types of public use. The argument is that such
a center has sidewalks, streets, and parking areas which are
functionally similar to facilities customarily provided by
municipalities. It is then asserted that all members of the public,
whether invited as customers or not, have the same right of free
speech as they would have on the similar public facilities in the
streets of a city or town."
"The argument reaches too far. The Constitution by no means
requires such an attenuated doctrine of dedication of private
property to public use. The closest decision in theory,
Marsh
v. Alabama, supra, involved the assumption by a private
enterprise of all of the attributes of a state-created municipality
and the exercise by that enterprise of semi-social municipal
functions as a delegate of the State. In effect, the owner of the
company town was performing the full spectrum of municipal powers,
and stood in the shoes of the State. In the instant case, there is
no comparable assumption or exercise of municipal functions or
power."
Id. at
407 U. S.
568-569 (footnote omitted).
Page 424 U. S. 520
"We hold that there has been no such dedication of Lloyd's
privately owned and operated shopping center to public use as to
entitle respondents to exercise therein the asserted First
Amendment rights. . . ."
Id. at
407 U. S.
570.
If a large self-contained shopping center
is the
functional equivalent of a municipality, as
Logan Valley
held, then the First and Fourteenth Amendments would not permit
control of speech within such a center to depend upon the speech's
content. [
Footnote 8] For while
a municipality may constitutionally impose reasonable time, place,
and manner regulations on the use of its streets and sidewalks for
First Amendment purposes,
see Cox v. New Hampshire,
312 U. S. 569;
Poulos v. New Hampshire, 345 U. S. 395, and
may even forbid altogether such use of some of its facilities,
see Adderley v. Florida, 385 U. S. 39, what
a municipality may
not do under the First and Fourteenth
Amendments is to discriminate in the regulation of expression on
the basis of the content of that expression,
Erznoznik v. City
of Jacksonville, 422 U. S. 205.
"[A]bove all else, the First Amendment means that government has
no power to restrict expression because of its message, its ideas,
its subject matter, or its content"
Police Dept. of Chicago v. Mosley, 408 U. S.
92,
408 U. S. 95.
[
Footnote 9] It conversely
follows, therefore, that, if the respondents in the
Lloyd
case did not have a First Amendment right to enter that shopping
center to distribute handbills concerning Vietnam, then the pickets
in the present case did not have a First Amendment
Page 424 U. S. 521
right to enter this shopping center for the purpose of
advertising their strike against the Butler Shoe Co.
We conclude, in short, that, under the present state of the law,
the constitutional guarantee of free expression has no part to play
in a case such as this.
III
From what has been said, it follows that the rights and
liabilities of the parties in this case are dependent exclusively
upon the National Labor Relations Act. Under the Act, the task of
the Board, subject to review by the courts, is to resolve conflicts
between § 7 rights and private property rights, "and to seek a
proper accommodation between the two."
Central Hardware Co. v.
NLRB, 407 U.S. at
407 U. S. 543.
What is "a proper accommodation" in any situation may largely
depend upon the content and the context of the § 7 rights being
asserted. The task of the Board and the reviewing courts under the
Act, therefore, stands in conspicuous contrast to the duty of a
court in applying the standards of the First Amendment, which
requires, "above all else," that expression must not be restricted
by government "because of its message, its ideas, its subject
matter, or its content."
In the
Central Hardware case, and earlier in the case
of
NLRB v. Babcock & Wilcox Co., 351 U.
S. 105, the Court considered the nature of the Board's
task in this area under the Act. Accommodation between employees' §
7 rights and employers' property rights, the Court said in
Babcock & Wilcox, "must be obtained with as little
destruction of one as is consistent with the maintenance of the
other." 351 U.S. at
351 U. S.
112.
Both
Central Hardware and
Babcock & Wilcox
involved organizational activity carried on by nonemployees on the
employers' property. [
Footnote
10] The context of the § 7
Page 424 U. S. 522
activity in the present case was different in several respects
which may or may not be relevant in striking the proper balance.
First, it involved lawful economic strike activity, rather than
organizational activity.
See Steelworkers v. NLRB,
376 U. S. 492,
376 U. S. 499;
Bus Employees v. Missouri, 374 U. S.
74,
374 U. S. 82;
NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S. 234.
Cf. Houston Insulation Contractors Assn. v. NLRB,
386 U. S. 664,
386 U. S.
668-669. Second, the § 7 activity here was carried on by
Butler's employees (albeit not employees of its shopping center
store), not by outsiders.
See NLRB v. Babcock & Wilcox Co.,
supra at
351 U. S.
111-113. Third, the property interests impinged upon in
this case were not those of the employer against whom the § 7
activity was directed, but of another. [
Footnote 11]
The
Babcock & Wilcox opinion established the basic
objective under the Act: accommodation of § 7 rights and private
property rights "with as little destruction of one as is consistent
with the maintenance of the other." [
Footnote 12] The locus of that accommodation, however,
may fall at differing points along the spectrum depending on the
nature and strength of the respective § 7 rights and private
property rights asserted in any given context. In each generic
situation, the primary responsibility for making this accommodation
must rest with the Board in the first instance.
See NLRB v.
Babcock & Wilcox, supra at
351 U. S. 112;
cf. NLRB v. Erie Resistor Corp., supra at
373 U. S.
235-236;
Page 424 U. S. 523
NLRB v. Truckdrivers Union, 353 U. S.
87,
353 U. S. 97.
"The responsibility to adapt the Act to changing patterns of
industrial life is entrusted to the Board."
NLRB v. Weingarten,
Inc., 420 U. S. 251,
420 U. S.
266.
For the reasons stated in this opinion, the judgment is vacated
and the case is remanded to the Court of Appeals with directions to
remand to the National Labor Relations Board so that the case may
be there considered under the statutory criteria of the National
Labor Relations Act alone.
It is so ordered.
MR. JUSTICE STEVENS took no part in the consideration or
decision of this case.
[
Footnote 1]
The Butler warehouse was not located within the North DeKalb
Shopping Center.
[
Footnote 2]
Section 7, 29 U.S.C. § 157, provides:
"Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 158(a)(3) of this title."
[
Footnote 3]
Hudgens v. Local 1, Retail, Wholesale & Dept. Store
Union, 192 N.L.R.B. 671. Section 8(a)(1) makes it an unfair
labor practice for "an employer" to "restrain, or coerce employees"
in the exercise of their § 7 rights. While Hudgens was not the
employer of the employees involved in this case, it seems to be
undisputed that he was an employer engaged in commerce within the
meaning of §§ 2(6) and (7) of the Act, 29 U.S.C. §§ 152(6) and (7).
The Board has held that a statutory "employer" may violate §
8(a)(1) with respect to employees other than his own.
See
Austin Co., 101 N.L.R.B. 1257, 1258-1259.
See also §
2(13) of the Act, 29 U.S.C. § 152(13).
[
Footnote 4]
Hudgens v. Local 315, Retail, Wholesale & Dept. Store
Union, 205 N.L.R.B. 628.
[
Footnote 5]
Insofar as the two shopping centers differed as such, the one in
Lloyd more closely resembled the business section in
Chickasaw, Ala.:
"The principal differences between the two centers are that the
Lloyd Center is larger than Logan Valley, that Lloyd Center
contains more commercial facilities, that Lloyd Center contains a
range of professional and nonprofessional services that were not
found in Logan Valley, and that Lloyd Center is much more
intertwined with public streets than Logan Valley. Also, as in
Marsh, supra, Lloyd's private police are given full police
power by the city of Portland, even though they are hired, fired,
controlled, and paid by the owners of the Center. This was not true
in
Logan Valley."
407 U.S. at
407 U. S. 575
(MARSHALL, J., dissenting).
[
Footnote 6]
See id. at
407 U. S. 570
(MARSHALL, J., dissenting).
[
Footnote 7]
This was the entire thrust of MR. JUSTICE MARSHALL's dissenting
opinion in the
Lloyd case.
See id. at
407 U. S.
584.
[
Footnote 8]
MR. JUSTICE WHITE clearly recognized this principle in his
Logan Valley dissenting opinion. 391 U.S. at
391 U. S.
339.
[
Footnote 9]
The Court has in the past held that some expression is not
protected "speech" within the meaning of the First Amendment.
Roth v. United States, 354 U. S. 476;
Chaplinsky v. New Hampshire, 315 U.
S. 568.
[
Footnote 10]
A wholly different balance was struck when the organizational
activity was carried on by employees already rightfully on the
employer's property, since the employer's management interests,
rather than his property interests, were there involved.
Republic Aviation Corp. v. NLRB, 324 U.
S. 793. This difference is "one of substance."
NLRB
v. Babcock & Wilcox Co., 351 U.S. at
351 U. S.
113.
[
Footnote 11]
This is not to say that Hudgens was not a statutory "employer"
under the Act.
See n
3,
supra.
[
Footnote 12]
351 U.S. at
351 U. S. 112.
This language was explicitly reaffirmed as stating "the guiding
principle" in
Central Hardware Co. v. NLRB, 407 U.
S. 539,
407 U. S.
544.
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 (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. [
Footnote 2/1] I
now agree
Page 424 U. S. 524
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. [
Footnote 2/2]
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.
[
Footnote 2/1]
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
391 U. S. 330,
331.
[
Footnote 2/2]
The editorial "we" above is directed primarily to myself as the
author of the Court's opinion in
Lloyd Corp.
MR. JUSTICE WHITE, concurring in the result.
While I concur in the result reached by the Court, I find it
unnecessary to inter
Food Employees v. Logan Valley Plaza,
391 U. S. 308
(1968), and therefore do not join the Court's opinion. I agree that
"the constitutional guarantee of free expression has no part to
play in a case such as this,"
ante at
424 U. S. 521;
but
Lloyd Corp. v. Tanner, 407 U.
S. 551 (1972), did not overrule
Logan Valley,
either expressly or implicitly, and I would not, somewhat after the
fact, say that it did.
One need go no further than
Logan Valley itself, for
the First Amendment protection established by
Logan Valley
was expressly limited to the picketing of a specific store for the
purpose of conveying information with respect to the operation in
the shopping center of that store:
"The picketing carried on by petitioners was
Page 424 U. S. 525
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."
391 U.S. at
391 U. S. 320
n. 9. On its face,
Logan Valley does not cover the facts
of this case. The pickets of the Butler Shoe Co. store in the North
DeKalb Shopping Center were not purporting to convey information
about the "manner in which that particular [store] was being
operated." but rather about the operation of a warehouse not
located on the center's premises. The picketing was thus not
"directly related in its purpose to the use to which the shopping
center property was being put."
The First Amendment question in this case was left open in
Logan Valley. I dissented in
Logan Valley, 391
U.S. p.
391 U. S. 337,
and I see no reason to extend it further. Without such extension,
the First Amendment provides no protection for the picketing here
in issue, and the Court need say no more.
Lloyd v. Tanner
is wholly consistent with this view. There is no need belatedly to
overrule
Logan Valley, only to follow it as it is.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
dissenting.
The Court today holds that the First Amendment poses no bar to a
shopping center owner's prohibiting speech within his shopping
center. After deciding this far-reaching constitutional question,
and overruling
Food
Page 424 U. S. 526
Employees v. Logan Valley Plaza, 391 U.
S. 308 (1968), in the process, the Court proceeds to
remand for consideration of the statutory question whether the
shopping center owner in this case unlawfully interfered with the
Butler Shoe Co. employees' rights under § 7 of the National Labor
Relations Act, 29 U.S.C. § 157.
In explaining why it addresses any constitutional issue at all,
the Court observes simply that the history of the litigation has
been one of "shifting positions on the part of the litigants, the
Board, and the Court of Appeals,"
ante at
424 U. S. 512,
as to whether relief was being sought, or granted, under the First
Amendment, under § 7 of the Act, or under some combination of the
two. On my reading, the Court of Appeals' decision and, even more
clearly, the Board's decision here for review, were based solely on
§ 7, not on the First Amendment; and this Court ought initially
consider the statutory question without reference to the First
Amendment -- the question on which the Court remands. But even
under the Court's reading of the opinions of the Board and the
Court of Appeals, the statutory question on which it remands is now
before the Court. By bypassing that question and reaching out to
overrule a constitutionally based decision, the Court surely
departs from traditional modes of adjudication.
I would affirm the judgment of the Court of Appeals on purely
statutory grounds. And on the merits of the only question that the
Court decides, I dissent from the overruling of
Logan
Valley.
I
The Court views the history of this litigation as one of
"shifting positions" and "considerable confusion." To be sure, the
Board's position has not been constant. But the ultimate decisions
by the Administrative Law Judge
Page 424 U. S. 527
and by the Board rested solely on § 7 of the NLRA, not on the
First Amendment.
As the Court indicates, the Board's initial determination that
petitioner violated § 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1),
was based on its reading of
Logan Valley, a First
Amendment case. But before the Court of Appeals reviewed this
initial determination, this Court decided
Lloyd Corp. v.
Tanner, 407 U. S. 551
(1972), and
Central Hardware Co. v. NLRB, 407 U.
S. 539 (1972), and the Board moved to have the case
remanded for reconsideration in light of these two decisions. The
Court of Appeals granted the motion.
Lloyd and
Central Hardware demonstrated, each
in its own way, that
Logan Valley could not be read as
broadly as some Courts of Appeals had read it. And together they
gave a signal to the Board and to the Court of Appeals that it
would be wise to pass upon statutory contentions in cases of this
sort before turning to broad constitutional questions, the answers
to which could no longer be predicted with certainty.
See
Central Hardware, supra at
407 U. S. 548,
407 U. S. 549
(MARSHALL, J., dissenting);
Lloyd,
supra at 584 (MARSHALL, J., dissenting). Taking
heed of this signal, the Administrative Law Judge and the Board
proceeded on remand to assess the conflicting rights of the
employees and the shopping center owner within the framework of the
NLRA. The Administrative Law Judge's recommendation that petitioner
be found guilty of a 8(a)(1) violation rested explicitly on the
statutory test enunciated by this Court in
NLRB v. Babcock
& Wilcox Co., 351 U. S. 105
(1956). That the Administrative Law Judge supported his "realistic
view of the facts" by referring to this Court's "factual view" of
the
Logan Valley case surely cannot be said to alter the
judge's explicitly stated legal theory, which was a statutory
one.
Page 424 U. S. 528
Even more clearly, the Board's rationale in agreeing with the
Administrative Law Judge's recommendation was exclusively a
statutory one. Nowhere in the Board's decision,
Hudgens v.
Local 1, Retail, Wholesale & Dept. Store Union, 205
N.L.R.B. 628 (1973), is there any reference to the First Amendment
or any constitutionally based decision. The Board reached its
result "for the reasons specifically set forth in
Frank
Visceglia and Vincent Visceglia, t/a Peddie Buildings,"
[
Footnote 3/1]
ibid., a
case decided solely on § 7 grounds. In
Visceglia, the
Board had specifically declined to treat the picketing area in
question as the functional equivalent of a business block, and
rejected the applicability of
Logan Valley's First
Amendment analysis, finding an interference with § 7 rights under a
"modified"
Babcock & Wilcox test. [
Footnote 3/2] When the Board in this case relied
upon the rationale of
Visceglia, it was evidently
proceeding under the assumption that the First Amendment had no
application. Its ultimate conclusion that petitioner violated §
8(a)(1) of the Act was purely the result of an "accommodation
between [his] property rights and the employees' Section 7 rights."
205 N.L.R.B. 628.
The Court acknowledges that the Court of Appeals' enforcement of
the Board's order was based on its view of the employees' § 7
rights. But the Court suggests that the following reference to
Lloyd, a constitutional
Page 424 U. S. 529
case, indicates that the Court of Appeals' decision was infected
with constitutional considerations:
"
Lloyd burdens the General Counsel with the duty to
prove that other locations less intrusive upon Hudgens' property
rights than picketing inside the mall were either unavailable or
ineffective."
501 F.2d 161, 169. A reading of the entire Court of Appeals'
opinion, however, demonstrates that this language was not intended
to inject any constitutional considerations into the case. The
Court of Appeals' analysis began with an evaluation of the
statutory criteria urged by the parties. [
Footnote 3/3] Rejecting both parties' formulations of
the appropriate statutory standard, the Court of Appeals adopted a
modified version of an approach, suggested by an
amicus,
that incorporates a consideration of the relationship of the
protest to the use to which the private property in question is
put, and the availability of reasonably effective alternative means
of communicating with the intended audience. While the
amicus had derived its approach from
Lloyd and
Logan Valley, two constitutional cases, the Court of
Appeals was careful to note that the approach it applied was a
statutory, not a constitutional one:
"Section 7 rights are not necessarily coextensive
Page 424 U. S. 530
with constitutional rights,
see Central Hardware v. NLRB,
supra ([MARSHALL], J., dissenting). Nevertheless, we agree
that the rule suggested by
amicus, although having its
genesis in the constitutional issues raised in
Lloyd,
isolates the factors relevant to determining when private property
rights of a shopping center owner should be required to yield to
the section 7 rights of labor picketers."
501 F.2d at 167. With that explanation of the Court of Appeals'
view of the relevance of
Lloyd, it is evident that the
subsequent reference to
Lloyd, quoted out of context by
the Court, was not intended to alter the purely statutory basis of
the Court of Appeals' decision. [
Footnote 3/4]
In short, the Board's decision was clearly unaffected by
constitutional considerations, and I do not read the Court of
Appeals' opinion as intimating that its statutory result was
constitutionally mandated. In its present posture, the case
presents no constitutional question to the Court. Surely it is of
no moment that the Board, through its counsel, now urges this Court
to decide, as part of its statutory analysis, what result is
compelled by the First Amendment. The posture of the case is
determined by the decisions of the Board and the Court of Appeals,
not by the arguments advanced in the Board's brief. Since I read
those decisions as purely statutory ones, I would proceed to
consider the purely statutory question whether, assuming that
petitioner is not restricted by the First Amendment, his actions
nevertheless
Page 424 U. S. 531
violated § 7 of the Act. This is precisely the issue on which
the Court remands the case.
At the very least, it is clear that neither the Board nor the
Court of Appeals decided the case solely on First Amendment
grounds. The Court itself acknowledges that both decisions were
based on § 7. The most that can be said, and all that the Court
suggests, is that the Court of Appeals' view of § 7 was colored by
the First Amendment. But even if that were the case, this Court
ought not decide any First Amendment question -- particularly in a
way that requires overruling one of our decisions -- without first
considering the statutory question without reference to the First
Amendment. It is a well established principle that constitutional
questions should not be decided unnecessarily.
See, e.g.,
Hagans v. Lavine, 415 U. S. 528,
415 U. S. 543,
549 (1974);
Rosenberg v. Fleuti, 374 U.
S. 449 (1963);
Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
346-347 (1936) (Brandeis, J., concurring). If the Court
of Appeals disregarded that principle, that is no excuse for this
Court's doing so.
As already indicated, the Board, through its counsel, urges the
Court to apply First Amendment considerations in defining the scope
of § 7 of the Act. The Board takes this position because it is
concerned that the scope of § 7 not fall short of the scope of the
First Amendment, the result of which would be that picketing
employees could obtain greater protection by court suits than by
invoking the procedures of the NLRA. While that general concern is
a legitimate one, it does not justify the constitutional
adjudication undertaken by the Court. If it were undisputed that
the pickets in this case enjoyed some degree of First Amendment
protection against interference by petitioner, it might be
difficult to separate a consideration of the scope of that First
Amendment protection from an analysis of the scope of
Page 424 U. S. 532
protection afforded by § 7. But the constitutional question that
the Court decides today is whether the First Amendment operates to
restrict petitioner's actions in any way at all, and that question
is clearly severable, at least initially, from a consideration of §
7's scope -- as proved by the Court's remand of the case.
Thus even if, as the Court suggests, the Court of Appeals' view
of § 7 was affected by the First Amendment, the Court still could
have proceeded initially to decide the statutory question divorced
of constitutional considerations. I cannot understand the Court's
bypassing that purely statutory question to overrule a First
Amendment decision less than 10 years old. And I certainly cannot
understand the Court's remand of the purely statutory question to
the Board, whose decision was so clearly unaffected by any
constitutional considerations that the Court does not even suggest
otherwise.
II
On the merits of the purely statutory question that I believe is
presented to the Court, I would affirm the judgment of the Court of
Appeals. To do so, one need not consider whether consumer picketing
by employees is subject to a more permissive test under § 7 than
the test articulated in
Babcock & Wilcox for
organizational activity by nonemployees. In
Babcock &
Wilcox we stated that an employer "must allow the union to
approach his employees on his property" [
Footnote 3/5] if the employees are "beyond the reach of
reasonable efforts to communicate with them," 351 U.S. at
351 U. S. 113
-- that is, if "other means" of communication are not "readily
available."
Id. at
351 U. S. 114.
Thus, the general standard that emerges
Page 424 U. S. 533
from
Babcock & Wilcox is the ready availability of
reasonably effective alternative means of communication with the
intended audience.
In
Babcock & Wilcox itself, the intended audience
was the employees of a particular employer, a limited identifiable
group; and it was thought that such an audience could be reached
effectively by means other than entrance onto the employer's
property -- for example, personal contact at the employees' living
quarters, which were "in reasonable reach."
Id. at
351 U. S. 113.
In this case, of course, the intended audience was different, and
what constitutes reasonably effective alternative means of
communication also differs. As the Court of Appeals noted, the
intended audience in this case
"was only identifiable as part of the citizenry of greater
Atlanta until it approached the store, and thus for the picketing
to be effective, the location chosen was crucial unless the
audience could be known and reached by other means."
501 F.2d at 168. Petitioner contends that the employees could
have utilized the newspapers, radio, television, direct mail,
handbills, and billboards to reach the citizenry of Atlanta. But
none of those means is likely to be as effective as on-location
picketing: the initial impact of communication by those means would
likely be less dramatic, and the potential for dilution of impact
significantly greater. As this Court has observed:
"Publication in a newspaper, or by distribution of circulars,
may convey the same information or make the same charge as do those
patrolling a picket line. But the very purpose of a picket line is
to exert influences, and it produces consequences, different from
other modes of communication. The loyalties and responses evoked
and exacted by picket lines are unlike those flowing from appeals
by printed word."
Hughes v. Superior Court, 339 U.
S. 460,
339 U. S. 465
(1950).
Page 424 U. S. 534
In addition, all of the alternatives suggested by petitioner are
considerably more expensive than on-site picketing. Certainly
Babcock & Wilcox did not require resort to the mass
media, [
Footnote 3/6] or to more
individualized efforts on a scale comparable to that which would be
required to reach the intended audience in this case.
Petitioner also contends that the employees could have picketed
on the public rights-of-way, where vehicles entered the shopping
center. Quite apart from considerations of safety, that alternative
was clearly inadequate: prospective customers would have had to
read the picketers' placards while driving by in their vehicles --
a difficult task indeed. Moreover, as both the Board and the Court
of Appeals recognized, picketing at an entrance used by customers
of all retail establishments in the shopping center, rather than
simply customers of the Butler Shoe Co. store, may well have
invited undesirable secondary effects.
In short, I believe the Court of Appeals was clearly correct in
concluding that "alternatives to picketing inside the mall were
either unavailable or inadequate." 501 F.2d at 169. Under
Babcock & Wilcox, then, the picketing in this case was
protected by § 7. I would affirm the judgment of the Court of
Appeals on that basis.
III
Turning to the constitutional issue resolved by the Court, I
cannot escape the feeling that
Logan Valley has been laid
to rest without ever having been accorded a proper burial. The
Court today announces that "the ultimate holding in
Lloyd
amounted to a total rejection
Page 424 U. S. 535
of the holding in
Logan Valley."
Ante at
424 U. S. 518.
To be sure, some Members of the Court, myself included, believed
that
Logan Valley called for a different result in
Lloyd and alluded in dissent to the possibility that "it
is
Logan Valley itself that the Court finds bothersome."
407 U.S. at
407 U. S. 570,
407 U. S. 584
(MARSHALL, J., dissenting). But the fact remains that
Logan
Valley explicitly reserved the question later decided in
Lloyd, and
Lloyd carefully preserved the holding
of
Logan Valley. And upon reflection, I am of the view
that the two decisions are reconcilable.
A
In
Logan Valley, the Court was faced with union
picketing against a nonunion supermarket located in a large
shopping center. Our holding was a limited one:
"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 generally consonant with the use to which the property is
actually put."
391 U.S. at
391 U. S.
319-320 (footnote omitted). We carefully noted that we
were
"not called upon to consider whether respondents' property
rights could, consistently with the First Amendment, justify a bar
on picketing which was not . . . directly related in its purpose to
the use to which the shopping center property was being put."
Id. at
391 U. S. 320
n. 9.
Lloyd involved the distribution of anti-war handbills
in a large shopping center, and while some of us viewed
Page 424 U. S. 536
the case differently, 407 U.S. at
407 U. S. 570,
577-579 (MARSHALL, J., dissenting), the Court treated it as
presenting the question left open in
Logan Valley. But the
Court did no more than decide that question. It preserved the
holding of
Logan Valley, as limited to cases in which (1)
the picketing is directly related in its purpose to the use to
which the shopping center property is put, and (2) "no other
reasonable opportunities for the pickets to convey their message to
their intended audience [are] available." 407 U.S. at
407 U. S.
563.
The Court today gives short shrift to the language in
Lloyd preserving
Logan Valley, and quotes
extensively from language that admittedly differs in emphasis from
much of the language of
Logan Valley. But even the
language quoted by the Court says no more than that the dedication
of the Lloyd Center to public use was more limited than the
dedication of the company town in
Marsh v. Alabama,
326 U. S. 501
(1946), and that the pickets in
Lloyd were not entitled to
exercise "the asserted First Amendment rights" -- that is, the
right to distribute anti-war handbills.
Any doubt about the limited scope of
Lloyd is removed
completely by a consideration of
Central Hardware Co. v.
NLRB, 407 U. S. 539
(1972), decided the same day as
Lloyd. In
Central
Hardware, the Court was faced with solicitation by nonemployee
union organizers on a parking lot of a retail store that was not
part of a shopping center complex -- activity clearly related to
the use to which the private property had been put. The Court found
the activity unprotected by the First Amendment, but in a way that
explicitly preserved the holding in
Logan Valley. The
Court could have held that the First Amendment has no application
to use-related activity on privately owned business property,
thereby rejecting
Logan Valley, but, instead, the Court
chose to
Page 424 U. S. 537
distinguish .the parking lot in
Central Hardware from
the shopping center complex in
Logan Valley. Rejecting the
argument that the opening of property to the general public
suffices to activate the prohibition of the First Amendment, the
Court explained:
"This analysis misconceives the rationale of
Logan
Valley. Logan Valley involved a large commercial
shopping center which the Court found had displaced, in certain
relevant respects, the functions of the normal municipal 'business
block.' First and Fourteenth Amendment free speech rights were
deemed infringed under the facts of that case when the property
owner invoked the trespass laws of the State against the
pickets."
"Before an owner of private property can be subjected to the
commands of the First and Fourteenth Amendments, the privately
owned property must assume to some significant degree the
functional attributes of public property devoted to public use. . .
The only fact relied upon for the argument that Central's parking
lots have acquired the characteristics of a public municipal
facility is that they are 'open to the public.' Such an argument
could be made with respect to almost every retail and service
establishment in the country, regardless of size or location. To
accept it would cut
Logan Valley entirely away from its
roots in
Marsh."
407 U.S. at
407 U. S. 547
(footnote omitted). If, as the Court tells us, "the rationale of
Logan Valley did not survive the Court's decision in the
Lloyd case,"
ante at
424 U. S. 518,
one wonders why the Court in
Central Hardware, decided the
same day as
Lloyd, implicitly reaffirmed
Logan
Valley's rationale.
Page 424 U. S. 538
B
It is inescapable that, after
Lloyd, Logan Valley
remained "good law," binding on the state and federal courts. Our
institutional duty in this case, if we consider the constitutional
question at all, is to examine whether
Lloyd and
Logan
Valley can continue to stand side by side, and, if they
cannot, to decide which one must fall. I continue to believe that
the First Amendment principles underlying
Logan Valley are
sound, and were unduly limited in
Lloyd. But, accepting
Lloyd, I am not convinced that
Logan Valley must
be overruled.
The foundation of
Logan Valley consisted of this
Court's decisions recognizing a right of access to streets,
sidewalks, parks, and other public places historically associated
with the exercise of First Amendment rights.
E.g., Hague v.
CIO, 307 U. S. 496,
307 U. S.
515-516 (1939) (opinion of Roberts, J.);
Schneider
v. State, 308 U. S. 147
(1939);
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 308
(1940);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S. 574
(1941);
Jamison v. Texas, 318 U.
S. 413 (1943);
Saia v. New York, 334 U.
S. 558 (1948). Thus, the Court in
Logan Valley
observed that access to such forums "cannot constitutionally be
denied broadly and absolutely." 391 U.S. at
391 U. S. 315.
The importance of access to such places for speech-related purposes
is clear, for they are often the only places for effective speech
and assembly.
Marsh v. Alabama, supra, which the Court purports to
leave untouched, made clear that, in applying those cases granting
a right of access to streets, sidewalks, and other public places,
courts ought not let the formalities of title put an end to
analysis. The Court in
Marsh observed that
"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
Page 424 U. S. 539
property belongs to a private corporation."
326 U.S. at
326 U. S. 503.
That distinction was not determinative:
"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."
Id. at
326 U. S. 506.
Regardless of who owned or possessed the town in
Marsh,
the Court noted, "the public . . . has an identical interest in the
functioning of the community in such manner that the channels of
communication remain free,"
id. at
326 U. S. 507,
and that interest was held to prevail.
The Court adopts the view that
Marsh has no bearing on
this case because the privately owned property in
Marsh
involved all the characteristics of a typical town. But there is
nothing in
Marsh to suggest that its general approach was
limited to the particular facts of that case. The underlying
concern in
Marsh was that traditional public channels of
communication remain free regardless of the incidence of ownership.
Given that concern, the crucial fact in
Marsh was that the
company owned the traditional forums essential for effective
communication; it was immaterial that the company also owned a
sewer system and that its property in other respects resembled a
town.
In
Logan Valley we recognized what the Court today
refuses to recognize -- that the owner of the modern shopping
center complex, by dedicating his property to public use as a
business district, to some extent displaces the "State" from
control of historical First Amendment forums, and may acquire a
virtual monopoly of places suitable for effective communication.
The roadways, parking lots, and walkways of the modern shopping
center
Page 424 U. S. 540
may be as essential for effective speech as the streets and
sidewalks in the municipal or company-owned town. [
Footnote 3/7] I simply cannot reconcile the Court's
denial of any role for the First Amendment in the shopping center
with
Marsh's recognition of a full role for the First
Amendment on the streets and sidewalks of the company-owned
town.
My reading of
Marsh admittedly carried me farther than
the Court in
Lloyd, but the
Lloyd Court remained
responsive in its own way to the concerns underlying
Marsh. Lloyd retained the availability of First
Amendment protection when the picketing is related to the function
of the shopping center, and when there is no other reasonable
opportunity to convey the message to the intended audience.
Preserving
Logan Valley subject to
Lloyd's two
related criteria guaranteed that the First Amendment would have
application in those situations in which the shopping center owner
had most clearly monopolized the forums essential for effective
communication. This result, although not the optimal one in my
view,
Lloyd Corp. v. Tanner, 407 U.S. at
407 U. S.
579-583 (MARSHALL, J., dissenting), is nonetheless
defensible.
In
Marsh, the private entity had displaced the "state"
from control of all the places to which the public had historically
enjoyed access for First Amendment purposes, and the First
Amendment was accordingly held fully applicable to the private
entity's conduct. The shopping center owner, on the other hand,
controls only
Page 424 U. S. 541
a portion of such places, leaving other traditional public
forums available to the citizen. But the shopping center owner may
nevertheless control all places essential for the effective
undertaking of some speech-related activities -- namely, those
related to the activities of the shopping center. As for those
activities, then, the First Amendment ought to have application
under the reasoning of
Marsh, and that was precisely the
state of the law after
Lloyd.
The Court's only apparent objection to this analysis is that it
makes the applicability of the First Amendment turn to some degree
on the subject matter of the speech. But that, in itself is no
objection, and the cases cited by the Court to the effect that
government may not "restrict expression because of its message, its
ideas, its subject matter, or its content,"
Police Dept. of
Chicago v. Mosley, 408 U. S. 92,
408 U. S. 95
(1972), are simply inapposite. In those cases, it was clearly the
government that was acting, and the First Amendment's bar against
infringing speech was unquestionably applicable; the Court simply
held that the government, faced with a general command to permit
speech, cannot choose to forbid some speech because of its message.
The shopping center cases are quite different; in these cases, the
primary regulator is a private entity whose property has "assume[d]
to some significant degree the functional attributes of public
property devoted to public use."
Central Hardware Co. v.
NLRB, 407 U.S. at
407 U. S. 547.
The very question in these cases is whether, and under what
circumstances, the First Amendment has any application at all. The
answer to that question, under the view of
Marsh described
above, depends to some extent on the subject of the speech the
private entity seeks to regulate, because the degree to which the
private entity monopolizes the effective channels of
communication
Page 424 U. S. 542
may depend upon what subject is involved. [
Footnote 3/8] This limited reference to the subject
matter of the speech poses none of the dangers of government
suppression or censorship that lay at the heart of the cases cited
by the Court.
See, e.g., Police Dept. of Chicago v. Mosley,
supra at
408 U. S. 95-96.
It is indeed ironic that those cases, whose obvious concern was the
promotion of free speech, are cited today to require its
surrender.
In the final analysis, the Court's rejection of any role for the
First Amendment in the privately owned shopping center complex
stems, I believe, from an overly formalistic view of the
relationship between the institution of private ownership of
property and the First Amendment's guarantee of freedom of speech.
No one would seriously question the legitimacy of the values of
privacy and individual autonomy traditionally associated with
privately owned property. But property that is privately owned is
not always held for private use, and when a property owner opens
his property to public use, the force of those values diminishes. A
degree of privacy is necessarily surrendered; thus, the privacy
interest that petitioner retains when he leases space to 60 retail
businesses and invites the public onto his land for the transaction
of business with other members of the public is small indeed.
Cf. Paris Adult Theatre I v. Slaton, 413 U. S.
49,
413 U. S. 667
(1973). And while the owner of property open to public use may not
automatically surrender any of his autonomy interest in managing
the property as he sees fit, there is nothing new about the notion
that that autonomy interest must be accommodated with the interests
of the public. As
Page 424 U. S. 543
this Court noted some time ago, albeit in another context:
"Property does become clothed with a public interest when used
in a manner to make it of public consequence and affect the
community at large. When, therefore, one devotes his property to a
use in which the public has an interest, he, in effect, grants to
the public an interest in that use, and must submit to be
controlled by the public for the common good, to the extent of the
interest he has thus created."
Munn v. Illinois, 94 U. S. 113,
94 U. S. 126
(1877).
The interest of members of the public in communicating with one
another on subjects relating to the businesses that occupy a modern
shopping center is substantial. Not only employees with a labor
dispute, but also consumers with complaints against business
establishments, may look to the location of a retail store as the
only reasonable avenue for effective communication with the public.
As far as these groups are concerned, the shopping center owner has
assumed the traditional role of the state in its control of
historical First Amendment forums.
Lloyd and
Logan
Valley recognized the vital role the First Amendment has to
play in such cases, and I believe that this Court errs when it
holds otherwise.
[
Footnote 3/1]
203 N.L.R.B. 265 (1973),
enforcement denied, NLRB v.
Visceglia, 498 F.2d 43 (CA3 1974).
[
Footnote 3/2]
The Board found the "principles of
Babcock & Wilcox
. . . to be applicable," 203 N.L.R.B. at 266-267, but seized upon a
factual distinction that the
Babcock & Wilcox Court
had itself suggested -- namely, the distinction between activity by
employees, as in
Visceglia, and activity by nonemployees,
as in
Babcock & Wilcox.
[
Footnote 3/3]
The Board's General Counsel urged a rule, based upon
Republic Aviation Corp. v. NLRB, 324 U.
S. 793 (1945), that the employee pickets could not be
excluded from the shopping center unless it could be shown that the
picketing interfered with the center's normal functioning. While
the Board's General Counsel thus did not rely on
Babcock &
Wilcox, the basis for the Board's decision, he still relied on
a statutory case, not a constitutional one.
Petitioner argued in the Court of Appeals that, under
Babcock & Wilcox, the picketing could be prohibited
unless it could be shown that there were no other available
channels of communication with the intended audience.
[
Footnote 3/4]
Indeed, the Court of Appeals quite clearly viewed the
Administrative Law Judge's recommendation and the Board's decision
as statutorily based. And the court did not even make the factual
finding of functional equivalence to a business district that it
recognized as a prerequisite to the application of the First
Amendment. 501 F.2d at 164.
[
Footnote 3/5]
It is irrelevant, in my view, that the property in this case was
owned by the shopping center owner, rather than by the employer.
The nature of the property interest is the same in either case.
[
Footnote 3/6]
The only alternative means of communication referred to in
Babcock & Wilcox were "personal contacts on streets or
at home, telephones, letters or advertised meetings to get in touch
with the employees." 351 U.S. at
351 U. S.
111.
[
Footnote 3/7]
No point would be served by adding to the observations in
Logan Valley and my dissent in
Lloyd with respect
to the growth of suburban shopping centers and the proliferation of
activities taking place in such centers.
See Logan Valley,
391 U.S. at
391 U. S. 324;
Lloyd, 407 U.S. at
407 U. S. 580,
407 U. S.
585-586.
See also Note,
Lloyd Corp. v.
Tanner: The Demise of
Logan Valley and the Disguise
of
Marsh, 61 Geo.L.J. 1187, 1216-1219 (1973).
[
Footnote 3/8]
See The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63,
135-138 (1968).