The opinion of the U.S. Supreme Court is located at 407 U.S. 551. The grant of petition for writ of certiorari to the Supreme Court of the U.S. is located at 404 U.S. 1037. The opinion of the U.S. Court of Appeals for the 9th Circuit is located at 446 F.2d 545. The opinion of the U.S. District Court (D. Or.) is located at 308 F.Supp. 128.
About the Lloyd Corporation: The Corporation owns a large retail shopping center in Portland, Oregon known as the Lloyd Center. The Lloyd Center covers 50 acres, including 20 acres of parking areas. It is bounded by public streets. Lloyd Corp. owns all the land and buildings within the Center. There are 60 commercial tenants. The Lloyd Center allows certain civic and charitable organizations, such as the American Legion and The Salvation Army, to have limited use of the mall.
About Respondents: Donald Tanner, Betsy Wheeler, Susan Roberts, and two other young people are anti-war protesters. They were trying to publicize a meeting of the “Resistance Community.” The “Resistance Community” was composed of people opposed to the draft and the Vietnam War.
1960- The Center institutes its strict no handbilling policy. At a few places within the Center, small signs are imbedded in the sidewalk which state:
“NOTICE- Areas In Lloyd Center Used By The Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May Be Revoked At Any Time. Lloyd Corporation, Ltd.”
1968- On November 14, the respondents distribute anti-war handbills within Lloyd Center. The distribution occurs in several places on the mall walkways. The five young people are quiet and orderly, and there is no littering. Security guards inform the respondents that they will be arrested if they do not cease and desist the distribution of said handbills. Respondents leave the premises in “order to avoid arrest” and continue handbilling outside.
1970- On January 15, respondents filed an action in the United States District Court of Oregon. Respondents sought an injunction affirming their right to distribute handbills and enjoining Lloyd Corp. from interfering with that right. Chief Judge Solomon grants the injunction, stating that the Center “is open to the general public” and that it is found to be “the functional equivalent of a public business district.”
1971- In a July 7 per curiam decision, the 9th Circuit Court of Appeals upholds the constitutionality of the injunction. It states that it is bound by the lower court’s “factual determination” as to the character of Lloyd Center and thus it must abide by the precedents in Marsh and Amalgamated Food Employees Union.
1972- The United States Supreme Court grants the petition for cert on January 17.
Legal Principles at Issue
Public Forum v. Property Rights: Peaceful expression carried on in a location open generally to public use is, absent from other factors, protected by the First Amendment. As such, public access must be given to streets, sidewalks, parks, and other similar public places that are historically associated with the exercise of free speech. Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. CIO, 307 U.S. 496 (1939); Schneider v. State, 308 U.S. 147 (1939). The Court has recognized that municipal business districts are also free speech “public forums.”
The Court has also held that in some circumstances, property that is privately owned may be considered “public” for First Amendment purposes. Marsh v. Alabama, 326 U.S. 501, (1946) In Marsh, the Court ruled that a Jehovah’s Witness had the right to distribute religious pamphlets in the business district of a town owned by a private corporation because that district was the functional equivalent of a business district in a municipality.
The Court extended the rationale of Marsh to include the peaceful picketing of a store in a large shopping center. Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, (1968)
A restriction of free expression in a public forum must be able to withstand strict judicial scrutiny of its effect on First Amendment rights.
Legal Basis for the Decision
The United States Supreme Court based its decision on two points. First, the Court distinguished Marsh and Amalgamated Food Employees Union, finding that the facts in those cases were significantly different than those involved in this case. Secondly, the Court found that there had been no dedication of Lloyd Corp.’s private property to public use so as to entitle respondents to exercise First Amendment rights.
The Supreme Court distinguished Marsh, noting that the Lloyd Center did not in any way resemble a private “company town.” Amalgamated Food Employees Union was distinguished on extremely narrow grounds. The Court found that its precedent was limited to a dispute involving one of the center’s tenants and “occurring under conditions where no realistic alternative for expression existed”.
While not technically overruling Amalgamated Food Employees Union, the Court undermined the rationale the Court had employed in that case. The Court held that the its expansive reading of the “Marsh Doctrine” in Amalgamated was unwarranted, as it had never suggested that the privately owned sidewalks of a business district or shopping center were, for First Amendment purposes, equivalent to municipally owned streets or sidewalks. Additionally, The Court found that petitioner’s argument-- that a direct or indirect relationship between the purpose of the expressive activity and the business of the shopping center was not needed-- was “considerably broader” that the holding in Amalgamated allowed. Lastly, the Court emphasized that the invitation extended to the public by Lloyd was commercial in nature and was not an “open-ended invitation to the public to use the Center for any and all purposes.”
In this case, the Court rejected the expansive interpretation of the “Marsh Doctrine” which is based on the idea that “the more an owner, for his advantage, opens up his property for use by the public, the more his rights become circumscribed by the statutory and constitutional rights of those who use it…”
“We do say that the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear.” (Justice Powell)
“But one may suspect from reading the opinion of the Court that it is Logan Valley itself that the Court finds bothersome. The vote in Logan Valley was 6-3, and that decision is only four years old. But, I am aware that the composition of this Court has radically changed in four years. The fact remains that Logan Valley is binding unless and until it is overruled. There is no valid distinction between that case and this one, and, therefore, the results in both cases should be the same.” (Justice Marshall, dissent)