By the 1960s, shopping centers accounted for more than one-third of the nation's retail sales. Crowds of shoppers made the centers attractive places for the exercise of first amendment rights such as picketing, leafleting, and the circulation of petitions. Two decades earlier, in marsh v. alabama (1946), the Supreme Court had assimilated the "company town" to the First Amendment doctrine governing the use of an ordinary city street as a public forum. When shopping center owners sought to prevent the use of their property for communications they had not approved, the question arose whether the centers, too, would be assimilated to the public forum doctrine.
The problem first came to the Supreme Court near the zenith of warren court activism in the defense of civil liberties. In Amalgamated Food Employees Union v. Logan Valley Plaza, Inc. (1968), a bare majority held that union picketing of a store in a shopping center was protected by the First Amendment. Justice thurgood marshall, for the Court, described the shopping center as the functional equivalent of the business district of the company town in Marsh. The author of the Marsh opinion, Justice hugo l. black, led the four dissenters.
When the issue returned to the Court, President richard m. nixon's four appointees were sitting. A new 5–4 majority now held, in Lloyd Corp v. Tanner (1972), that the distribution of leaflets opposing the vietnam war could be forbidden by a shopping center's private owner. Justice lewis f. powell, for the majority, distinguished Logan Valley: the leafleting here had no relation to the center's activities, and here alternative means of communication were reasonably available on nearby streets. Justice Marshall led the dissenters.
The circle closed four years later, when a 7–2 majority, speaking through Justice potter stewart (a Lloyd Corp. dissenter), said that Lloyd Corp. really had overruled Logan Valley.hudgens v. nlrb (1976), like Logan Valley, was a union picketing case. Justice Stewart pointed out that Lloyd Corp. had drawn an untenable distinction based on the content of messages being conveyed; because that distinction failed, it was necessary to make a yes-or-no decision on the assimilation of shopping centers to the doctrine governing company towns—and the majority's answer was "no."
Some passages in the Lloyd Corp. opinion had suggested that a shopping center owner had a constitutionally protected property right to exclude leafleters. That argument was flatly rejected by the Court in pruneyard shopping center v. robbins (1980). California's supreme court had ruled that the state constitution protected the right to collect signatures for a petition in a shopping center. The U.S. Supreme Court unanimously held that this principle of state constitutional law did not violate any federal constitutional rights.
Kenneth L. Karst
Tribe, Laurence H. 1978 American Constitutional Law. Pages 693–696, 1163–1167. Mineola, N.Y.: Foundation Press.