407 U.S. 551 - Lloyd Corporation Ltd v. M Tanner

Page 552

George Black, Jr., Portland, Or., for petitioner.

Carl R. Neil, Portland, Or., for respondents.

djQ Mr. Justice POWELL delivered the opinion of the Court.

This case presents the question reserved by the Court in
Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza,
Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), as to
the right of a privately owned shopping center to prohibit the
distribution of handbills on its property when the handbilling is
unrelated to the shopping center's operations. Relying primarily
on Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265
(1946), and Logan Valley, the United States District Court for the
District of Oregon sustained an asserted First Amendment right to
distribute handbills in petitioner's shopping center, and issued a
permanent injunction restraining petitioner from interfering with
such right. 308 F.Supp. 128 (1970). The Court of Appeals for the
Ninth Circuit affirmed, 446 F.2d 545 (1971). We granted certiorari
to consider petitioner's contention that the decision below

Page 553

violates rights of private property protected by the Fifth and
Fourteenth Amendments. 404 U.S. 1037, 92 S.Ct. 703, 30 L.Ed.2d 728
(1972).

Lloyd Corp., Ltd. (Lloyd), owns a large, modern retail
shopping center in Portland, Oregon. Lloyd Center embraces
altogether about 50 acres, including some 20 acres of open and
covered parking facilities which accommodate more than 1,000
automobiles. It has a perimeter of almost one and one-half miles,
bounded by four public streets. It is crossed in varying degrees
by several other public streets, all of which have adjacent public
sidewalks. Lloyd owns all land and buildings within the Center,
except these public streets and sidewalks. There are some 60
commercial tenants, including small shops and several major
department stores.

The Center embodies a relatively new concept in shopping
center design. The stores are all located within a single large,
multi-level building complex sometimes referred to as the 'Mall.'
Within this complex, in addition to the stores, there are parking
facilities, malls, private sidewalks, stairways, escalators,
gardens, an auditorium, and a skating rink. Some of the stores
open directly on the outside public sidewalks, but most open on
the interior privately owned malls. Some stores open on both.
There are no public streets or public sidewalks within the
building complex, which is enclosed and entirely covered except
for the landscaped portions of some of the interior malls.

The distribution of the handbills occurred in the malls. They
are a distinctive feature of the Center, serving both utilitarian
and esthetic functions. Essentially, they are private, interior
promenades with 10-foot sidewalks serving the stores, and with a
center strip 30 feet wide in which flowers and shrubs are planted,
and statutary, fountains, benches, and other amenities are
located. There is no vehicular traffic on the malls. An archi-

Page 554

tectural expert described the purpose of the malls as follows:

'In order to make shopping easy and pleasant, and to help
realize the goal of maximum sales (for the Center), the shops
are grouped about special pedestrian ways or malls. Here the
shopper is isolated from the noise, fumes, confusion and
distraction which he normally finds along city streets, and a
controlled, carefree environment is provided . . ..'1

Although the stores close at customary hours, the malls are
not physically closed, as pedestrian window shopping is encouraged
within reasonable hours.2 Lloyd employs 12 security guards, who
are commissioned as such by the city of Portland. The guards have
police authority within the Center, wear uniforms similar to those
worn by city police, and are licensed to carry handguns. They are
employed by and subject to the control of Lloyd. Their duties are
the customary ones, including shoplifting surveillance and general
security.

At a few places within the Center small signs are embedded in
the sidewalk which state:

'NOTICE—Areas In Lloyd Center Used By The

Page 555

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.'

The Center is open generally to the public, with a
considerable effort being made to attract shoppers and prospective
shoppers, and to create 'customer motivation' as well as customer
goodwill in the community. In this respect the Center pursues
policies comparable to those of major stores and shopping centers
across the country, although the Center affords superior
facilities for these purposes. Groups and organizations are
permitted, by invitation and advance arrangement, to use the
auditorium and other facilities. Rent is charged for use of the
auditorium except with respect to certain civic and charitable
organizations, such as the Cancer Society and Boy and Girl Scouts.
The Center also allows limited use of the malls by the American
Legion to sell poppies for disabled veterans, and by the Salvation
Army and Volunteers of America to solicit Christmas contributions.
It has denied similar use to other civic and charitable
organizations. Political use is also forbidden, except that
presidential candidates of both parties have been allowed to speak
in the auditorium.3

The Center had been in operation for some eight years when
this litigation commenced. Throughout this period it had a policy,
strictly enforced, against the distribution of handbills within
the building complex and its malls. No exceptions were made with
respect to handbilling, which was considered likely to annoy
customers, to create litter, potentially to create disorders,

Page 556

and generally to be incompatible with the purpose of the Center
and the atmosphere sought to be preserved.

On November 14, 1968, the respondents in this case
distributed within the Center handbill invitations to a meeting of
the 'Resistance Community' to protest the draft and the Vietnam
war. The distribution, made in several different places on the
mall walkways by five young people, was quiet and orderly, and
there was no littering. There was a complaint from one customer.
Security guards informed the respondents that they were
trespassing and would be arrested unless they stopped distributing
the handbills within the Center.4 The guards suggested that
respondents distribute their literature on the public streets and
sidewalks adjacent to but outside of the Center complex.
Respondents left the premises as requested 'to avoid arrest' and
continued the handbilling outside. Subsequently this suit was
instituted in the District Court seeking declaratory and
injunctive relief.

I

The District Court, emphasizing that the Center 'is open to
the general public,' found that it is 'the functional equivalent
of a public business district.' 308 F.Supp., at 130. That court
then held that Lloyd's 'rule prohibiting the distribution of
handbills within the Mall violates . . . First Amendment rights.'
308 F.Supp., at 131. In a per curiam opinion, the Court of Appeals
held that it was bound by the 'factual determination' as to the
character of the Center, and concluded that the decisions of this
Court in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed.
265 (1946), and Amalgamated Food

Page 557

Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.
308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), compelled affirmance.5

Marsh involved Chickasaw, Alabama, a company town wholly
owned by the Gulf Shipbuilding Corp. The opinion of the Court, by
Mr. Justice Black, described Chickasaw 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 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

Page 558

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 502
503, 66 S.Ct., at 277.

A Jehovah's Witness undertook to distribute religious
literature on a sidewalk near the post office and was arrested on
a trespassing charge. In holding that First and Fourteenth
Amendment rights were infringed, the Court emphasized that the
business district was within a company-owned town, an anachronism
long prevalent in some southern States and now rarely found.6

In Logan Valley the Court extended the rationale of Marsh to
peaceful picketing of a store located in a large shopping center,
known as Logan Walley Mall, near Altoona, Pennsylvania. Weis
Markets, Inc. (Weis), an original tenant, had opened a supermarket
in one of the larger stores and was employing a wholly nonunion
staff. Within 10 days after Weis opened, members of Amalgamated
Food Employees Union Local 590 (Union) began picketing Weis,
carrying signs stating that it was a nonunion market and that its
employees were not receiving union wages or other union benefits.
The picketing, conducted by nonemployees, was carried out

Page 559

almost entirely in the parcel pickup area immediately adjacent to
the store and on portions of the adjoining parking lot. The
picketing was peaceful, with the number of pickets varying from
four to 13.

Weis and Logan Valley Plaza, Inc., sought and obtained an
injunction against this picketing. The injunction required that
all picketing be confined to public areas outside the shopping
center. On appeal the Pennsylvania Supreme Court affirmed the
issuance of the injunction, and this Court granted certiorari. In
framing the question, this Court stated:

'The case squarely presents . . . 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.' 391 U.S., at
315, 88 S.Ct., at 1606.

The Court noted that the answer would be clear 'if the
shopping center premises were not privately owned but instead
constituted the business area of a municipality.' Id., at 315, 88
S.Ct., at 1607. In the latter situation, it has often been held
that publicly owned streets, sidewalks, and parks are so
historically associated with the exercise of First Amendment
rights that access to them for purposes of exercising such rights
cannot be denied absolutely. Lovell v. Griffin, 303 U.S. 444, 58
S.Ct. 666, 82 L.Ed. 949 (1938); Hague v. CIO, 307 U.S. 496, 59
S.Ct. 954, 83 L.Ed. 1423 (1939); Schneider v. State, 308 U.S. 147,
60 S.Ct. 146, 84 L.Ed. 155 (1939); Jamison v. Texas, 318 U.S. 413,
63 S.Ct. 669, 87 L.Ed. 869 (1943).

The Court then considered Marsh v. Alabama, supra, and
concluded that:

'The shopping center here is clearly the functional
equivalent of the business district of Chickasaw involved in
Marsh.' 391 U.S., at 318, 88 S.Ct., at 1608.

But the Court was careful not to go further and say that for
all purposes and uses the privately owned streets,

Page 560

sidewalks, and other areas of a shopping center are analogous to
publicly owned facilities:

'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. State of Alabama, 326 U.S., at
508, 66 S.Ct., at 279, 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.' Id., at 319—320, 88 S.Ct., at
1609.

The Court noted that the scope of its holding was limited,
and expressly reserved judgment on the type of issue presented in
this case:

'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.' Id., at 320 n. 9, 88 S.Ct., at 1609.

The Court also took specific note of the facts that the
Union's picketing was 'directed solely at one establishment within
the shopping center,' Id., at 321, 88 S.Ct., at 1610, and that the
public berms and sidewalks were 'from 350 to 500 feet away from
the Weis store.' Id., at 322, 88 S.Ct., at 1610. This distance
made it difficult 'to communicate (with) patrons of Weis' and 'to
limit (the) effect (of

Page 561

the picketing) to Weis only.' Id., at 322, 323, 88 S.Ct., at
1611.7 Logan Valley was decided on the basis of this factual
situation, and the facts in this case are significantly different.

II

The courts below considered the critical inquiry to be
whether Lloyd Center was 'the functional equivalent of a public
business district.'⁸ This phrase was first used in Logan Valley,
but its genesis was in Marsh. It is well to consider what Marsh
actually decided. As noted above, it involved an economic anomaly
of the past, 'the company town.' One must have seen such towns to
understand that 'functionally' they were no different from
municipalities of comparable size. They developed primarily in the
Deep South to meet economic conditions, especially those which
existed following the Civil War. Impoverished States, and
especially backward areas thereof, needed an influx of industry
and capital. Corporations attracted to the area by natural
resources and abundant labor were willing to assume the role of
local government. Quite literally, towns

Page 562

were built and operated by private capital with all of the
customary services and utilities normally afforded by a municipal
or state government: there were streets, sidewalks, sewers, public
lighting, police and fire protection, business and residential
areas, churches, postal facilities, and sometimes schools. In
short, as Mr. Justice Black said, Chickasaw, Alabama, had 'all the
characteristics of any other American town.' 326 U.S., at 502, 66
S.Ct., at 277. The Court simply held that where private interests
were substituting for and performing the customary functions of
government, First Amendment freedoms could not be denied where
exercised in the customary manner on the town's sidewalks and
streets. Indeed, as title to the entire town was held privately,
there were no publicly owned streets, sidewalks, or parks where
such rights could be exercised.

Logan Valley extended Marsh to a shopping center situation in
a different context from the company town setting, but it did so
only in a context where the First Amendment activity was related
to the shopping center's operations. There is some language in
Logan Valley, unnecessary to the decision, suggesting that the key
focus of Marsh was upon the 'business district,' and that whenever
a privately owned business district serves the public generally
its sidewalks and streets become the functional equivalents of
similar public facilities.9 As Mr. Justice Black's dissent in
Logan Valley emphasized, this would be an incorrect interpretation
of the Court's decision in Marsh:¹⁰

'Marsh was never intended to apply to this kind of situation.
Marsh dealt with the very special

Page 563

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 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 502, 66 S.Ct. at 277. 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 508, 66 S.Ct. at 279. 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.' 391 U.S., at 330—331, 88 S.Ct., at 1614.

The holding in Logan Valley was not dependent upon the
suggestion that the privately owned streets and sidewalks of a
business district or a shopping center are the equivalent, for
First Amendment purposes, of municipally owned streets and
sidewalks. No such expansive reading of the opinion of the Court
is necessary or appropriate. The opinion was carefully phrased to
limit its holding to the picketing involved, where the picketing
was 'directly related in its purpose to the use to which the
shopping center property was being put,' 391 U.S., at 320 n. 9, 88
S.Ct., at 1609, and where the store was located in the center of a
large private enclave with the consequence that no other
reasonable opportunities for the pickets to convey their message
to their intended audience were available.

Page 564

Neither of these elements is present in the case now before
the Court.

A.

The handbilling by respondents in the malls of Lloyd Center
had no relation to any purpose for which the center was built and
being used.11 It is nevertheless argued by respondents that, since
the Center is open to the public, the private owner cannot enforce
a restriction against handbilling on the premises. The thrust of
this argument is considerably broader than the rationale of Logan
Valley. It requires on relationship, direct or indirect, between
the purpose of the expressive activity and the business of the
shopping center. The message sought to be conveyed by respondents
was directed to all members of the public, not solely to patrons
of Lloyd Center or of any of its operations. Respondents could
have distributed these handbills on any public street, on any
public sidewalk, in any public park, or in any public building in
the city of Portland.

Respondents' argument, even if otherwise meritorious,
misapprehends the scope of the invitation extended to the public.
The invitation is to come to the Center to do business with the
tenants. It is true that facilities at the Center are used for
certain meetings and

Page 565

for various promotional activities. The obvious purpose,
recognized widely as legitimate and responsible business activity,
is to bring potential shoppers to the Center, to create a
favorable impression, and to generate goodwill. There is no
open-ended invitation to the public to use the Center for any and
all purposes, however incompatible with the interests of both the
stores and the shoppers whom they serve.

Mr. Justice WHITE, dissenting in Logan Valley, noted the
limited scope of a shopping center's invitation to the public:

'In no sense are any parts of the shopping center dedicated
to the public for general purposes . . .. 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.' 391 U.S., at 338, 88 S.Ct. at 1619.

It is noteworthy that respondents' argument based on the
Center's being 'open to the public' would apply in varying degrees
to most retail stores and service establishments across the
country. They are all open to the public in the sense that
customers and potential customers are invited and encouraged to
enter. In terms of being open to the public, there are differences
only

Page 566

of degree—not of principle—between a free-standing store and one
located in a shopping center, between a small store and a large
one, between a single store with some malls and open areas
designed to attract customers and Lloyd Center with its elaborate
malls and interior landscaping.

B

A further fact, distinguishing the present case from Logan
Valley, is that the Union pickets in that case would have been
deprived of all reasonable opportunity to convey their message to
patrons of the Weis store had they been denied access to the
shopping center.12 The situation at Lloyd Center was notably
different. The central building complex was surrounded by public
sidewalks, totaling 66 linear blocks. All persons who enter or
leave the private areas within the complex must cross public
streets and sidewalks, either on foot or in automobiles. When
moving to and from the privately

Page 567

owned parking lots, automobiles are required by law to come to a
complete stop. Handbills may be distributed conveniently to
pedestrians, and also to occupants of automobiles, from these
public sidewalks and streets. Indeed, respondents moved to these
public areas and continued distribution of their handbills after
being requested to leave the interior malls. It would be an
unwarranted infringement of property rights to require them to
yield to the exercise of First Amendment rights under
circumstances where adequate alternative avenues of communication
exist. Such an accommodation would diminish property rights
without significantly enhancing the asserted right of free speech.
In ordering this accommodation the courts below erred in their
interpretation of this Court's decisions in Marsh and Logan
Valley.

III

The basic issue in this case is whether respondents, in the
exercise of asserted First Amendment 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. The Due Process Clauses of the Fifth and Fourteenth
Amendments are also relevant to this case. They provide that '(n)o
person shall . . . be deprived of life, liberty, or property,
without due process of law.' There is the further proscription in
the Fifth Amendment against the taking of 'private property . . .
for public use, without just compensation.'

Although accommodations between the values protected by these
three Amendments are sometimes nec-

Page 568

essary, and the courts properly have shown a special solicitude
for the guarantees of the First Amendment, this Court has never
held that a trespasser or an uninvited guest may exercise general
rights of free speech on property privately owned and used
nondiscriminatorily for private purposes only. Even where public
property is involved, the Court has recognized that it is not
necessarily available for speaking, picketing, or other
communicative activities. Mr. Justice Black, speaking for the
Court in Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17
L.Ed.2d 149 (1966), said:

'The State, no less than a private owner of property, has
power to preserve the property under its control for the use
to which it is lawfully dedicated. For this reason there is
no merit to the petitioners' argument that they had a
constitutional right to stay on the property, over the jail
custodian's objections, because this 'area chosen for the
peaceful civil rights demonstration was not only 'reasonable'
but also particularly appropriate . . .' Such an argument has
as its major unarticulated premise the assumption that people
who want to propagandize protests or views have a
constitutional right to do so whenever and however and
wherever they please. That concept of constitutional law was
vigorously and forthrightly rejected in two of the cases
petitioners rely on, Cox v. Louisiana, (379 U.S. 536), at 554
555, (85 S.Ct. 453, 13 L.Ed.2d 471) and (379 U.S. 559), at
563—564, (85 S.Ct. 476, 13 L.Ed.2d 487). We reject it again.
The United States Constitution does not forbid a State to
control the use of its own property for its own lawful
nondiscriminatory purpose.' 385 U.S., at 47—48, 87 S.Ct., at
247.

Respondents contend, however, 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

Page 569

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 semiofficial municipal functions as
a delegate of the State.13 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 where is no
comparable assumption or exercise of municipal functions or power.

Nor does property lose its private character merely because
the public is generally invited to use it for designated purposes.
Few would argue that a free-standing store, with abutting parking
space for customers, assumes significant public attributes merely
because the public is invited to shop there. Nor is size alone the
controlling factor. The essentially private character of a store
and its privately owned abutting property does not change by
virtue of being large or clustered with other stores in a modern
shopping center. This is not to say that no differences may exist
with respect to government regula-

Page 570

tion or rights of citizens arising by virtue of the size and
diversity of activities carried on within a privately owned
facility serving the public. There will be, for example, problems
with respect to public health and safety which vary in degree and
in the appropriate government response, depending upon the size
and character of a shopping center, an office building, a sports
arena, or other large facility serving the public for commercial
purposes. 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.

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. Accordingly, we reverse the judgment and remand
the case to the Court of Appeals with directions to vacate the
injunction.

It is so ordered.

Judgment reversed and case remanded.

djQ Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS, Mr.
Justice BRENNAN, and Mr. Mustice STEWART join, dissenting.

Donald Tanner, Betsy Wheeler, and Susan Roberts (respondents)
brought this action for a declaratory judgment that they have the
right under the First and Fourteenth Amendments to the United
States Constitution to distribute handbills in a shopping center
owned by petitioner and an injunction to enforce that right.

Page 571

Relying primarily on our very recent decision in Amalgamated Food
Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88
S.Ct. 1601, 20 L.Ed.2d 603 (1968), the United States District
Court for the District of Oregon granted the relief requested. 308
F.Supp. 128 (1970). The United States Court of Appeals for the
Ninth Circuit affirmed. 446 F.2d 545 (1971). Today, this Court
reverses the judgment of the Court of Appeals and attempts to
distinguish this case from Logan Valley. In my view, the
distinction that the Court sees between the cases does not exist.
As I read the opinion of the Court, it is an attack not only on
the rationale of Logan Valley, but also on this Court's
longstanding decision in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct.
276, 90 L.Ed. 265 (1946). Accordingly, I dissent.

I

Lloyd Center is a large, modern retail shopping center in
Portland, Oregon. Sprawling over 50 acres of land, the Center
offers to shoppers more than 60 commercial businesses and
professional offices. It also affords more than 850,000 square
feet of open and covered offstreet parking space—enough to
accommodate more than 1,000 vehicles. Bounded by four public
streets, Lloyd Center has a perimeter of almost one and one-half
miles. Four public streets running east-west and one running
north-south traverse the Center, and at least six other public
streets run partly into or around it. All of these streets have
adjacent sidewalks. These streets and sidewalks are the only parts
of the Center that are not privately owned.

The principal portion of the Center is occupied by a shopping
area called the 'Mall.' Covering approximately 25 acres of land
and having a perimeter of four-fifths of a mile, the Maul, in the
words of the District Court, 'is a multilevel complex of
buildings, parking facilities, sub-malls, sidewalks, stairways,
elevators, es-

Page 572

calators, bridges, and gardens, and contains a skating rink,
statues, murals, benches, directories, information booths, and
other facilities designed to attract visitors and make them
comfortable.' 308 F.Supp., at 129. No public streets cross the
Mall, but some stores face those streets that form the perimeter,
and it is possible to enter those stores from public sidewalks.
Other stores are located in the interior of the Mall, and can only
be reached by using privately owned walkways.

On November 14, 1968, respondents entered the Mall and
distributed handbills inviting the public to a meeting to protest
the draft and the Vietnam war. The distribution was peaceful,
nondisruptive, and litter-free. Security guards employed by the
Center approached respondents, indicated that the Center did not
permit handbilling in the Mall, suggested that they distribute
their materials on the public sidewalks and streets, and informed
them that they could be arrested if they persisted in handbilling
within the privately owned portions of the Center. These guards
wore uniforms that were virtually identical to those worn by
regular Portland police and they possessed full police authority.
Believing that they would be arrested if they did not leave the
Mall, respondents departed and subsequently filed this lawsuit.1

A. The question presented by this case is whether one of the
incidents of petitioner's private ownership of the Lloyd Center is
the power to exclude certain

Page 573

forms of speech from its property. In other words, we must decide
whether ownership of the Center gives petitioner unfettered
discretion to determine whether or not it will be used as a public
forum.

This Court held in Marsh v. Alabama, supra, that even though
property is privately owned, under some circumstances it may be
treated as though it were publicly held, at least for purposes of
the First Amendment. In Marsh, a member of the Jehovah's Witnesses
religious sect was arrested and convicted of violating Alabama's
criminal trespass statute when she undertook to distribute
religious literature in the downtown shopping area of a privately
owned town without permission of the owner. The Court reasoned
that '(t)he 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.' Supra, Id., at 506, 66 S.Ct., at 278. Noting
that the stifling effect produced by any ban on free expression in
a community's central business district was the same whether the
ban was imposed by public or private owners, the Court concluded
that:

'When we balance the Constitutional rights of owners of
property against those of the people to enjoy freedom of
press and religion, as we must here, we remain mindful of the
fact that the latter occupy a preferred position. As we have
stated before, the right to exercise the liberties
safeguarded by the First Amendment 'lies at the foundation of
free government by free men' and we must in all cases 'weigh
the circumstances and . . . appraise the . . . reasons . . .
in support of the regulation . . . of the rights.' . . . In
our view the circumstance that the property rights to the
premises where the deprivation of liberty, here involved,
took place, were held by others than the public, is not
suffi-

Page 574

cient to justify the State's permitting a corporation to
govern a community of citizens so as to restrict their
fundamental liberties and the enforcement of such restraint
by the application of a State statute.' (Footnotes and
citations omitted.) Id., at 509, 66 S.Ct., at 280.

We relied heavily on Marsh in deciding Logan Valley, supra.
In Logan Valley, a shopping center in its formative stages
contained a supermarket and department store. The supermarket
employed a staff composed of only nonunion employees. Members of
Amalgamated Food Employees Union, Local 590, began to picket the
market with signs stating that the market's employees were not
receiving union wages or union benefits. The picketing was carried
out almost entirely in the parcel pickup area and that portion of
the parking lot immediately adjacent thereto. 391 U.S., at 311, 88
S.Ct., at 1604. The supermarket sought and obtained an injunction
from a Pennsylvania state court prohibiting the union members from
trespassing upon the parking areas or in the store, the effect of
which was to prohibit picketing and handbilling on any part of the
private property and to relegate the union members to carrying
signs on the publicly owned earthen berms that surrounded the
shopping center.² Finding that the shopping center was the
functional equivalent of the business district involved in Marsh,
we could see 'no reason why access to a business district in a
company town for the purpose of exercising First Amendment rights
should be constitutionally re-

Page 575

quired, 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.' Id., at 319, 88 S.Ct., at 1608. Thus, we held that the
union activity was constitutionally protected.

B. In the instant case the District Court found that 'the
Mall is the functional equivalent of a public business district'
within the meaning of Marsh and Logan Valley. The Court of Appeals
specifically affirmed this finding, and it is overwhelmingly
supported by the record.

The Lloyd Center is similar to Logan Valley Plaza in several
respects: both are bordered by public roads, and the entrances of
both lead directly into the public roads; both contain large
parking areas and privately owned walkways leading from store to
store; and the general public has unrestricted access to both. 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.

In 1954, when Lloyd's owners first acquired land for the
Center, the city of Portland vacated about eight acres of public
streets for their use. The ordinance accomplishing the vacation
sets forth the city's view of the Center's function:

'WHEREAS the Council finds that the reason for these
vacations is for general building purposes to

Page 576

be used in the development of a general retail business
district and the development of an adequate parking area to
support said district; . . . the Council . . . finds that in
order to develop a large retail unit such as contemplated by
Lloyd Corporation, Ltd., it is necessary to vacate the
streets above mentioned . . ..' (Emphasis added.) Ordinance
No. 101288, Nov. 10, 1954, App. 202.

The 1954 ordinance also indicates that the city of Portland
was aware that as Lloyd Center developed, it would be necessary
for the city to build new streets and to take other steps to
control the traffic flow that the Center would engender. App. 202,
208—209. In 1958, an emergency ordinance was passed giving the
Lloyd Center an extension of time to meet various conditions on
which the 1954 vacations were made. The city council viewed the
projected Center as offering an 'opportunity for much needed
employment' and concluded that the emergency ordinance was
'necessary for the immediate preservation of the public health,
peace and safety of the city of Portland.' Ordinance No. 107641,
March 20, 1958, App. 196.

In sum, the Lloyd Center is an integral part of the Portland
community. From its inception, the city viewed it as a 'business
district' of the city and depended on it to supply much-needed
employment opportunities. To insure the success of the Center, the
city carefully integrated it into the pattern of streets already
established and planned future development of streets around the
Center. It is plain, therefore, that Lloyd Center is the
equivalent of a public 'business district' within the meaning of
Marsh and Logan Valley. In fact, the Lloyd Center is much more
analogous to the company town in Marsh than was the Logan Valley
Plaza.

Petitioner agrees with our decision in Logan Valley that it
is proper for courts to treat shopping centers

Page 577

differently from other privately owned property, like private
residences. The Brief for Petitioner states at pages 9—10 that

'(a) shopping center, which falls somewhere between the
extremes of a company town and a private residence, is
neither absolutely subject to the control of the owner nor is
it absolutely open to all those wishing to engage in speech
activities. . . .

'Each case requires an appropriate resolution of the
conflicting interests of shopping center owners and those
seeking to engage in speech activities on shopping center
premises.'

Petitioner contends that our decision in Logan Valley struck
the appropriate balance between First Amendment and private
property interests. The argument is made, however, that this case
should be distinguished from Logan Valley, and this is the
argument that the Court accepts.

II

As I have pointed out above, Lloyd Center is even more
clearly the equivalent of a public business district than was
Logan Valley Plaza. The First Amendment activity in both Logan
Valley and the instant case was peaceful and nondisruptive; and
both cases involve traditionally acceptable modes of speech. Why
then should there be a different result here? The Court's answer
is that the speech in this case was directed at topics of general
interest—the the Vietnam war and the draft—whereas the speech in
Logan Valley was directed to the activities of a store in the
shopping center, and that this factual difference is of
constitutional dimensions. I cannot agree.

A. It is true that in Logan Valley we explicitly left open
the question whether 'property rights could, con-

Page 578

sistently with the First Amendment, justify a bar on picketing (or
handbilling) which was not . . . directly related in its purpose
to the use to which the shopping center property was being put.'
391 U.S., at 320 n. 9, 88 S.Ct., at 1609. But, I believe that the
Court errs in concluding that this issue must be faced in the
instant case.

The District Court observed that Lloyd Center invites schools
to hold football rallies, presidential candidates to give
speeches, and service organizations to hold Veterans Day
ceremonies on its premises. The court also observed that the
Center permits the Salvation Army, the Volunteers of America, and
the American Legion to solicit funds in the Mall. Thus, the court
concluded that the Center was already open to First Amendment
activities, and that respondents could not constitutionally be
excluded from distributing leaflets solely because Lloyd Center
was not enamored of the form or substance of their speech. The
Court of Appeals affirmed, taking the position that it was not
extending either Logan Valley or Marsh. In other words, the
District Court found that Lloyd Center had deliberately chosen to
open its private property to a broad range of expression and that
having done so it could not constitutionally exclude respondents,
and the Court of Appeals affirmed this finding.

Petitioner apparently concedes that if the lower courts are
correct, respondents should prevail. Brief for Petitioner 19. This
concession is, in fact, mandated by our decision in Logan Valley,
in which we specifically held that members of the public may
exercise their First Amendment rights on the premises of a
shopping center that is the functional equivalent of a business
district if their activity is 'generally consonant with the use to
which the property is actually put.' 391 U.S., at 320, 88 S.Ct.,
at 1609. If the property of Lloyd Center is generally open to
First Amendment activity, respondents cannot be excluded.

Page 579

On Veterans Day, Lloyd Center allows organizations to parade
through the Center with flags, drummers, and color guard units and
to have a speaker deliver an address on the meaning of Veterans
Day and the valor of American solidiers. Presidential candidates
have been permitted to speak without restriction on the issues of
the day, which presumably include war and peace. The American
Legion is annually given permission to sell poppies in the Mall
because Lloyd Center believes that 'veterans . . . deserves (sic)
some comfort and support by the people of the United States.'3 In
light of these facts, I perceive no basis for depriving
respondents of the opportunity to distribute leaflets inviting
patrons of the Center to attend a meeting in which different
points of view would be expressed from those held by the
organizations and persons privileged to use Lloyd Center as a
forum for parading their ideas and symbols.

I believe that the lower courts correctly held that
respondents' activities were directly related in purpose to the
use to which the shopping center was being put. In my view,
therefore, this case presents no occasion to consider whether or
not Logan Valley should be extended. But, the Court takes a
different view and concludes that Lloyd Center was never open to
First Amendment activity. Even if I could agree with the Court on
this point, I would not reach a different result in this case.

B. If respondents had distributed handbills complaining about
one or more stores in Lloyd Center or about

Page 580

the Center itself, petitioner concedes that our decision in Logan
Valley would insulate that conduct from proscription by the
Center.4 I cannot see any logical reason to treat differently
speech that is related to subjects other than the Center and its
member stores.

We must remember that it is a balance that we are striking—a
balance between the freedom to speak, a freedom that is given a
preferred place in our hierarchy of values, and the freedom of a
private property owner to control his property. When the competing
interests are fairly weighed, the balance can only be struck in
favor of speech.

Members of the Portland community are able to see doctors,
dentists, lawyers, bankers, travel agents, and persons offering
countless other services in Lloyd Center. They can buy almost
anything that they want or need there. For many Portland citizens,
Lloyd Center will so completely satisfy their wants that they will
have no reason to go elsewhere for goods or services. If speech is
to reach these people, it must reach them in Lloyd Center. The
Center itself recognizes this. For example, in 1964 its director
of public relations offered candidates for President and Vice
President the use of the center for political speeches, boasting
'that our convenient location and setting would provide the
largest audience (the candidates) could attract in Oregon.' App.
187.

For many persons who do not have easy access to television,
radio, the major newspapers, and the other forms of mass media,
the only way they can express themselves to a broad range of
citizens on issues of general public concern is to picket, or to
handbill, or to utilize other

Page 581

free or relatively inexpensive means of communication. The only
hope that these people have to be able to communicate effectively
is to be permitted to speak in those areas in which most of their
fellow citizens can be found. One such area is the business
district of a city or town or its functional equivalent.5 And this
is why respondents have a tremendous need to express themselves
within Lloyd Center.

Petitioner's interests, on the other hand, pale in
comparison. For example, petitioner urges that respondents' First
Amendment activity would disturb the Center's customers. It is
undisputed that some patrons will be disturbed by any First
Amendment activity that goes on, regardless of its object. But,
there is no evidence to

Page 582

indicate that speech directed to topics unrelated to the shopping
center would be more likely to impair the motivation of customers
to buy than speech directed to the uses to which the Center is
put, which petitioner concedes is constitutionally protected under
Logan Valley. On the contrary, common sense would indicate that
speech that is critical of a shopping center or one or more of its
stores is more likely to deter consumers from purchasing goods or
services than speech on any other subject. Moreover, petitioner
acknowledges that respondents have a constitutional right to
'leaflet' on any subject on public streets and sidewalks within
Lloyd Center. It is difficult for me to understand why leafletting
in the Mall would be so much more disturbing to the Center's
customers.

I also find patently frivolous petitioner's argument that if
handbilling in the Mall is permitted, Lloyd Center would face
inordinate difficulties in removing litter from its premises. The
District Court found that respondents' activities were
litter-free. Assuming, arguendo, that if respondents had been
permitted to continue their activities, litter might have
resulted, I think that it is immediately apparent that even if
respondents confined their activities to the public streets and
sidewalks of the Center as Lloyd's private police suggested,
litter would have been a problem as the recipients of the
handbills carried them to the shopping and parking areas.
Petitioner concedes that it would have had to remove this litter.
There is no evidence that the amount of litter would have
substantially increased if respondents distributed the leaflets
within the Mall. But, even assuming that the litter might have
increased, that is not a sufficient reason for barring First
Amendment activity. See, e.g., Schneider v. State of New Jersey,
308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). If petitioner is
truly concerned about litter, it should accept a previous
suggestion by this Court and prosecute those

Page 583

who throw handbills away, not those who use them for communicative
purposes.6 Id., at 162, 60 S.Ct., at 151.

In sum, the balance plainly must be struck in favor of
speech.

C. Petitioner's other grounds for denying respondents access
to the Mall can be dealt with quickly. The assertion is made that
petitioner had the right to regulate the manner in which First
Amendment activity took place on its property, and that because
the public streets and sidewalks inside the Center offered
sufficient access to the public, it was permissible to deny
respondents use of the Mall. The District Court found that certain
stores in the Center could only be reached by using the private
walkways of the Mall. Those persons who drove into the Center,
parked in the privately owned parking lots, and who entered the
stores accessible only through the Mall could not be safely
reached from the public streets and sidewalks. Hence, the District
Court properly found that the Mall was the only place where
respondents had reasonable access to all of Lloyd Center's
patrons.⁷ 308 F.Supp., at 131. At one point in this

Page 584

litigation, petitioner also attempted to assert that it was
entitled to bar respondents' distribution of leaflets on the
ground that the leaflets violated the Selective Service laws. The
District Court found that this contention was without merit. 308
F.Supp., at 132—133. It seems that petitioner has abandoned the
contention in this Court. In any event, it is meritless for the
reasons given by the District Court.

III

In his dissenting opinion in Logan Valley, 391 U.S. 308, at
339, 88 S.Ct. 1601, at 1618, 20 L.Ed.2d 603, Mr. Justice White
said that the rationale of that case would require affirmance of a
case like the instant one. Mr. Justice White, at that time, was
convinced that our decision in Logan Valley, incorrect though he
thought it to be, required that all peaceful and nondisruptive
speech be permitted on private property that was the functional
equivalent of a public business district.

As stated above, I believe that the earlier view of Mr.
Justice White is the correct one, that there is no legitimate way
of following Logan Valley and not applying it to this case. 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.

Page 585

While the majority is obviously troubled by the rationale of
Logan Valley, it is interesting that none of the participants in
this litigation have experienced any similar difficulty. Lloyd
Corp. urges that Logan Valley was correctly decided, that it
struck a balance that the First Amendment required us to strike,
and that it has fully complied with Logan Valley with respect to
labor activity. The American Retail Federation urges in its Brief
as amicus curiae that a balance must be struck between the
property interests of shopping center owners and the First
Amendment interests of shopping center users. It does not urge
that Logan Valley was incorrectly decided in any way.

It is true that Lloyd Corp. and the American Retail
Federation ask the Court to distinguish this case from Logan
Valley, but what is more important is that they recognize that
when massive areas of private property are opened to the public,
the First Amendment may come into play. They would like, of
course, to limit the impact of speech on their private property,
but whether or not they can do so consistently with the First
Amendment is a question that this Court must resolve.

We noted in Logan Valley that the large-scale movement of
this country's population from the cities to the suburbs has been
accompanied by the growth of suburban shopping centers. In
response to this phenomenon, cites like Portland are providing for
large-scale shopping areas within the city. It is obvious that
privately owned shopping areas could prove to be greatly
advantageous to cities. They are totally self-sufficient, needing
no financial support from local government; and if, as here, they
truly are the functional equivalent of a public business area, the
city reaps the advantages of having such an area without paying
for them. Some of the advantages are an increased tax base, a
drawing attraction for residents, and a stimulus to further
growth.

Page 586

It would not be surprising in the future to see cities rely
more and more on private businesses to perform functions once
performed by governmental agencies. The advantage of reduced
expenses and an increased tax base cannot be overstated. As
governments rely on private enterprise, public property decreases
in favor of privately owned property. It becomes harder and harder
for citizens to find means to communicate with other citizens.
Only the wealthy may find effective communication possible unless
we adhere to Marsh v. Alabama and continue to hold that '(t)he
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,'
326 U.S. 276, at 506, 66 S.Ct. 276, at 278.

When there are no effective means of communication, free
speech is a mere shibboleth. I believe that the First Amendment
requires it to be a reality. Accordingly, I would affirm the
decision of the Court of Appeals.