Free Speech and the State Action Requirement
The issue: Does the First Amendment reach speech restrictions imposed in company towns?  Does it apply to restrictions on speech in shopping centers? 
As a general rule, the owner of private property is free to restrict expressive activitites of others on the property. You are under no First Amendment obligation to admit people into your living room and then listen to them blow off about any topic of their choice.  Similarly, an owner of a restaurant has no duty to allow persons who dislike the food she serves into the restaurant so the person can annoy customers or discourage others from eating there.

Yet, almost every rule has its exceptions, and this rule is no exception to that rule.  In 1946, the Court considered the issue of the First Amendment's applicability in Chickasaw, Alabama--a company town owned lock, stock, and barrel by Gulf Shipbuilding.  A Jehovah's Witness came to Chicasaw and began distributing religious literature on a street corner.  She was told to stop her activity.  She refused, and was tried and convicted of trespass.  The Court reversed her conviction, concluding that Chicasaw was the functional equivalent of a municipality, the residents of Chicasaw citizens of Alabama, and that the First Amendment fully applied to expressive activities on the company-owned sidewalks and streets of the town.

In 1968, at the height of the liberal Warren Court, the rule in Marsh was extended in Logan Valley to protect expressive activity in the parking lot of a shopping center.  The Court reasoned that shopping centers today function much like the downtown business districts of previous eras.  Today, many people never visits central business districts and if they are to be reached at all, it is only in the suburban shopping complex. 

In 1976, in Hudgens v NLRB, the Court reversed course and overruled Logan Valley.  The Court noted that in a case decided in 1972 it had limited Logan Valley to speech that related in some way to one of the businesses in a shopping center, ruling in 1972 that there was no First Amendment right to engage in anti-war leafletting at a large suburban mall.  The Court concluded that the rationale of Logan Valley had been rejected in 1972, and now it was time to bury Logan Valley altogether.  The Court indicated, however, that the company-town situation of Marsh remains one in which it will protect expressive activities even though they take place on private property.

Hudgens has not been the end of the story.  Several state supreme courts have concluded that the free speech protections of their own state constitutions protect the right of citizens to engage in expressive activities in the public areas of shopping centers.  Most notable, perhaps, is the California Supreme Court's Pruneyard decision.  The Court found constitutional protection for high school students who were soliciting signatures at a 65-store mall opposing a U. N. resolution on "Zionism."  The shopping center owner took the case to the U. S. Supreme Court in 1980, arguing that the California Supreme Court's decision amounted either to a violation of his First Amendment rights or a taking of his private property.  The U. S. Supreme Court unanimously rejected both arguments.

1. Do you see a clear distinction, in terms of First Amendment applicability, between the company-owned town and the large suburban shopping mall?
2.  If you believe that people should have a right to picket or leaflet at shopping malls, what about the large "stand-alone" stores such as Wal-Marts and Targets?
3.  Large numbers of people spend almost all their time either at private homes, private workplaces, privately-owned shopping centers, and other privately-owned venues such as multi-screen movie houses.  They may only very rarely visit the traditional public forum of the downtown business district or public parks.  Shouldn't the First Amendment be interpreted to allow some place to reach these folks through such traditional free speech activities as leafletting?
Marsh v Alabama (1946)
Amalgamated Food Employees Union v Logan Valley Plaza (1968)
Hudgens v NLRB (1976)
Testing Free Speech on the 
Country Club Plaza

Law students test the applicability of the First Amendment to Kansas City's Country Club Plaza.  One student distributes leaflets (left) while another student (right)--with "Club sandwiches, not seals" sign-- talks to a K. C. police officer in front of Alaskan Fur store.

America's oldest (built in the 1920s) privately-owned shopping district is in Kansas City.  Called the Country Club Plaza, the upscale shopping area includes dozens of stores and restaurants occupying more than twenty square blocks in the heart of the city.  Yet title to the land underlying the sidewalks and streets of the Country Club Plaza belongs to a private company.  The area is jointly policed by private security guards and city police. 

After talking about Marsh, Logan Valley, and Hudgens, I often ask students whether they think that the First Amendment would protect expressive activity on the sidewalks and public areas of the Country Club Plaza.  At one time, the owner of the Plaza took the position that it didn't.  Private security guards would tell leafletters, picketers, and other persons engaging in expressive activity to leave or face arrest for trespass. 

One year, three students told me after our class discussion that they would like to test the constitutionality of the Plaza's policy of prohibiting certain expressive activities.  On a Saturday morning, the three students and I travelled the few blocks from the Law School to the Plaza and took up positions on the sidewalk in front of an Alaskan Fur Store.  The students had prepared leaflets describing inhumane treatments of animals associated with the fur industry (such as leg-hold traps) and a sign that said, "Club sandwiches, not seals."  They hoped--and fully expected-- to be arrested. 

Within minutes after arriving at the store, the store owner told the students that they had to leave.  When they refused, he retreated to the store, got on the phone, and called the Plaza's private security force.  Just at that moment however, a Kansas City police officer chanced upon the scene.  He asked to look at the leaflets.  He looked at the sign.  He smiled.  He told us that his father was the president of Kansas City's Humane Society and he admired what the students were doing.  He told us of another fur store in town where we might want to protest later. Then he went into the store and told the owner that the students had a First Amendment right to do what they were doing. 

Admitting defeat, we went off and had a few beers.

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