U.S. Supreme Court Lloyd Corp., Ltd. v. Tanner, 407
U.S. 551 (1972) Lloyd Corp., Ltd. v.
Tanner No. 71-492 Argued April 18, 1972 Decided June 22, 1972 407
U.S. 551 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH
CIRCUIT Syllabus Respondents sought to distribute handbills in the interior mall
area of petitioner's large privately owned shopping center.
Petitioner had a strict no-handbilling rule. Petitioner's security
guards requested respondents under threat of arrest to stop the
handbilling, suggesting that they could resume their activities on
the public streets and sidewalks adjacent to but outside the
center, which respondents did. Respondents, claiming that
petitioner's action violated their First Amendment rights,
thereafter brought this action for injunctive and declaratory
relief. The District Court, stressing that the center is "open to
the general public" and "the functional equivalent of a public
business district," and relying on Marsh v. Alabama, 326 U. S. 501 , and Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 ,
held that petitioner's policy of prohibiting handbilling within the
mall violated respondents' First Amendment rights. The Court of
Appeals affirmed. Held: There has been no dedication of petitioner's
privately owned and operated shopping center to public use so as to
entitle respondents to exercise First Amendment rights therein that
are unrelated to the center's operations, and petitioner's property
did not lose its private character and its right to protection
under the Fourteenth Amendment merely because the public is
generally invited to use it for the purpose of doing business with
petitioner's tenants. The facts in this case are significantly
different from those in Marsh, supra, which involved a
company town with "all the attributes" of a municipality, and Logan Valley, supra, which involved labor picketing
designed to convey a message to patrons of a particular store, so
located in the center of a large private enclave as to preclude
other reasonable access to store patrons. Under the circumstances
present in this case, where the handbilling was unrelated to any
activity within the center and where respondents had adequate
alternative means of communication, the courts below erred in
holding those decisions controlling. Pp. 407 U. S.
556 -570.

															446 F.2d 545, reversed and remanded. Page 407 U. S. 552 POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL,
J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and
STEWART, JJ., joined, post, p. 407 U. S.
570 .

															MR. JUSTICE POWELL delivered the opinion of the Court.

															This case presents the question reserved by the Court in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (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 (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 407 U. S. 553 violates rights of private property protected by the Fifth and
Fourteenth Amendments. 404 U.S. 1037 (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 statuary, fountains, benches, and other amenities are located.
There is no vehicular traffic on the malls. An architectural Page 407 U. S. 554 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. . . . [ Footnote 1 ]"

															Although the stores close at customary hours, the malls are not
physically closed, as pedestrian window shopping is encouraged
within reasonable hours. [ Footnote
2 ] LIoyd 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 407 U. S. 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. [ Footnote 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 407 U. S. 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. [ Footnote 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 (1946), and Amalgamated
Food Page 407 U. S. 557 Employees Union v. Logan Valley Plaza, 391 U.
S. 308 (1968), compelled affirmance. [ Footnote 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 cannot 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 407 U. S. 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 326 U. S.
502 -503. 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. [ Footnote 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 Valley 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 407 U. S. 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 391 U. S. 315 .
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." Ibid. 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 (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 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 391 U. S. 318 .
But the Court was careful not to go further and say that, for all
purposes and uses, the privately owned streets, Page 407 U. S. 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.
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." Id. at 391 U. S.
319 -320.

															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 391 U. S. 320 n. 9.

															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 391 U. S. 321 ,
and that the public berms and sidewalks were "from 350 to 500 feet
away from the Weis store." Id. at 391 U. S. 322 .
This distance made it difficult "to communicate [with] patrons of
Weis" and "to limit [the] effect [of Page 407 U. S. 561 the picketing] to Weis only." Id. at 391 U. S. 322 ,
323. [ Footnote 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." [ Footnote 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 407 U. S. 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 326 U. S. 502 .
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. [ Footnote 9 ] As Mr.
Justice Black's dissent in Logan Valley emphasized, this
would be an incorrect interpretation of the Court's decision in Marsh: [ Footnote
10 ]

															" Marsh was never intended to apply to this kind of
situation. Marsh dealt with the very special Page 407 U. S. 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 326 U. S. 502 . 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 326 U. S. 508 . 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 391 U. S.
330 -331.

															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 391 U. S. 320 n. 9, 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 407 U. S. 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. [ Footnote 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 no 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 407 U. S. 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 391 U. S.
338 .

															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 407 U. S. 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. [ Footnote
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 407 U. S. 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 necessary, Page 407 U. S. 568 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 (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 petitioner rely on, Cox v. Louisiana, [379 U.S.] at 379 U. S.
554 -555 and 379 U. S.
563 -564. 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 385 U. S.
47 -48.

															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 407 U. S. 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 semi-official municipal
functions as a delegate of the State. [ Footnote 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 there 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 regulation Page 407 U. S. 570 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. [ Footnote 1 ]

															App. 254.

															[ Footnote 2 ]

															The manager of the Center testified:

															"Q. Turning now to the general policy in operation of the Lloyd
Center, it's true that the malls and walkways within the center are
open 24 hours a day; is that right?"

															"A. Well, they aren't physically closed such as putting a gate
across, no. But, they are not -- when people are there after hours,
they are watched. And, if it is too late at night, they are told
the places are closed and they should leave."

															"Q. If I wanted to walk through the center malls of Lloyd Center
at 3:00 in the morning, would anyone stop me?"

															"A. Depending on who the officer was on duty as to what he is
supposed to do. But they would have made inquiry and followed you
to see what you are doing."

															App. 49.

															[ Footnote 3 ]

															The manager of the Center, explaining why presidential
candidates were allowed to speak, said: "We do that for one reason,
and that is great public interest. It . . . brings a great many
people to Lloyd Center who may shop before they leave." App.
51.

															[ Footnote 4 ]

															The city of Portland has an ordinance which makes it unlawful to
trespass on private property. Portland, Ore., Police Code §
16613.

															[ Footnote 5 ]

															The Court of Appeals also relied on Wolin v. Port of New
York Authority, 392 F.2d 83 (CA2 1968).

															[ Footnote 6 ]

															In commenting on the necessity for citizens who reside in
company towns to have access to information, the Court said:

															"Many people in the United States live in company-owned towns.
These people, just as residents of municipalities, are free
citizens of their State and country. Just as all other citizens,
they must make decisions which affect the welfare of community and
nation. To act as good citizens, they must be informed."

															326 U.S. at 326 U. S.
508 .

															[ Footnote 7 ]

															The Court also commented on the increasing role of shopping
centers and on the problem which they would present with respect to
union activities if picketing were totally proscribed within
shopping center areas:

															"Business enterprises located in downtown areas [on public
streets and sidewalks] would be subject to on-the-spot public
criticism for their [labor] practices, but businesses situated in
the suburbs could largely immunize themselves from similar
criticism by creating a cordon sanitaire of parking lots
around their stores."

															391 U.S. at 391 U. S.
324 -325. The concurring opinion of MR. JUSTICE DOUGLAS
also emphasized the related purpose of the picketing in Logan
Valley: "Picketing in regard to labor conditions at the Weis
Supermarket is directly related to that shopping center business."
391 U.S. at 391 U. S.
326 .

															[ Footnote 8 ] 308 F.
Supp. 128 , 130, 132 (Ore.1970); 446 F.2d 545, 546 (CA9
1971).

															[ Footnote 9 ] Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 , 391 U. S. 319 (1968).

															[ Footnote 10 ]

															As Mr. Justice Black was the author of the Court's opinion in Marsh, his analysis of its rationale is especially
meaningful.

															[ Footnote 11 ]

															The injunction issued against Lloyd is comprehensive. It enjoins
Lloyd (and others in active concert or participation with it)
from

															"preventing or interfering with the distribution of
noncommercial handbills in a peaceful and orderly manner in the
malls and walkways within Lloyd Center at times when they are open
to general public access."

															There is no limitation as to type of literature distributed
except that it must be "noncommercial." Nor, indeed, is there any
limitation in this injunction as to the number of persons
participating in such activities or the frequency thereof.
Irrespective of how controversial, offensive, distracting, or
extensive the distributions may be, Lloyd has been ordered to allow
all noncommercial handbilling which anyone desires to undertake
within its private premises.

															[ Footnote 12 ]

															The Court's opinion in Logan Valley described the
obstacles resulting from the location of the Weis store in the
shopping center, and its relation to public streets and
sidewalks:

															"Petitioners' picketing was directed solely at one establishment
within the shopping center. The berms surrounding the center are
from 350 to 500 feet away from the Weis store. All entry onto the
mall premises by customers of Weis, so far as appears, is by
vehicle from the roads alongside which the berms run. Thus, the
placard bearing the message which petitioners seek to communicate
to patrons of Weis must be read by those to whom they are directed
either at a distance so great as to render them virtually
indecipherable -- where the Weis customers are already within the
mall -- or while the prospective reader is moving by car from the
roads onto the mall parking areas via the entranceways cut through
the berms. In addition, the pickets are placed in some danger by
being forced to walk along heavily traveled roads along which
traffic moves constantly at rates of speed varying from moderate to
high. Likewise, the task of distributing handbills to persons in
moving automobiles is vastly greater (and more hazardous) than it
would be were petitioners permitted to pass them out within the
mall to pedestrians."

															391 U.S. at 391 U. S.
321 -322.

															[ Footnote 13 ]

															Mr. Justice Black, dissenting in Logan Valley, emphasized the distinction between a privately owned shopping
center and the "company town" involved in Marsh, which he
said had assumed " all the attributes" of a municipality.
391 U.S. at 391 U. S. 332 .
(Original emphasis.)

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE 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 407 U. S. 571 Relying primarily on our very recent decision in Amalgamated
Food Employees Union v. Logan Valley Plaza, 391 U.
S. 308 (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 (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 off-street 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 Mall, in the words
of the District Court,

															"is a multi-level complex of buildings, parking facilities,
sub-malls, sidewalks, stairways, elevators, escalators, Page 407 U. S. 572 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.
[ Footnote 2/1 ]

															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 407 U. S. 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." Id. at 326 U. S. 506 .
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 sufficient Page 407 U. S. 574 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 326 U. S.
509 .

															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 391 U. S. 311 .
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. [ Footnote 2/2 ]
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 required, Page 407 U. S. 575 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 391 U. S. 319 .
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 407 U. S. 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 407 U. S. 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 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, consistently Page 407 U. S. 578 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 391 U. S. 320 n. 9. 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 391 U. S. 320 .
If the property of Lloyd Center is generally open to First
Amendment activity, respondents cannot be excluded. Page 407 U. S. 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 soldiers. 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." [ Footnote 2/3 ] 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 opened 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 407 U. S. 580 the Center itself, petitioner concedes that our decision in Logan Valley would insulate that conduct from proscription
by the Center. [ Footnote 2/4 ] 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 407 U. S. 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. [ Footnote 2/5 ] 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 407 U. S. 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, 308 U. S. 147 (1939). If petitioner is truly concerned about litter, it should
accept a previous suggestion by this Court and prosecute those Page 407 U. S. 583 who throw handbills away, not those who use them for
communicative purposes. [ Footnote
2/6 ] Id. at 308 U. S.
162 .

															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. [ Footnote 2/7 ] 308 F. Supp. at 131. At one
point in this Page 407 U. S. 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. at 391 U. S. 339 ,
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 407 U. S. 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, cities 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 407 U. S. 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. at 326 U. S.
506 .

															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.

															[ Footnote 2/1 ]

															There is some conflict in the testimony as to precisely what the
guards told respondents with respect to the likelihood that they
would be arrested if they did not leave the Mall. The Agreed Facts
in the Pretrial Order states that the guards said that respondents
could be arrested if they refused to leave. The District Court
found that the guards caused respondents to believe that they would
be arrested, and that this was the reason that they left the Mall.
The Court of Appeals affirmed this finding, and it is supported by
the record.

															[ Footnote 2/2 ] Logan Valley involved both picketing and handbilling,
since the effect of the state court injunction was to ban both
forms of expression. 391 U.S. at 391 U. S.
322 -323 and n. 12. We made it clear in Logan
Valley that, while there were obvious differences between
picketing and handbilling, both involved a modicum of a burden on
property. We held that neither could be barred from a shopping
center that was the functional equivalent of a public business
district. Id. at 391 U. S.
315 -316.

															[ Footnote 2/3 ]

															App. 62 (testimony of R. Horn, manager of Lloyd Center). It is
widely known that the American Legion is a Veteran's organization. See 1 Encyclopedia of Associations 997 (7th ed.1972). It
is also common knowledge that the poppy is the symbol sold by the
Legion to finance various of its activities. At times, the proceeds
from selling poppies were used to finance lobbying and other
activities directed at increasing the military capacity of the
United States. R. Jones, A History of the American Legion 330-332
(1946).

															[ Footnote 2/4 ]

															The record indicates that, when unions have picketed inside the
Mall, Lloyd Center has voiced no objections. App. 108 (testimony of
R. Horn, manager of Lloyd Center). It is apparent that petitioner
has no difficulty in accepting our decision in Logan
Valley and in complying with it.

															[ Footnote 2/5 ]

															It is evident from the Court's opinion that the majority fails
to grasp the essence of our decision in Logan Valley. The
Court notes that there is a difference between a free-standing
store and one located in a shopping center, and between small
stores and extremely large ones, but suggests that, because the
difference is "of degree, not of principle" it is unimportant. This
flies directly in the face of Logan Valley, where we said
that as private property expands to the point where it becomes, in
reality, the business district of a community, the rights of the
owners to proscribe speech on the part of those invited to use the
property diminish. When the Court states that this was broad
language that was somehow unnecessary to our decision, it betrays
its misunderstanding of the holding.

															As Mr. Justice Black and MR. JUSTICE WHITE both pointed out in
dissent in Logan Valley, there was really only one issue
before the Court -- i.e., whether the Logan Valley Plaza
was prevented by the Fourteenth Amendment from inhibiting speech
even though it was private property. The critical issue was whether
the private property had sufficient "public" qualities to warrant a
holding that the Fourteenth Amendment reached it. We answered this
question in the affirmative, and the answer was the pivotal factor
in our decision. Every member of the Court was acutely aware that
we were dealing with degrees, not absolutes. But we found that
degrees of difference can be of constitutional dimension. While any
differences between the instant case and Logan Valley are
immaterial in my view, such differences as there are make this a
clearer case of illegal state action.

															[ Footnote 2/6 ]

															Since petitioner's security guards have full police power, they
can enforce state laws against littering, just as they have
enforced laws against loitering in the past. App. 45 (testimony of
R. Horn, manager of Lloyd Center).

															[ Footnote 2/7 ]

															The Court implies that it is willing to reverse both lower
courts and hold that their findings that alternative forums for
leafletting in Lloyd Center were either not as effective as the
Mall or dangerous are clearly erroneous. I too have read the record
in this case, and I find no warrant for such a holding. The record
plainly shows that it was impossible to reach many of the shoppers
in the Center without using the Mall unless respondents were
willing to approach cars as they were leaving the center. The
District Court and the Court of Appeals took the view that
requiring respondents to run from the sidewalk, to knock on car
windows, to ask that the windows be rolled down so that a handbill
could be distributed, to offer the handbill, run back to the
sidewalk, and to repeat this gesture for every automobile leaving
Lloyd Center involved hazards not only to respondents but also to
other pedestrians and automobile passengers. Having never seen
Lloyd Center, except in photographs contained in the record, and
having absolutely no idea of the amount of traffic entering or
leaving the Center, the Court cavalierly overturns the careful
findings of facts below. This, in my opinion, exceeds even the most
expansive view of the proper appellate function of this Court.