326 U.S. 501 (1946), 114, Marsh v. Alabama

Docket Nº:No. 114
Citation:326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265
Party Name:Marsh v. Alabama
Case Date:January 07, 1946
Court:United States Supreme Court

Page 501

326 U.S. 501 (1946)

66 S.Ct. 276, 90 L.Ed. 265




No. 114

United States Supreme Court

Jan. 7, 1946

Argued December 6, 1945



1. A state can not, consistently with the freedom of religion and the press guaranteed by the First and Fourteenth Amendments, impose criminal punishment on a person for distributing religious literature on the sidewalk of a company-owned town contrary to regulations of the town's management, where the town and its shopping district are freely accessible to and freely used by the public in general, even though the punishment is attempted under a state statute making it a crime for anyone to enter or remain on the premises of another after having been warned not to do so. Pp. 502, 505.

Page 502

2. Whether a corporation or a municipality owns or possesses a town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. P. 507.

3. People living in company-owned towns are free citizens of their State and country, just as residents of municipalities, and there is no more reason for depriving them of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen. P. 508.

21 So.2d 558, reversed.

APPEAL from the affirmance of a conviction for violation of a state statute challenged as invalid under the Federal Constitution. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So.2d 564.

BLACK, J., lead opinion

[66 S.Ct. 277] MR. JUSTICE BLACK delivered the opinion of the Court.

In this case, we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that, 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

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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 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.

Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post office, and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows:

This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.

Appellant was warned that she could not distribute the literature without a permit, and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff arrested her, and she was charged in the state court with violating Title

Page 504

14, § 426 of the 1940 Alabama Code, which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected, and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute, as applied, was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. 21 So.2d 558. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So.2d 564, and the case is here on appeal under § 237(a) of the Judicial Code, 28 U.S.C. § 344(a).

Had the title to Chickasaw belonged not to a private, but to a municipal, corporation, and had appellant been arrested for violating a municipal ordinance, rather than a ruling by those appointed by the corporation to manage a company town, it would have been clear that appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U.S. 444, and others which have followed that case,1 neither a State nor a municipality can completely [66 S.Ct. 278] bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the

Page 505

municipality holds legal title to them. Jamison v. Texas, 318 U.S. 413. And we have recognized that the preservation of a free society is so far dependent upon the right of each individual citizen to receive such literature as he himself might desire that a municipality could not, without jeopardizing that vital individual freedom, prohibit door to door distribution of literature. Martin v. Struthers, 319 U.S. 141, 146, 147. From these decisions, it is clear that, had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the State's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.

We do not agree that the corporation's property interests settle the question.2 The State urges, in effect, that

Page 506

the corporation's right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The 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. Cf. Republic Aviation Corp. v. Labor Board, 324 U.S. 793, 798, 802, n. 8. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public, and since their operation is essentially a public function, it is subject to state regulation.3 And, though the issue is not directly analogous to [66 S.Ct. 279] the one before us, we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, supra, 234 U.S. at 326, and cases cited, pp. 328-329; cf. South Carolina Highway Dept. v. Barnwell Bros., 303 U.S. 177. Had the corporation here owned the segment of the four-lane highway which runs parallel to the "business block" and operated the same under a state franchise, doubtless no one would have seriously contended that the corporation's property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. See

Page 507

County Commissioners v. Chandler, 96 U.S. 205, 208; Donovan v. Pennsylvania Co., supra, 199 U.S. at 294; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125. And even had there been no express franchise, but mere acquiescence by the State in the corporation's use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function, and discrimination would certainly have been illegal.4

We do not think it makes any significant constitutional difference as to the relationship between the rights of...

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