Lloyd Corporation, Ltd v. Tanner 8212 492

• Decision Date: 22 June 1972
• Docket Number: No. 71,71
• Parties: LLOYD CORPORATION, LTD., Petitioner, v. Donald M. TANNER et al. —492
• Court: U.S. Supreme Court

407 U.S. 551

92 S.Ct. 2219

33 L.Ed.2d 131

LLOYD CORPORATION, LTD., Petitioner,

v Donald M. TANNER et al.

No. 71—492.

Argued April 18, 1972.

Decided June 22, 1972. 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 66 S.Ct. 276, 90 L.Ed. 265, and Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603, 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. 556—570. 446 F.2d 545, reversed and remanded.

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 (196...