Marsh v. State of Alabama, No. 114

CourtUnited States Supreme Court
Writing for the CourtBLACK
Citation66 S.Ct. 276,90 L.Ed. 265,326 U.S. 501
Docket NumberNo. 114
Decision Date07 January 1946
PartiesMARSH v. STATE OF ALABAMA

326 U.S. 501
66 S.Ct. 276
90 L.Ed. 265
MARSH

v.

STATE OF ALABAMA.

No. 114.
Argued and Submitted Dec. 7, 1945.
Decided Jan. 7, 1946.

On Appeal from the Court of Appeals of the State of Alabama.

Page 502

Mr. Hayden C. Covington, of Brooklyn, N.Y., for appellants.

Mr. William N. McQueen, of Montgomery, Ala., for appellee.

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

Page 503

the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop 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, Section 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, 2 6 Ala. 539, 21 So.2d 564, and the case is here on appeal under Section 237(a) of the Judicial Code, 28 U.S.C. § 344(a), 28 U.S.C.A. § 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, 58 S.Ct. 666, 82 L.Ed. 949, and others which have followed that case,1 neither a state nor a municipality can completely 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 can not be justified on the ground that the

Page 505

municipality holds legal title to them. Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869. 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, 63 S.Ct. 862, 865, 87 L.Ed. 1313. 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 can not 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. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 985, 987, note 8, 157 A.L.R. 1081. 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 the on 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 & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, supra, 234 U.S. at page 326, 34 S.Ct. at page 823, 58 L.Ed. 1330, and cases cited, 234 U.S. at pages 328, 329, 34 S.Ct. at pages 824, 825; cf. South Carolina State Highway Department v. Barnwell Brothers, 303 U.S. 177, 625, 58 S.Ct. 510, 82 L.Ed. 734. 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

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County Commissioners v. Chandler, 96 U.S. 205, 208, 24 L.Ed. 625; Donovan v. Pennsylvania Co., supra, 199 U.S. at page 294, 26 S.Ct. at page 94, 50 L.Ed. 192; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125, 16 L.Ed. 38. 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 the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a 'business block' in the town and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94 U.S. 324, 340, 24 L.Ed. 224. Whether a corporation or a municipality owns or possesses the 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. As we

Page 508

have heretofore stated, the town of Chickasaw does not function differently from any other town. The 'business block' serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one...

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769 practice notes
  • Lucas v. Wisconsin Electric Power Company, No. 71-1113.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 2, 1972
    ...on by private parties who perform a public function ordinarily performed by a governmental 466 F.2d 665 agency. In Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), a private corporation which owned a "company town" was held to carry on state action. ("In short the town and......
  • United States v. Miller, No. 18-5578
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 3, 2020
    ...(6th Cir. 2006) (citing Jackson v. Metro. Edison Co. , 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ); see Marsh v. Alabama , 326 U.S. 501, 505–09, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Most activities—such as providing electricity, operating a nursing home, or managing a public-acce......
  • A.C.L.U. of Nevada v. City of Las Vegas, No. 05-15667.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 20, 2006
    ...N.W.2d 830 (N.D.1991), to name just a handful, have sold or leased traditional public fora to private entities. See also Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (prohibiting the private owner of a company town from eliminating First Amendment activities from its st......
  • Roberts v. Cameron-Brown Co., Civ. A. No. 174-62.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 4, 1975
    ...nature they become agencies or instrumentalities of the State and subject to its constitutional limitations. . .") and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (a company town endowed with the characteristics of a municipality is limited constitutionally as a govern......
  • Request a trial to view additional results
759 cases
  • Lucas v. Wisconsin Electric Power Company, No. 71-1113.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 2, 1972
    ...on by private parties who perform a public function ordinarily performed by a governmental 466 F.2d 665 agency. In Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), a private corporation which owned a "company town" was held to carry on state action. ("In short the town and......
  • United States v. Miller, No. 18-5578
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • December 3, 2020
    ...(6th Cir. 2006) (citing Jackson v. Metro. Edison Co. , 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) ); see Marsh v. Alabama , 326 U.S. 501, 505–09, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Most activities—such as providing electricity, operating a nursing home, or managing a public-acce......
  • A.C.L.U. of Nevada v. City of Las Vegas, No. 05-15667.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 20, 2006
    ...N.W.2d 830 (N.D.1991), to name just a handful, have sold or leased traditional public fora to private entities. See also Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (prohibiting the private owner of a company town from eliminating First Amendment activities from its st......
  • Roberts v. Cameron-Brown Co., Civ. A. No. 174-62.
    • United States
    • United States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
    • February 4, 1975
    ...nature they become agencies or instrumentalities of the State and subject to its constitutional limitations. . .") and Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (a company town endowed with the characteristics of a municipality is limited constitutionally as a govern......
  • Request a trial to view additional results
7 books & journal articles
  • The Fiction of the First Freedom
    • United States
    • Political Research Quarterly Nbr. 6-2, June 1953
    • June 1, 1953
    ...Jeannette, 319 U.S. 157 (1943); Prince v. Massachusetts, 321 U.S. 158 (1944); Follett v. McCormick, 321 U.S. 573 (1944); Marsh v.Alabama, 326 U.S. 501 (1946); Tucker v. Texas, 326 U.S. 517 (1946); Breard v. Alexandria, 341 U.S. 622 (1951). 13 Mutual Film Corp. v. Industrial Commission of Oh......
  • The Overseas Exchange of Human Rights Jurisprudence: The U.S. Supreme Court in the European Court of Human Rights
    • United States
    • International Criminal Justice Review Nbr. 19-3, September 2009
    • September 1, 2009
    ...Communications, 476 U.S. 488 (1986).Malloy v. Hogan, 378 U.S. 1 (1964).Marckx v. Belgium, 13 June 1979, Series A no. 31.Marsh v. Alabama, 326 U.S. 501 (1946).Mayberry v. Pennsylvania, 400 U.S. 455 (1971).McCleskey v. Kemp, 481 U.S. 279 (1987).McCrudden, C. (2000). A common law of human righ......
  • The Public–Private Distinction: Insights for Public Administration from the State Action Doctrine
    • United States
    • Public Administration Review Nbr. 75-1, January 2015
    • January 1, 2015
    ...267 (1963).Lovell v. City of Grif‌f‌i n, 303 U.S. 444 (1938).Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).Marsh v. State of Alabama, 326 U.S. 501 (1946).Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).National Collegiate Athletic Association v. Tarkanian, 488 U.S. 179 (1988).Nixon v. C......
  • The South Counterattacks: the Anti-Naacp Laws
    • United States
    • Political Research Quarterly Nbr. 12-2, June 1959
    • June 1, 1959
    ...v. Pennsylvania, 319 U.S. 105 (1943); Martin v. Struthers, 319 U.S. 141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Marsh v. Alabama, 326 U.S. 501 (1946); Tucker v. Texas, 326 U.S. 517 (1946); Saia v. New York, 334 U.S. 558 Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. New York, 34......
  • Request a trial to view additional results

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