Tanner v. Lloyd Corporation, Ltd., 25605.

• Citation: 446 F.2d 545
• Decision Date: 07 July 1971
• Docket Number: No. 25605.,25605.
• Parties: Donald M. TANNER, Betsy Wheeler, and Susan Roberts, Appellees, v. LLOYD CORPORATION, LTD., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

446 F.2d 545 (1971)

Donald M. TANNER, Betsy Wheeler, and Susan Roberts, Appellees, v. LLOYD CORPORATION, LTD., Appellant.

No. 25605.

United States Court of Appeals, Ninth Circuit.

July 7, 1971.

George Black, Jr. (argued), Robert J. Miller, of Black, Kendall, Tremaine, Boothe & Higgins, Portland, Or., for appellant.

Carl R. Neil (argued), Portland, Or., for appellees.

Before ELY and KILKENNY, Circuit Judges, and LINDBERG, District Judge.^*

PER CURIAM:

The appellant and its lessees operate a huge private shopping facility, embracing about fifty acres in the City of Portland, Oregon. The District Court enjoined the appellant from interfering with the appellees' exercise, on the facility premises, of certain peaceful activities which the court found were protected under the guarantees of the First Amendment. The court's legal conclusion followed from its factual determination that the appellant's facility was, in scope, "the functional equivalent of a public business district." Tanner v. Lloyd Corp., Ltd., 308 F.Supp. 128, 130 (D.Ore.1970); cf. Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968). See also 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); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). Since such a factual determination, in relation to a particular case, must necessarily rest upon a consideration of all of the demonstrated circumstances of that case, we have concluded that we are powerless to hold that the critical factual determination which is here involved was clearly erroneous. Accordingly, the judgment is affirmed upon the basis of the District Court's Findings of Fact and the reasoning logically followed therefrom, set forth in the court's Opinion reported at 308 F.Supp. 128 (D.Ore.1970). See also Diamond v. Bland, 3 Cal.3d 653, 477 P.2d 733, 91 Cal.Rptr. 501 (1970), cert. denied sub nom. Homart Dev. Co. v. Diamond, 402 U.S. 988, 91 S.Ct. 1661, 29 L.Ed.2d 153 (1971).

Affirmed.¹

* Hon. William J. Lindberg, United States District Judge, District of Washington, sitting by designation.

1 Our opinion is not, of course, an extension of the holdings of the Supreme Court in Amalgamated Food and Marsh. The extent to which the appellant's facility had been opened to public use is reflected in the District Court's factual determinations. It was found, inter alia, that

"The Mall is open to the general public. In addition, the Corporation invites groups to conduct activities there, if those activities will promote `customer motivation.' It has invited schools to hold football rallies, service organizations to hold Veterans Day ceremonies, and presidential candidates to give speeches during election years.

"The Corporation...