Does a privately owned shopping center violate the First and Fourteenth Amendments by prohibiting the distribution of handbills on its premises when the handbilling is unrelated to the shopping center's operations and alternative public avenues of communication exist?

Lloyd Corp. owns Lloyd Center, a large, modern shopping center in Portland, Oregon, covering about 50 acres, with some 60 commercial tenants, interior privately owned malls and walkways, and extensive parking. The Center is bounded and crossed by public streets with adjacent public sidewalks, but all land and buildings within the complex are privately owned. Lloyd employs 12 security guards commissioned by the city, who wear police-style uniforms and carry handguns. For eight years, Lloyd strictly enforced a policy against distributing handbills within the complex, considering them likely to annoy customers, create litter, and disrupt the atmosphere of the Center. The Center allowed limited use of the malls by certain charitable groups and allowed presidential candidates to speak in the auditorium, but otherwise forbade political use.

On November 14, 1968, five young people, the respondents, quietly distributed handbills in the malls inviting the public to a meeting of the "Resistance Community" to protest the draft and the Vietnam war. There was no littering and one customer complaint. Security guards told them they were trespassing and would be arrested unless they stopped, and suggested they distribute their literature on the public streets and sidewalks outside the Center. Respondents left to avoid arrest, continued handbilling on the public sidewalks, and then filed suit.

Respondents sued Lloyd Corp. in the United States District Court for the District of Oregon, seeking declaratory and injunctive relief. Relying primarily on Marsh v. Alabama and Amalgamated Food Employees Union v. Logan Valley Plaza, the District Court found that the Center is the functional equivalent of a public business district, held that Lloyd's rule against handbilling violated respondents' First Amendment rights, and issued a permanent injunction against interference with handbill distribution. The United States Court of Appeals for the Ninth Circuit affirmed in a per curiam opinion, holding that it was bound by the District Court's factual determination about the Center's character and that Marsh and Logan Valley compelled affirmance. The Supreme Court granted certiorari.

(Powell, J.)

No. A privately owned shopping center does not violate the First and Fourteenth Amendments by prohibiting handbilling unrelated to its operations where adequate alternative avenues of communication exist. The First and Fourteenth Amendments restrict state action, not the action of a private property owner who uses property nondiscriminatorily for private purposes only. The Court has never held that a trespasser or uninvited guest may exercise general rights of free speech on such property, and even public property is not necessarily available for all communicative activities. Adderley v. Florida, 385 U.S. 39 (1966).

Marsh v. Alabama, 326 U.S. 501 (1946), involved a company town that had assumed all the attributes of a municipality and performed municipal functions as a delegate of the State, standing in the shoes of the State. Lloyd Center exercises no comparable municipal functions. Logan Valley was limited to peaceful picketing directly related to the shopping center's own operations, where the pickets would have lacked any reasonable alternative opportunity to reach their intended audience. Neither element exists here. The handbills had no relation to the Center's purposes, and their message was directed to the general public, which could be reached on any public street, sidewalk, or park in Portland.

The Center's invitation to the public is limited to coming to do business with its tenants. It is not an open-ended invitation to use the property for any purpose. A property does not lose its private character because the public is invited to use it for designated purposes, and size alone does not change that character. Differences between a free-standing store and a large shopping center are differences of degree, not principle. The Center is surrounded by 66 linear blocks of public sidewalks, and all who enter or leave must cross public streets, where handbills may conveniently be distributed. Respondents in fact continued handbilling there. Requiring Lloyd to yield where adequate alternatives exist would diminish property rights under the Fifth and Fourteenth Amendments without significantly enhancing free speech. Lloyd's property has not been dedicated to public use so as to give respondents a First Amendment right to handbill there. The judgment is reversed and remanded with directions to vacate the injunction.

Dissent (Marshall, J., joined by Douglas, J., Brennan, J., and Stewart, J.) Lloyd Center is the functional equivalent of a public business district, more clearly so than Logan Valley Plaza, and the majority's distinction between speech related and unrelated to the Center's business has no basis. The courts below found that the Center was already open to a range of expression, including football rallies, presidential candidates, Veterans Day ceremonies, and fundraising by the Salvation Army and American Legion, so respondents could not be excluded merely because the Center disliked their message. The majority answered that political use was otherwise forbidden, that these activities were meant to bring in shoppers, and that the invitation to the public is only to do business with the tenants. Logan Valley's rationale is not limited to speech about the shopping center. Petitioner concedes that handbills critical of the Center would be protected, and there is no logical reason to treat other speech differently. The balance favors speech: persons without access to mass media depend on reaching citizens where they gather, and the Center's own public relations director boasted of its audience. Petitioner's concerns about disturbing customers and litter are weak, since the District Court found respondents' activity litter-free and the findings that the public sidewalks were inadequate to reach all patrons were not clearly erroneous. The majority effectively overrules Logan Valley and Marsh's principle that an owner's rights become circumscribed as the property is opened to the public, and as cities increasingly rely on private enterprise for public functions, free speech will become a "mere shibboleth." The Court of Appeals' judgment should be affirmed.