424 U.S. 507, 517-18, 96 S. Ct. 1029, 1035-36, 47 L. Ed. 2d 196, 205-06 (1976)
Scott Hudgens owns the North DeKalb Shopping Center in suburban Atlanta, Georgia. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area that can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to businesses such as the Butler Shoe Company store that can be entered only from the interior mall.1
In January 1971, warehouse employees of the Butler Shoe Company went on strike to protest the company's failure to agree to demands made by their union in contract negotiations. The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center.2
On January 22, 1971, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing, and the pickets departed.3
The union subsequently filed with the National Labor Relations Board an unfair labor practice charge against Hudgens. After the Board initially entered a cease-and-desist order relying on Food Employees v. Logan Valley Plaza, this Court decided Lloyd Corp. v. Tanner and Central Hardware Co. v. NLRB, leading the Court of Appeals to remand the case to the Board for reconsideration. Upon remand, an Administrative Law Judge made findings that Hudgens had committed an unfair labor practice. The Board agreed with those findings and recommendations though on somewhat different reasoning. The Court of Appeals enforced the Board's cease-and-desist order, and this Court granted certiorari to consider the questions presented.4
Whether the shopping center owner's threat to arrest striking employees for trespassing violated the National Labor Relations Act?5
Under the National Labor Relations Act the task of the Board, subject to review by the courts, is to resolve conflicts between section 7 rights and private property rights and to seek a proper accommodation between the two.6
No. The Board's order rested on a First Amendment theory drawn from Logan Valley that the Court has now rejected.7 Because the constitutional premise has been removed, the case must be decided exclusively under the statutory criteria of the National Labor Relations Act, with the Board bearing primary responsibility for striking the proper accommodation between section 7 rights and private property rights.8
The case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board for consideration under the statutory criteria of the National Labor Relations Act alone.9
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall would affirm the judgment of the Court of Appeals on purely statutory grounds.10 He concludes that alternatives to picketing inside the mall were either unavailable or inadequate under the ready-availability standard of Babcock & Wilcox.11 In his view the intended audience could not be reached effectively by newspapers, radio, television, direct mail, handbills, billboards, or picketing on public rights-of-way without inviting secondary effects or safety problems.12
He therefore finds the picketing protected by section 7 and would enforce the Board's order without reaching any constitutional question.13
Whether the First Amendment protects the right of labor union members to picket on the private property of a shopping center?14
The constitutional guarantee of free speech protects against state action, not private action, and there was no governmental action in this case.15
No. The established facts demonstrate that the North DeKalb Shopping Center is privately owned by Scott Hudgens and that the threat of arrest for trespass originated from the owner's agent, not from any state official.16 The picketing occurred entirely within the enclosed mall.17 Because the First Amendment constrains only governmental conduct, it confers no right on the striking employees to use Hudgens's private property for their labor message.18 The shopping center is not the functional equivalent of a municipality, and the owner's decision to exclude the pickets therefore raises no constitutional issue.19
The First Amendment does not protect the right of labor union members to picket on the private property of a shopping center.20
Related opinions on this issue
Joined by The Chief Justice
Justice Powell joins the opinion of the Court.21 He agrees with Justice White that Lloyd Corp. v. Tanner did not overrule Food Employees v. Logan Valley Plaza and that the present case can be distinguished narrowly from Logan Valley.22 Nevertheless he has joined the opinion of the Court today.23
Justice Powell notes that the law in this area has been less than clear since Logan Valley analogized a shopping center to the company town in Marsh v. Alabama.24 Mr. Justice Black, the author of the Marsh opinion, thought the decisions were irreconcilable.25 Upon more mature thought, Justice Powell has concluded that the Court would have been wiser in Lloyd to have confronted this disharmony rather than draw distinctions based upon attenuated factual differences.26 He finds that the clarification of the law provided by the Court's opinion today is desirable.27
Justice White concurs in the result but does not join the opinion of the Court.28 He finds it unnecessary to overrule Food Employees v. Logan Valley Plaza.29 The First Amendment protection established by Logan Valley was expressly limited to picketing directed specifically at a store within the shopping center concerning the manner in which that particular store was being operated.30
The picketing here concerned the operation of a warehouse not located on the center's premises and thus fell outside Logan Valley's limited holding.31 The First Amendment therefore provides no protection for the picketing in issue, and the Court need say no more.32
Whether Food Employees v. Logan Valley Plaza remains good law with respect to First Amendment protections for picketing activity on shopping center property?33
The rationale of Logan Valley did not survive the Court's decision in the Lloyd case. To the extent that Logan Valley holds that the First Amendment confers a right to engage in the type of handbilling activity involved in this case on the private property of a shopping center owner, it is overruled.34
No. The established facts of the present dispute are indistinguishable in principle from those in Lloyd. The picketing was unrelated to the shopping center itself, and the owner had a uniform policy against all handbilling and picketing on the property.35 The Court in Lloyd rejected the functional-equivalence reasoning that had supported Logan Valley. The ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley.36
Because the shopping center remains private property and the First Amendment applies only to state action, the Logan Valley doctrine cannot stand.37
Food Employees v. Logan Valley Plaza is overruled to the extent that it holds that the First Amendment confers a right to engage in the type of picketing activity involved in this case on the private property of a shopping center owner.38
Related opinions on this issue
Joined by Justice Brennan
Justice Marshall dissents from the overruling of Logan Valley.39 He maintains that Logan Valley was correctly decided and that Lloyd and Logan Valley remain reconcilable.40 In his view Logan Valley should continue to protect picketing that is directly related to the use to which the shopping center property is put and for which no other reasonable opportunity to convey the message exists.41
He argues that the majority's formalistic approach to private property ignores the functional displacement of traditional public forums that occurs when an owner opens a large shopping center to the public.42