Facts
- Lloyd Corporation, Ltd. owned and operated Lloyd Center, a large privately owned shopping mall in Portland, Oregon, open to the general public for shopping and surrounded by public streets and sidewalks.
- Lloyd Center maintained a no-handbilling rule on mall premises, though it had permitted some limited charitable solicitations and controlled events.
- In November 1968, several individuals distributed anti–Vietnam War leaflets inside the mall inviting people to a draft-protest meeting.
- The leafleting was quiet and orderly and did not create litter.
- After a customer complaint, mall security guards told the leafleters they were trespassing and would be arrested unless they stopped.
- The guards indicated the leafleters could distribute materials on adjacent public sidewalks and streets; the leafleters moved outside and continued there.
- The leafleters sued in federal court for declaratory and injunctive relief, asserting a First Amendment right to leaflet inside the mall.
Issues
- Whether the First Amendment requires a privately owned shopping center open to the public to allow handbilling inside the mall when the message is unrelated to the mall’s operations.
- Whether inviting the public onto private commercial property converts the property into a forum where the owner may not exclude peaceful expressive activity.
- What role the availability of alternative channels of communication plays in evaluating compelled access to private property for speech.
Decision
- The Supreme Court reversed the Ninth Circuit and held that the shopping center could prohibit the handbilling on its property.
- The Court concluded the mall had not been dedicated to public use for general expressive activity and did not lose its private character merely because the public was invited to shop.
- The Court distinguished prior decisions involving a company town and a shopping center dispute where the speech was directly related to a tenant’s operations and effective communication otherwise was not available.
- Because the leafleting was unrelated to the mall’s operations and speakers had adequate alternative means of communication on surrounding public sidewalks and streets, the First Amendment did not require access to the mall’s interior.
Legal Principles
- Constitutional free-speech protections generally constrain governmental action and do not, without more, compel a private property owner to permit expressive activity on its premises.
- Opening private property to the public for commercial purposes does not by itself create a constitutional right of access for speech unrelated to the property’s commercial use.
- Prior cases permitting speech on privately owned property are limited to settings where the property has taken on the attributes of a municipality or where the expressive activity is closely tied to the on-site operations and effective alternatives are lacking.
- When adequate alternative channels of communication exist, compelling access to private property for speech is disfavored, and the owner’s right to exclude may be enforced.
Conclusion
The Court held that a privately owned shopping center open to shoppers may exclude peaceful handbilling that is unrelated to the center’s operations, particularly where speakers can reach their audience from nearby public sidewalks and streets.