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Thurgood Marshall Signed Supreme Court Decision, Balancing Property and Free Speech Rights
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We start from the premise that peaceful picketing carried on in a location open generally to the public is … protected by the First Amendment… ‘Ownership does not always mean absolute dominion.’

Freshman Supreme Court Associate Justice Thurgood Marshall’s opinion on a First Amendment case involving union picketers in front of a Pennsylvania supermarket, balancing private property rights and the freedom of speech. The Supreme Court, in a 6-3 decision, overturns the Pennsylvania Supreme Court’s injunction against picketers as too broad.

THURGOOD MARSHALL. Printed Document Signed. Opinion of the Court in Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc., et al., May 20, 1968. With Marshall’s light but clear vertical signature on first page. 35 pp., 5.8 x 9.2 in.

Inventory #23897       Price: $850

Excerpts:

This case presents the question whether peaceful picketing of a business enterprise located within a shopping center can be enjoined on the ground that it constitutes an unconsented invasion of the property rights of the owners of the land… We start from the premise that peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment.

… the restraints on picketing and trespassing approved by the Pennsylvania courts here substantially hinder the communication of the ideas which petitioners seek to express to the patrons of Weis… The sole justification offered… is respondents’ claimed absolute right under state law to prohibit any use of their property by others without their consent.

… we simply repeat what was said in Marsh v. Alabama, 326 U. S. 506, ‘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.’

Logan Valley Mall is the functional equivalent of a ‘business block,’ and, for First Amendment purposes, must be treated in substantially the same manner… “The judgment of the Supreme Court of Pennsylvania is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. “It is so ordered.”

[Justice William O. Douglas, concurring:] “Picketing is free speech plus, the plus being physical activity that may implicate traffic and related matters. Hence, the latter aspects of picketing may be regulated. Thus, the provisions of the injunction in this case which prohibit the picketers from interfering with employees, deliverymen, and customers are proper.... The courts of Pennsylvania are surely capable of fashioning a decree that will ensure noninterference with customers and employees, while enabling the union members to assemble sufficiently close to Weis’ market to make effective the exercise of their First Amendment rights.

[Justice Hugo Black, dissenting:] “I think that this Court should declare unequivocally that Section (a) of the lower court’s injunction is valid under the First Amendment, and that petitioners cannot, under the guise of exercising First Amendment rights, trespass on respondent Weis’ private property for the purpose of picketing.... I would go further, however, and hold that the entire injunction is valid.... I believe that, whether this Court likes it or not, the Constitution recognizes and supports the concept of private ownership of property.... The question is, under what circumstances can private property be treated as though it were public?

[Justice John Marshall Harlan, dissenting:] “On the merits, it seems clear from the facts stated by the Court, and from our past decisions that the petitioners have a substantial preemption claim. However, upon examination of the record, I have come reluctantly to the conclusion that this Court is precluded from reaching the merits of that question because of the petitioners’ failure to raise any such issue in the Pennsylvania Supreme Court. The rule that, in cases coming from state courts, this Court may review only those issues which were presented to the state court is not discretionary, but jurisdictional.

[Justice Byron White, dissenting:] “I am fearful that the Couri’s decision today will be a license for pickets to leave the public streets and carry out their activities on private property, as long as they are not obstructive. I do not agree that, when the owner of private property invites the public to do business with him he impliedly dedicates his property for other uses as well. I do not think the First Amendment, which bars only official interferences with speech, has this reach.

Historical Background

Soon after a mall opened near Altoona, Pennsylvania, Amalgamated Food Employees Local 590 began picketing outside of non-union Weis Supermarket. The mall’s owners, Logan Valley Plaza, Inc., sued, and the Pennsylvania Court of Common Pleas enjoined picketing on the property though just outside the shopping center (for instance, the loading dock). The Pennsylvania Supreme Court affirmed the injunction.

The case was appealed, and argued before the U.S. Supreme Court on March 14, 1968. Bernard Dunau (1920-1975) represented the union, and Robert Lewis (1924-2012) represented the mall owners. The junior member of the court, Thurgood Marshall, wrote the opinion for the six-member majority, which reversed the ruling of the Pennsylvania Supreme Court and remanded the case for further action. Justice William O. Douglas concurred, and Justices Byron White, John Marshall Harlan, and Hugo Black dissented.

The court held that peaceful picketing in a location generally open to the public, even though private property, was protected by the First Amendment. Although picketing could be regulated, it could not be barred under all circumstances on publicly owned property. Because the shopping center was freely accessible to all people in the area, the State could not delegate the power to exclude members of the public wishing to exercise their First Amendment rights there.

Thurgood Marshall (1908-1993) was born in Baltimore, Maryland, the descendant of slaves. In 1930, he graduated from Lincoln University with a bachelor’s degree in humanities, and graduated first in his class from Howard University School of Law in 1933. He began a private law practice in Baltimore and became involved with the National Association for the Advancement of Colored People (NAACP) in 1934. In 1940, he founded the NAACP Legal Defense and Education Fund and argued many civil rights cases before state and federal courts. He was especially effective before the U.S. Supreme Court, where he won 29 out of 32 cases, including the landmark Brown v. Board of Education of Topeka (1954). President John F. Kennedy appointed Marshall to the U.S Court of Appeals for the Second Circuit in 1961, a position he held until 1965, when President Lyndon B. Johnson appointed him as U.S. Solicitor General, the first African American to hold the office. In June 1967, Johnson nominated Marshall to the U.S. Supreme Court, and the Senate confirmed him ten weeks later, making him the first African American member of the Court. He served on the Court for 24 years, compiling a liberal record with strong support for individual rights, especially those of criminal suspects. Marshall retired from the Supreme Court in 1991.


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