No, threatening to arrest the protesters does not violate their free speech rights. The First Amendment protects you from the government silencing your speech, not from private property owners. A mall is private property. A long time ago, the Court said a private 'company town' that acts just like a real town has to respect free speech, but a shopping mall isn't a town. Therefore, this isn't a constitutional issue. It's a labor issue that should be solved by looking at labor laws, not the Constitution.

I agree with the decision. For years, the law has been confusing about whether malls are like public parks for free speech. This decision finally clears it up: they are not. It's better to have a clear rule that separates constitutional free speech from private property labor disputes.

I agree the mall owner wins, but we didn't need to make such a big new rule. The old rule already said that for a protest to be protected at a mall, it had to be about that specific store's operations. This protest was about a warehouse somewhere else. So, under the old rule, the protesters would lose anyway. There was no need to overturn the old case.

Yes, the owner's threat did violate their rights. The Court shouldn't have even decided the free speech question. But since it did, it got it wrong. Malls have become the new 'town squares' where people gather and shop. If you want to protest a business, the mall is often the only place to do it effectively. By letting mall owners ban all protests, the Court is taking away an important place for people to exercise their freedom of speech.

No, the Constitution's free speech protection does not apply here because it only stops the government from limiting speech, not private property owners. The rights of the mall owner and the union picketers depend only on the labor laws Congress passed, not the Constitution. The Court says the balance between workers' rights and property owners' rights under the labor laws can be different in different situations. It also says that while public sidewalks and parks have been places for free speech, privately owned malls have not been seen that way.

The Court should not have overruled its earlier decision and should have ruled for the picketers based just on the labor laws, not the Constitution. The Constitution's free speech protections should apply to some degree in privately owned malls that are open to the public, because malls have replaced public streets and sidewalks as gathering places. Mall owners have taken over control of spaces that were traditionally protected by the Constitution.

Although the Court's decision today does not expressly overrule the earlier mall picketing case, the two decisions do not fit together well. The Court should have directly addressed this conflict in the previous case. Today's decision helpfully sorts out the confusion by separating the constitutional and labor law issues in these kinds of cases.

The Court did not need to overrule the earlier decision that allowed some picketing at malls, because that decision only protected picketing aimed at a specific store in the mall, which is not the situation here. The picketing here was about a warehouse not located at the mall. The Court only needed to say the Constitution does not protect this particular picketing.

"It is, of course, commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state."

In general, though, the First Amendment does not guarantee a right to free expression on private property.

The court commented that if a shopping center is the functional equivalent of a municipality, as Logan Valley held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content since a municipality cannot discriminate in the regulation of expression on the basis of the content.

The locus of the accommodation between Section 7 rights and private property rights "may fall at different points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context."

—the Supreme Court held that employees had no first amendment right to enter a privately owned shopping center in order to advertise their strike against a retail store located therein.

Indeed, as the Court expressly stated in Hudgens: "It is, of course a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free …

" `[S] treets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.'"

In contending that "the rationale of Logan Valley did not survive the Court's decision in the Lloyd case,"

As the Supreme Court noted when considering the actions of a shopping mall operator with respect to the employees of the tenants of the mall, mall operators are "employer [s] engaged in commerce within the meaning of §§ 2 (6) and (7) of the [NLRA]," and "statutory `employer [s]'may violate § 8 (a)(1) with respect to employees other than [their] own. "

The First Amendment's protection of free speech "is a guarantee only against abridgment by government, federal or state."

No. A private shopping center owner’s threat to arrest picketers does not violate the First Amendment because the constitutional guarantee of free speech does not apply to privately owned shopping centers. The Court's prior holding in *Food Employees v. Logan Valley Plaza*, which extended First Amendment protections to picketing in a shopping center, is explicitly overruled. The Court reasoned that the First Amendment protects against abridgment by the government, not by private property owners. The exception established in *Marsh v. Alabama* for a 'company town' that assumes all functions of a municipality does not apply to a shopping center, which has not taken on the full spectrum of public attributes. The reasoning of *Lloyd Corp. v. Tanner*, which denied First Amendment rights to anti-war hand-billers in a mall, is fundamentally inconsistent with *Logan Valley* and controls the outcome here. Therefore, the dispute must be resolved exclusively under the statutory framework of the National Labor Relations Act (NLRA), which requires the National Labor Relations Board (NLRB) to accommodate the employees' Section 7 rights with the owner's private property rights.

Agrees with the majority's conclusion and joins the opinion. While *Lloyd Corp. v. Tanner* did not explicitly overrule *Logan Valley*, it should have. The legal principles of *Marsh*, *Logan Valley*, and *Lloyd* cannot be harmonized in a principled way. Today's decision is desirable because it clarifies the confusion by accepting that *Logan Valley* was an improper extension of *Marsh* and by sharply distinguishing First Amendment analysis from labor law analysis in these cases.

Agrees with the result but not with the majority's reasoning to overrule *Logan Valley*. The Court's holding in *Logan Valley* was expressly limited to picketing directly related to the operations of a specific store within the shopping center. Here, the picketing concerned a dispute at a separate warehouse, not the operations of the mall store itself. Therefore, this case falls outside the narrow protections of *Logan Valley*, and there is no need to overrule that precedent to find that the First Amendment does not protect the picketing at issue.

Yes. The Court should not have reached the constitutional question, as the case could have been resolved on purely statutory grounds under the NLRA. On the constitutional issue, *Logan Valley* was correctly decided and should not be overruled, as *Lloyd Corp. v. Tanner* only limited its application, it did not reject its core rationale. Modern shopping centers have become the functional equivalent of the public business districts in towns, displacing traditional public forums for communication. Denying any First Amendment protection allows private owners to monopolize effective communication channels, particularly for speech related to the businesses operating within the center, which is precisely the situation *Logan Valley* was designed to protect.

No, the First Amendment does not protect the picketing in this case because the constitutional guarantee of free speech is a guarantee only against abridgment by government, not against actions by private property owners. The rights and liabilities of the parties are dependent exclusively upon the National Labor Relations Act, and the case must be remanded to the Board for consideration under the statutory criteria of the Act alone, without reference to First Amendment principles. The Court clarifies that the accommodation between employees' Section 7 rights and employers' property rights may fall at differing points along the spectrum depending on the nature and strength of the rights asserted in a particular context. The Court also notes that while First Amendment activity has historically been associated with streets, sidewalks, and parks, it has not been associated with the public spaces in a privately owned shopping center.

The Court should not have reached out to overrule Logan Valley Plaza and should have instead affirmed the judgment below on purely statutory grounds under the National Labor Relations Act. On the merits of the constitutional question, the First Amendment principles underlying Logan Valley are sound and should not be disturbed. The modern shopping center has displaced the traditional public forums of streets, sidewalks, and parks for many speech-related purposes. The shopping center owner, by opening his property to the public as a business district, has to a significant extent displaced the state from control of historical First Amendment forums. Some accommodation of First Amendment rights on shopping center property is therefore appropriate and necessary.

Although Lloyd Corp. v. Tanner did not expressly overrule Logan Valley Plaza, the two decisions cannot be harmonized in a principled way. The Court would have been wiser in Lloyd Corp. to have directly confronted this inconsistency. The Court's opinion today helpfully clarifies the confusion in this area of law by recognizing the distinction between First Amendment and labor law issues that may arise in these types of cases.

It is unnecessary to overrule Logan Valley Plaza in this case because the First Amendment protection recognized in Logan Valley was expressly limited to picketing directly related to the operation of a specific store in the shopping center, which is not the situation here. The picketing in this case was aimed at the operation of a warehouse not located on the shopping center premises. Lloyd Corp. v. Tanner is consistent with this limited reading of Logan Valley. The Court therefore need not say any more than that the First Amendment does not cover the picketing at issue in this case.

Hudgens v. National Labor Relations Board

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