Case Overview

Legal Principle at Issue

Whether respondents, in exercise of asserted First Amendment rights, may distribute handbills in a private shopping mall contrary to the owner's wishes and contrary to a policy enforced against all handbilling.


The Court held that Tanner was not entitled under the First Amendment to distribute handbills inside the mall.


The Lloyd Corporation owns a large retail shopping center in Portland, Oregon known as the Lloyd Center. It is bounded by public streets and owns all the land and buildings within the Center. The Lloyd Center allows certain civic and charitable organizations, such as the American Legion and The Salvation Army, to have limited use of the mall. In 1960, Center institutes its strict no handbilling policy. At a few places within the Center, small signs are imbedded in the sidewalk which state its policy.

Donald Tanner, Betsy Wheeler, Susan Roberts, and two other young people were anti-war protesters. They were trying to publicize a meeting of the Resistance Community. The Resistance Community was composed of people opposed to the draft and the Vietnam War. On November 14, 1968 the respondents distribute anti-war handbills within Lloyd Center. The distribution occurs in several places on the mall walkways. The five young people are quiet and orderly, and there is no littering. Security guards inform the respondents that they will be arrested if they do not cease and desist the distribution of said handbills. Respondents leave the premises in order to avoid arrest and continue handbilling outside.

On January 15, 1970, respondents filed an action in the United States District Court of Oregon. Respondents sought an injunction affirming their right to distribute handbills and enjoining Lloyd Corp. from interfering with that right. Chief Judge Solomon grants the injunction, stating that the Center is open to the general public and that it is found to be the functional equivalent of a public business district. On July 7, 1971, per curiam decision, the 9th Circuit Court of Appeals upholds the constitutionality of the injunction. It states that it is bound by the lower courts factual determination as to the character of Lloyd Center and thus it must abide by the precedents in Marsh and Amalgamated Food Employees Union. In 1972, The United States Supreme Court grants the petition for cert on January 17.

Importance of Case

The United States Supreme Court based its decision on two points. First, the Court distinguished Marsh and Amalgamated Food Employees Union, finding that the facts in those cases were significantly different than those involved in this case. Secondly, the Court found that there had been no dedication of Lloyd Corp.s private property to public use so as to entitle respondents to exercise First Amendment rights.

In this case, the Court rejected the expansive interpretation of the Marsh Doctrine which is based on the idea that the more an owner, for his advantage, opens up his property for use by the public, the more his rights become circumscribed by the statutory and constitutional rights of those who use it The Court distinguished Marsh, noting that the Lloyd Center did not in any way resemble a private company town. Amalgamated Food Employees Union was distinguished on extremely narrow grounds. The Court found that its precedent was limited to a dispute involving one of the centers tenants and occurring under conditions where no realistic alternative for expression existed.

While not technically overruling Amalgamated Food Employees Union, the Court undermined the rationale the Court had employed in that case. The Court held that the its expansive reading of the Marsh Doctrine in Amalgamated was unwarranted, as it had never suggested that the privately owned sidewalks of a business district or shopping center were, for First Amendment purposes, equivalent to municipally owned streets or sidewalks. Additionally, The Court found that petitioners argument that a direct or indirect relationship between the purpose of the expressive activity and the business of the shopping center was not needed was considerably broader that the holding in Amalgamated allowed. Lastly, the Court emphasized that the invitation extended to the public by Lloyd was commercial in nature and was not an open-ended invitation to the public to use the Center for any and all purposes.

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