In Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968), the Supreme Court held that the state courts of Pennsylvania could not enjoin peaceful union picketing by nonemployees directly in front of a nonunion grocery store in a private shopping mall.

In the majority opinion, Justice Thurgood Marshall explicitly drew an analogy between municipally owned business centers (such as town squares) and a shopping mall.

First Amendment rights in a suburban shopping mall

Under traditional applications of the First Amendment, the state, Marshall noted, may not rely on its own property rights to bar protesters from business districts. Since the parking lot and environs of the stores of the shopping mall were “the functional equivalents of the streets and sidewalks of a normal municipal business district,” the Court relied on Marsh v. Alabama (1946), which held that protesters could not be charged with criminal trespass for political activity in a company-owned town, to bar civil injunctions against protest in the company-owned shopping mall.

Logan represented a substantial extension of Marsh, as, unlike in Marsh, the protesters in Logan had significant access to their intended audience — mall shoppers — through nearby public roads and a berm dividing the mall from the street.

Logan can be understood as a form of constitutional translation in the face of a changed cultural and technological landscape, as discussed by Lawrence Lessig (1993).

In cities, proprietors commonly operate businesses in individual storefronts on public roads and integrated within communities. In an urban environment, disaffected citizens seeking to express their grievances against a business have a publicly accessible location to engage in political speech.

Use of private private shopping malls, parking lots for picketing

By contrast in less dense suburbs, businesses tend to cluster in shopping malls. In Logan, the majority sought to maintain a constitutional balance as suburban environments supplanted urban environments by applying the same First Amendment principles to privately owned suburban store locales as to their urban equivalents.

The majority noted accordingly the “large-scale movement” of the population to suburbs, and the greater number of stores and percentage of national retail sales accounted for by shopping malls.

Logan represents the high watermark of the Supreme Court’s jurisprudence establishing a right for speakers to make use of private property as the “functional equivalent” of traditionally public space.

In Lloyd Corp. v. Tanner (1972), the Court greatly limited the reach of Logan. As a consequence, further development of the principles articulated in Logan has been left to the states. In Pruneyard Shopping Center v. Robins (1980), the Supreme Court held that the state of California could interpret its own constitution to apply Logan-like protections to speakers in shopping malls, but that the U.S. Constitution does not offer this type of protection. Several states have followed in California’s footsteps.

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