A group of labor union members filed an unfair labor practice charge against the owner of the shopping center when the group was denied to picket in the shopping mall.
The Constitution would not permit control of speech within a shopping center, and any discrimination in the regulation of expression on the basis of the content of that expression.
A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by the agent of the owner with arrest for criminal trespass if they did not leave. The petitioner, Scott Hudgens, is the owner of the shopping center located in Atlanta. Warehouse employees of the retail store at the shopping center went on to strike to protest the company’s failure to agree to demands made by their union in contract negotiations. The strikers decided to picket in ten retail stores in Atlanta. When the general manager of the shopping center informed the employees that they could not picket in the mall, the union filed with the Board and unfair labor practice charge against Hudgens.
Does the respective rights and liabilities of the parties need to be decided under the criteria of the National Labor relations Act alone, under a First Amendment standard, or under some combination of both?
Only under the criteria of the National Labor Relations Act. Under the present state of law the constitutional guarantee of free expression has no part to play in a case such as this. The rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Thus, the case was remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be considered under the statutory criteria of the National Labor Relations Act alone.
In Marsh, the private entity had displaced the state from control of all the places to which the public had historically enjoyed access for First Amendment purposes and the First Amendment was held fully applicable to the private entity’s conduct. The shopping center owner may nevertheless control all places essential for the effective undertaking of speech-related activities. For those activities here, then, the First Amendment should have application under the reasoning of Marsh.
If a large shopping center is the functional equivalent of a municipality, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech’s content. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for the First Amendment purposes, and may even forbid such use of some of its facilities, what a municipality may not do under the Firstand Fourteenth Amendment is to discriminate in the regulation of expression on the basis of the content of that expression. It follows that if the respondents in Lloyd case did not have a First Amendment right to enter that shopping enter to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the shopping mall in question.