Marsh v. Alabama

Appellant
Grace Marsh
Appellee
State of Alabama
Appellant's Claim
That she had the freedom to distribute religious literature of the Jehovah'sWitnesses on a "public" street in the company-owned town of Chickasaw, Alabama, despite the privately owned town's refusal to issue her a permit and the Alabama state law supporting property owners' right to ask individuals to leave their property.
Chief Lawyer for Appellant
Hayden C. Covington
Chief Lawyers for Appellee
William M. McQueen, Attorney General of Alabama, and John O. Harris, Assistant Attorney General of Alabama
Justices for the Court
Hugo Lafayette Black (writing for the Court), William O. Douglas, Felix Frankfurter, Robert H. Jackson, Frank Murphy, Owen Josephus Roberts, Wiley BlountRutledge
Justices Dissenting
Harold Burton, Stanley Forman Reed, Harlan Fiske Stone (Robert H. Jackson didnot participate)
Place
Washington, D.C.
Date of Decision
7 January 1946
Decision
The First and the Fourteenth Amendments prohibit states from imposing punishment on people who distribute religious literature, even in a company town; therefore, Marsh's conviction was overturned.
Significance
The Marsh v. Alabama decision was a landmark First Amendment case, further establishing the "preferred position" of freedom of religion, as opposedto the rights of property owners.
Grace Marsh was a Jehovah's Witness who wanted to distribute religious literature in downtown Chickasaw, Alabama. Chickasaw was a suburb of the city of Mobile--a suburb wholly owned by the Gulf Shipbuilding Corporation.
One day Marsh stood near the town post office, handing out leaflets. In the stores nearby, signs announced:

This Is Private Property, and Without Written Permission, No Street House, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.

Marsh was warned that she could not distribute literature without a permit, and officials made it clear that she would never be issued a permit. Marsh claimed that she had a right to hand out literature under the First Amendment ofthe Constitution, which protects freedom of religion and of the press. However, Marsh was arrested for violating an Alabama law that made it a crime fora person to stay on the property of someone who has asked that person to leave.
The Special Case of a Company Town
When Marsh's case finally made it to the Supreme Court, the Court faced an unusual situation. Certainly no government agency had the right to prohibit thedistribution of religious literature in a public street. But Chickasaw was wholly owned by a private company. The Court needed to answer the question ofwhat rights such a company had to regulate the activities that took place onits property.
The majority of the Court answered: When private property rights conflict with First Amendment freedoms, especially freedom of religion, the First Amendment freedoms should probably be preferred. The Court stressed that private property rights are especially likely to be limited when an owner has already more or less opened that property to the public. This was certainly the case inChickasaw. In the words of Justice Black's majority opinion:

. .. Chickasaw . . . has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, asewage disposal plant and a "business block" on which business places are situated . . . [R]esidents . . . make use of a company-owned paved street and sidewalk located alongside the store fronts . . . Intersecting company-owned roads at each end of the business block lead into a four-lane public highway .. . In short the town and its shopping district are accessible to and freelyused by the public in general . . .

Therefore, wrote Justice Black

Ownership does not always mean absolute dominion. The more an owner, for his [sic] advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the . . . rights of those who use it . . .

Moreover, Justice Black said, First Amendment rights were particularly precious--even moreprecious than property:

When we balance the constitutional rightsof owners of property against those of people to enjoy freedom of the pressand religion, as we must here, we remain mindful of the fact that the latteroccupy a preferred position . . . Many people in the United States live in company-owned towns . . . Just as all other citizens they must make decisions which affect the welfare of community and nation. To act as good citizens theymust be informed. In order to enable them to be properly informed their information must be uncensored.

The Rights of Property Owners
The Supreme Court therefore overturned Marsh's conviction, establishing the principle that privately owned places could also be public, and that freedom of religion was one of the most "preferred" freedoms in the nation. However, Justices Reed, Burton, and Chief Justice Stone dissented. As Justice Reed wrote:

It has never been held and is not now by this opinion of the Court that these [constitutional] rights [to freedom of religion, of speech, and of the press] are absolute either in respect to the manner or the place oftheir exercise . . . This is the first case to extend by law the privilege ofreligious exercises beyond public places or to private places without the assent of the owner . . .

Despite these objections, the majority decision in Marsh established an important principle. People who owned places that were treated as "public"had different obligations than the owners of individual homes.
The Consequences of Marsh v. Alabama
Despite the strong language of the majority decision in Marsh, its influence is rather difficult to determine. Certainly, in the 1946 case of Tucker v. Texas, the Marsh decision was directly applied. In Tucker, a town owned by the Federal Public Housing Authority tried to ban thedistribution of religious literature. Because of Marsh, the Federal PHA was told that such a ban was unconstitutional.
However, in 1951, in Breard v. Alexandria, the Court ruled that a cityordinance can prohibit door-to-door selling. As commercial activity, sellingdoes not have the same protected status as distributing religious literature.
Perhaps the two most dramatic results of Marsh took place in the 1960sand early 1970s. Starting in the 1960s, African American youths and their white supporters organized the first sit-ins--events in which people literallysat in at the lunch counters in local department and drugstores, waiting forAfrican Americans to be served. Technically, these stores were privately owned. The Court might have agreed that private store or restaurant owners had the right to serve whomever they please. But thanks to Marsh, the Courtfound that by opening their stores to the public, the store owners had accrued certain obligations, such as to offer equal treatment to all customers.
A second key decision came in 1972, in the case of Lloyd Corp. v. Tanner. A privately owned shopping center wanted to prohibit the distribution ofliterature protesting the Vietnam War and the draft. In what appeared to be asharp departure from Marsh, the Court ruled that private property owners had the right to forbid activities unrelated to the normal operations onthat site. In other words, a lunch-counter operator could not refuse to servelunch to customers based on race, but a shopping center owner could refuse to allow political literature to be given out. Whereas in Marsh, FirstAmendment rights had taken precedence, in Lloyd, the rights of property owners were considered more important.
Related Cases

• Tucker v. Texas, 326 U.S. 517 (1946).
  
• Breard v. City of Alexandria, 341 U.S. 622 (1951).
  
• Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).