Marsh v. Alabama

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 the distribution of religious literature in a public street. But Chickasaw was wholly owned by a private company. The Court needed to answer the question of what rights such a company had to regulate the activities that took place on its 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 in Chickasaw. 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, a sewage 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 freely used 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 more precious than property:

When we balance the constitutional rights of owners of property against those of people to enjoy freedom of the press and religion, as we must here, we remain mindful of the fact that the latter occupy 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 they must be informed. In order to enable them to be properly informed their information must be uncensored.