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 the distribution 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 city ordinance can prohibit door-to-door selling. As commercial activity, selling does not have the same protected status as distributing religious literature.

Perhaps the two most dramatic results of Marsh took place in the 1960s and early 1970s. Starting in the 1960s, African American youths and their white supporters organized the first sit-ins--events in which people literally sat in at the lunch counters in local department and drugstores, waiting for African 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 Court found 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 of literature protesting the Vietnam War and the draft. In what appeared to be a sharp departure from Marsh, the Court ruled that private property owners had the right to forbid activities unrelated to the normal operations on that site. In other words, a lunch-counter operator could not refuse to serve lunch to customers based on race, but a shopping center owner could refuse to allow political literature to be given out. Whereas in Marsh, First Amendment rights had taken precedence, in Lloyd, the rights of property owners were considered more important.