# Marsh v. Alabama/Opinion of the Court

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United States Supreme Court
326 U.S. 501
Marsh v. Alabama
Argued: and Submitted Dec. 7, 1945. --- Decided: Jan 7, 1946
In this case we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it 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. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post-office and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: 'This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.' Appellant was warned that she could not distribute the literature without a permit and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw she declined. The deputy sheriff arrested her and she was charged in the state court with violating Title 14, Section 426 of the 1940 Alabama Code which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. 21 So.2d 558. The State Supreme Court denied certiorari, 2 6 Ala. 539, 21 So.2d 564, and the case is here on appeal under Section 237(a) of the Judicial Code, 28 U.S.C. § 344(a), 28 U.S.C.A. § 344(a).
Had the title to Chickasaw belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company-town it would have been clear that appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, and others which have followed that case, neither a state nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets can not be justified on the ground that the municipality holds legal title to them. Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869. And we have recognized that the preservation of a free society is so far dependent upon the right of each individual citizen to receive such literature as he himself might desire that a municipality could not without jeopardizing that vital individual freedom, prohibit door to door distribution of literature. Martin v. Struthers, 319 U.S. 141, 146, 147, 63 S.Ct. 862, 865, 87 L.Ed. 1313. From these decisions it is clear that had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: Can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the state's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms.
We do not agree that the corporation's property interests settle the question. The State urges in effect that the corporation's right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We can not accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Cf. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 65 S.Ct. 982, 985, 987, note 8, 157 A.L.R. 1081. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation. And, though the issue is not directly analogous to the on before us we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, supra, 234 U.S. at page 326, 34 S.Ct. at page 823, 58 L.Ed. 1330, and cases cited, 234 U.S. at pages 328, 329, 34 S.Ct. at pages 824, 825; cf. South Carolina State Highway Department v. Barnwell Brothers, 303 U.S. 177, 625, 58 S.Ct. 510, 82 L.Ed. 734. Had the corporation here owned the segment of the four-lane highway which runs parallel to the 'business block' and operated the same under a State franchise, doubtless no one would have seriously contended that the corporation's property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. See County Commissioners v. Chandler, 96 U.S. 205, 208, 24 L.Ed. 625; Donovan v. Pennsylvania Co., supra, 199 U.S. at page 294, 26 S.Ct. at page 94, 50 L.Ed. 192; Covington Drawbridge Co. v. Shepherd, 21 How. 112, 125, 16 L.Ed. 38. And even had there been no express franchise but mere acquiescence by the State in the corporation's use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function and discrimination would certainly have been illegal.
We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a 'business block' in the town and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94 U.S. 324, 340, 24 L.Ed. 224. Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The 'business block' serves as the community shopping center and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.
Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. 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. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.
When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. As we have stated before, the right to exercise the liberties safeguarded by the First Amendment 'lies at the foundation of free government by free men' and we must in all cases 'weigh the circumstances and appraise * * * the reasons * * * in support of the regulation of (those) rights.' Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155. In our view the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a State statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice JACKSON took no part in the consideration or decision of this case.

## Notes

1 Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352; dissent of Chief Justice Stone in Jones v. Opelika, 316 U.S. 584, 600, 62 S.Ct. 1231, 1240, 86 L.Ed. 1691, 141 A.L.R. 514, adopted as the opinion of the Court, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Largent v. Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 891, 87 L.Ed. 1292, 146 A.L.R. 81; Follett v. McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938, 152 A.L.R. 317.
2 We do not question the State court's determination of the issue of 'dedication.' That determination means that the corporation could if it so desired, entirely close the sidewalk and the town to the public and is decisive of all questions of state law which depend on the owner's being estopped to reclaim possession of, and the public's holding the title to, or having received an irrevocable easement in, the premises. City of Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Hamilton v. Town of Warrior, 215 Ala. 670, 112 So. 136; Town of Leeds v. Sharp, 218 Ala. 403, 405, 118 So. 572; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712. The 'dedication' of a road to the public may also be decisive of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v. State, 28 Ala.App. 451, 185 So. 768, and whether certain action on or near the road amounts to a tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination of the issue of 'dedication' does not decide the question under the Federal Constitution here involved.
3 Clark's Ferry Bridge Co. v. Public Service Commission of Pennsylvania, 291 U.S. 227, 54 S.Ct. 427, 78 L.Ed. 767; American Toll Bridge Co. v. Railroad Commission of California, 307 U.S. 486, 59 S.Ct. 948, 83 L.Ed. 1414; Mills et al. v. St. Clair County et al., 8 How. 569, 581, 12 L.Ed. 1201; Port Richmond & Bergen Point Ferry Co. v. Board of Chosen Freeholders of Hudson County, 824, 825, 826, 58 L.Ed. 1330; Covington & L. Turnpike Road Co. v. Sanford, 164 U.S. 578, 17 S.Ct. 198, 41 L.Ed. 560; Norfolk & S. Turnpike Co. v. Virginia, 225 U.S. 264, 32 S.Ct. 828, 56 L.Ed. 1082; Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192, and cases cited on pages 293-295 of 199 U.S., on pages 94, 95 of 26 S.Ct.
4 And certainly the corporation can no more deprive people of freedom of press and religion than it can discriminate against commerce. In his dissenting opinion in Jones v. Opelika, 316 U.S. 584, 600, 62 S.Ct. 1231, 1240, 86 L.Ed. 1691, 141 A.L.R. 514, which later was adopted as the opinion of the Court, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290, Mr. Chief Justice Stone made the following pertinent statement: 'Freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce. Whatever doub § may be entertained as to this Court's function to relieve, unaided by Congressional legislation, from burdensome taxation under the commerce clause, see Gwin, White & Prince, Inc., v. Henneford, 305 U.S. 434, 441, 446-455, 59 S.Ct. 325, 328, 331-335, 83 L.Ed. 272; McCarroll v. Dixie Lines, 309 U.S. 176, 184, 185, 60 S.Ct. 504, 508 (509), 84 L.Ed. 683, it cannot be thought that that function is wanting under the explicit guaranties of freedom of speech, press and religion.' 316 U.S. at pages 610, 611, 62 S.Ct. at page 1245, 86 L.Ed. 1691, 141 A.L.R. 514.
5 In the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage varied from 9 per cent in Illinois and Indiana and 64 per cent in Kentucky, to almost 80 per cent in West Virginia. U.S.C.oal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia, 1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia, June 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116.
6 As to the suppression of civil liberties in company-towns and the need of those who live there for Constitutional protection, see the summary of facts aired before the Senate, Committee on Education and Labor, Violations of Free Speech and Rights of Labor, Hearings pursuant to S.Rec. 266, summarized in Bowden, Freedom for Wage Earners, Annals of The American Academy of Political and Social Science, Nov. 1938, p. 185; Z. Chafee, The Inquiring Mind (New York, 1928), pp. 173-74; Pamphlet published in 1923 by the Bituminous Operators' Special Commi tee under the title The Company Town; U.S.C.oal Commission, Report, supra, Part III, p. 1331.
7 Jones v. Opelika, supra, 316 U.S. at page 608, 62 S.Ct. at page 1244, 86 L.Ed. 1691, 141 A.L.R. 514; Murdock v. Pennsylvania, supra, 319 U.S. at page 115, 63 S.Ct. at page 876, 87 L.Ed. 1292, 146 A.L.R. 81; Follett v. McCormick, supra, 321 U.S. at page 577, 64 S.Ct. at page 719, 88 L.Ed. 938, 152 A.L.R. 317
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