Warren E. Burger: We will hear arguments next in 71-492, Lloyd Corp. against Tanner. Mr. Black, you may proceed whenever you are ready.
George Black Jr.: Mr. Chief Justice, may it please the Court. This case is here upon the issuance of a writ of certiorari to the Circuit Court of Appeals for the Ninth Circuit. The case involves a controversy between shopping center owner and an anti-war handbiller. I believe, if I am able to properly describe the factual situation in this case, it will be found not to be the same factual situation as in Marsh against Alabama, nor in Logan Valley, nor in Central Hardware. The petitioner, Lloyd Corporation is the owner of a number of pieces of land divided by public streets in Portland, Oregon, used for shopping centers, as a shopping center, and known generally as Lloyd Center in Portland, Oregon. The respondents in this case are individuals who represented, what they termed the resistance, advocating resistance to the military draft. Their handbills were anti-war, anti-draft handbills. These respondents sought to distribute their handbills on certain portions of petitioner's land, in a mall or walkway, in the main building of the the petitioner in Lloyd Center. May I refer briefly to the Appendix in which we have copied photographs of the center map, and there is a map, first, center at Page 115. I would -- also at Page 116 is an aerial photograph, Exhibit number 4 of the center and similarly another aerial photograph at Page 117. The area, that is the entire area including the various buildings and the public streets in the center and the main building, are said to be something in the neighborhood of 50 acres.
William O. Douglas: And how many public streets run through these, five or six, as I remember?
George Black Jr.: Yes, there are, they run through the various parts of the center, Mr. Justice Douglas. None run through the main building which is really the subject of this particular handbilling.
Warren E. Burger: Are the public streets identifiable in any way, marked in any way that we see them on here?
George Black Jr.: There are pictures of the malls and of the public areas, but I don't think that there is a picture of the street as such.
Potter Stewart: Well, Mr. Black --
Byron R. White: Exhibit on Page 115 show the Broadway, Weidler, Halsey, they are all public streets --
George Black Jr.: Yes, the map that I understood you mean in addition to that map at Page 115. That will show the public streets. I think, probably it will answer your question. That's Exhibit number 3, and referring to it, you will note that the center on the north is bound by what is known as Broadway. A next street that runs through the center is known as Weidler Street, a second one proceeding on down the map is known as Halsey Street, and on the West or left-hand side, the map as one is looking at it, at the 9 street, on the East is I think 16th Avenue and on the South, bottom part of the map here, what you will notice is Multnomah Street, plus an indentation of a public park called the Holiday Park and some other streets, referring further to this map which maybe is the easiest way to explain this. There is a dark line around the perimeter of Lloyd center which includes the private areas and the public areas. That perimeter is approximately one-and-a-half miles. With reference to the -- this was not a suburban operation as such, when it was created. These lots and streets were there at the time Lloyd bought that property. Not in the Appendix but in the record, is a map of the City of Portland, which I think, is number 3(a), the Exhibit 3(a), which shows the approximate location here of Lloyd Center in the City of Portland. If I may take a moment to further describe this particular area, I’ve applied out that when there is some 39 blocks, and the blocks there are 200 feet by 200 feet with streets on each side of them, some 39 blocks were intended to be devoted to this enterprise in 1954. There were certain vacation of the streets in some of the area. It will be noticed on the map, and to the large building, there was not a vacation of other streets in the area and instead Lloyd corporation following usual provisions of this city or ordinance of Portland, donated and dedicated other properties to permit the widening of the streets and sidewalks in other parts of the area. I don't think that street vacation question is material in this case but it may be considered material by the respondents in the case. The construction of the center which is important so I would give it one more moment here, there were two buildings built with streets adjoining them. At the top of the map, there were two more buildings built later on. Then another building, each with public street surrounding them and then the large building which we call the main building, which has in it, what has been referred to as a mall or a walkway, a lobby, a corridor or whatever one got to think.
Warren E. Burger: We will pick up there after lunch.
George Black Jr.: Thank you sir.
Warren E. Burger: Given us the setting, now you can move into the full argument.
George Black Jr.: Thank you, Mr. Chief Justice. I would like to say just one more word about the setting, then I would get into the incident and discuss a little law, if I may. The place where this handbilling occurred is photographed and appears at pages 134 and 135 of the Appendix. Perhaps, in one of the interior malls or walkways, in front of the Meier & Frank entrance to that mall. In the main building, that I have described, which is one of four, in this Lloyd center, which in turn is in Portland, Oregon. All the -- I would like to say --
Lewis F. Powell, Jr.: Who owns the ice rink?
George Black Jr.: The Lloyd Corporation owns the ice rink. The ice rink is located in the basement and there is a big opening on the first floor where people who are walking in the mall can look down.
Lewis F. Powell, Jr.: Did this activity take place entirely within a building?
George Black Jr.: Within this structure which we call a building, which is a building, it's the main building. However, it's a large building, the building is maybe, is built in the form of a Latin or Greek Cross and it's about 900 feet, there on the length of about 500 feet or thereabout on the cross and this is a mall area, the interior of the building, which leads from the public streets on the various sides, except that it doesn't take anything on the West.
Potter Stewart: Well, Mr. Black, it's actually though an extension of the streets, I mean the walkways and terminals or --
George Black Jr.: No, they are not an extension of the streets as we said.
Potter Stewart: Well -- people getting back and forth from one --
George Black Jr.: People can come from a public street into the mall, yes.
Potter Stewart: And they cross it to the opposite, to the street in the opposite side there.
George Black Jr.: They cross the street.
Potter Stewart: Yeah.
George Black Jr.: Correct, they cross the street. Now on the West side, for example, in order to get in, where they'll have to go up in an escalator to get to this particular mall where this handbilling took place. It's the difference in levels.
Potter Stewart: Is there any vehicular traffic in the mall?
George Black Jr.: Pardon, sir.
Potter Stewart: Is there any vehicular traffic?
George Black Jr.: No, there is no vehicular traffic in the mall.
Potter Stewart: But there is a great deal of pedestrian traffic.
George Black Jr.: Well, we hope there is a great deal for business purposes.
Potter Stewart: Everyone who patronizes, one of these shops of the skating rink and so forth --
George Black Jr.: Well, one of the various buildings either across the public streets or in this main building, in the mall there. Now I would like to say a word about the policy of the petitioner Lloyd Corporation because that was one of the allegations in the complaint, which I will refer to in a moment. And before the Logan Valley case was decided in 1968, the Lloyd Corporation had a policy of barring all handbilling of every kind and character in that area. And billing by tenants, commercial, non-commercial or handbilling by anyone because it was considered to be detrimental to their business, detrimental particularly to what they called customer motivation, that was the policy. When Logan Valley was decided, I think, it was about March in 1968, we changed our policy to permit any handbilling that could come in there, that wanted to come in there, if it was related directly in its purpose to some use that was being made there of the premises by Lloyd Corporation or by its tenants. For example, picketing would have been permitted and actually was conducted inside of the mall, where the relationship factor was present, and also where it was -- there was not an alternative because and it was necessary to allow the person to come in to get to the particular store. In order to do the picketing. So that policy was changed and in the Fall of 1968, November, 1968, some six months after the Logan Valley case, this incident occurred in which the respondents, as I have stated, they were advocating what they called the resistance, anti-war. We got a telephone call, that they would be coming to the place and the police had been alerted in matters of that kind.
Potter Stewart: Are you sure to say, where the picketing, where the leaf-letting occurred on pages 134 and 135 in front of the Meier and Frank company. Now where can we find that on plaintiff's Exhibit number 3 on page 115?
George Black Jr.: That the map --
Potter Stewart: Where in this on page 115, where in this area we are looking --?
George Black Jr.: It's --
Potter Stewart: I've got Lloyd --
George Black Jr.: Approximately, in the center.
Potter Stewart: In the center.
George Black Jr.: Can you see 138 there, right block, which was formally block 138.
Potter Stewart: Yes.
George Black Jr.: About there, within 20-30 feet of that, I can't tell you exactly. The mall area extending East and the West is not a prolongation of the streets as such but it goes from the West, from the East to the West, however, to go from end to the another, you have to change the levels. But that's about where it occurred. Also their entrance is up, three I think, entrance is up to Halsey Street to North, top of the map, and there are two or three entrances down to Multnomah Street to the South of the map.
Warren E. Burger: Mr. Black, I take it that there is no problem of littering in this case?
George Black Jr.: There was no problem of littering in connection with the incident involved that is of any consequence. However, littering is a factor, one of the many factors, not at all important one, on private property. Littering, of course, has been held not to be a reason to deprive a person of constitutional right on public property, but littering is one of the factors in the case. Now the incident here is, I might say as I go through here that there are really no factual questions on anything that is brought to the Supreme Court here. The whole matter is a matter of conclusion of law and in regard to the exact character of the incident involved where that can be found on page 17 of the Appendix, because it's copied in from an agreed statement or Facts on the Pretrial Order. So there isn't any question whatever as to what happened, and that's the second division of The Agreed Facts starting on page 16 and page 17. The situation briefly was, one that these people came to this area and started making distribution of their bills in this private mall area and they were asked by the guards; the security guards of Lloyd Corporation to remove themselves to make the distribution on the public streets in that area, and they refused to do so and there was as -- at first and there was a controversy and subsequently, however, they did leave and they finished their hand-billing or at least some of it on the public streets, they were there available for that purpose. Now, the matter of legal controversy results from a suit. It was filed by the respondents against the petitioner in the United State District Court for Oregon, asking for the declaratory judgment injunction. Complaint was made of the particular incident that I described and there was also added statement that it was the policy of the Lloyd Corporation not to permit non-commercial handbilling of any character in these private malls and that they asked for a declaratory judgment from the District Court to the effect that non-commercial handbilling could be conducted as long as it was peaceful and orderly and as long as whenever the premises were open for public access. Now, the case was tried on the District Court and the court held, the decision by the way of the court is copied in, as a part of the appendix that is attached to the petition in this case for the writ of certiorari. It's at 14 (a) is the particular part of decision that I want to comment on. The court held that the privately owned mall, petitioner's main building there, that is the mall, he calls it the malls in walkways where the functional equivalent of a public business district, citing the Logan Valley decision and stating the respondents had a First Amendment constitutional right under the free speech, provisions of it to distribute handbills there when the property was open to public access as long as it was peaceful and orderly.
William O. Douglas: This property, to start with belonged to the city?
George Black Jr.: Yes. Not all of it. Lloyd Corporation brought some 39 blocks, 200 feet on this side and those blocks were already laid out with streets and sidewalks and they took part of those, I think 18 blocks, and made their main building. The other, let's say it was a four building belt. The other buildings were left on the lots, except for one or two instances. So that's how it happened that there were public streets and sidewalks in part of the area, but not in all of it.
William O. Douglas: Were there any companies running to the city on that ground?
George Black Jr.: No, you mean was it a clean deal?
Speaker: Yes.
George Black Jr.: It was a clean deal and that is copied into this appendix, retained no interest of any kind or character.
William O. Douglas: I noticed that the special agents of these Lloyd Center are commissioned by the City of Portland as policeman.
George Black Jr.: That's right. That's Lloyd's action, no requirement of the city. It's a Lloyd's action in order to facilitate their acting as guards in keeping order in the place.
Warren E. Burger: Is that a common thing in Portland for private security guards to be commissioned?
George Black Jr.: I can't answer that accurately. I am sure --
Warren E. Burger: It's common here in Washington.
George Black Jr.: I am sure it's done in places where they're large enough to have security guards and things of that character. For example, the people in bank lobbies and things like that. I think they are commissioned, but I can't make that representation to you, because I don't know.
Potter Stewart: But doesn't that fact alone make the Lloyds (Inaudible) to the city or the city -- isn't that fact alone that the city is participating in whatever Lloyd's -- whatever instructions Lloyd's have placed on the premise?
George Black Jr.: I don't think so. I don't think so, I think that just for maintenance or order. I don't think that; that has anything to do with making it a municipality.
Potter Stewart: Did the court say so in a case involving an amusement park just outside of Washington, three years ago?
Warren E. Burger: National Park?
George Black Jr.: I don't know that case, I am sorry.
Potter Stewart: Well, that was a situation in which the private owner of the park used local police --
George Black Jr.: Well, I think --
Potter Stewart: An incidence happened which the court held constituted state action?
George Black Jr.: Well, I think this. I think, for example, if I personally own that entire place and I put somebody out physically in my own hands, I suppose they wouldn't have any right to sue me for violation of constitutional rights. But on the other hand, if I called the policeman and if I had a policeman do it, and I charged the man with the trespass under the Oregon state law, and he was arrested on that basis, that would constitute state law, but would use that place as a public place or --
Potter Stewart: You have security guards under this city commission arrest for violations of that kind on the property?
George Black Jr.: No, they have never done so, and did not --
Potter Stewart: Do they do so -- do they have the power and authority to do so?
George Black Jr.: Excuse me sir.
Potter Stewart: Do they have the authority to do so under the commission from the city?
George Black Jr.: To arrest the trespasser?
Potter Stewart: Yeah.
George Black Jr.: I don't think any specific authority.
Potter Stewart: I thought --
George Black Jr.: They didn't and they were instructed not to do any arresting, and they didn't do any arresting.
Potter Stewart: Page 120 indicates they do have specific authority, plaintiffs exhibit number 8.
George Black Jr.: Yes, sir.
Potter Stewart: Misdemeanors committed in the presence also arrest --
Warren E. Burger: Can a misdemeanor committed in the presence of a private person be the subject of a citizen arrest in Oregon?
George Black Jr.: I think so, yes.
Warren E. Burger: Well, then does this add anything to the -- does the commission add anything to the power to make an arrest for --?
George Black Jr.: I don't think so, I haven't thought so. I haven't felt that that had anything to do with the question of whether this place was considered to be a sort of a municipality like Logan Valley.
Potter Stewart: Well, then I take it that private citizen can't do what second paragraph says here, an officer has every reason to believe that suspect participated in a felony, even though it's out of his presence to arrest this proper private citizen can do that, could he?
George Black Jr.: No, I don't. I don't know if I exactly get your point?
Warren E. Burger: Were these arrests made on the basis of offenses committed in the presence of the security guards?
George Black Jr.: There were no arrests made.
Warren E. Burger: Well, I mean with the removal, the efforts to remove them?
George Black Jr.: The guards were there and --
Warren E. Burger: They witnessed the acts. That's what I am trying to get at.
George Black Jr.: Yeah, that's right. That was acts and they were the ones that told and then asked the people to do their handbilling in the public place.
Lewis F. Powell, Jr.: Mr. Black.
Byron R. White: The respondent simply left after a warning, did they?
George Black Jr.: Yes.
Potter Stewart: And did their handbilling on the public streets.
Byron R. White: Why were they asked to leave?
George Black Jr.: They were asked to leave, because it was our private property and then we had a policy against handbilling and the handbilling bore no relation whatever to anything that we were doing there.
Byron R. White: Were asked to leave, because they were committing a trespass under the city of Oregon, or were they asked to leave, because they were violating some rule of Lloyd?
George Black Jr.: They are violating a rule of policy that Lloyd had.
Byron R. White: So city police were enforcing that rule?
George Black Jr.: Well, it wasn't the city police, we had the security guards, as far as that's concerned, it was the manager of the place too, discussing the matter with them but it wasn't a matter of calling of police. No police were called as such. They were just told that it was a policy and it had been the policy for eight years and were asked to --
Byron R. White: Do most people -- did they wear the uniform of the city police?
George Black Jr.: They have a uniform, but not the uniform of the city police.
Byron R. White: Do people think they have the authority to arrest under violations to the law?
George Black Jr.: I wouldn't think so. People, generally, I don't know.
Byron R. White: The record doesn't show that.
Potter Stewart: Yes, the record shows on page 142. We have a sliver badge where the city is gold. The buttons on our uniform are all silver where the city police are all gold. The city has a 2-inch stripe down the breeches, and we don't have. It's all in the record.
William H. Rehnquist: Mr. Black, do you regard this factual aspect of the case involving the security guards as any different than if the owner of a single standing private hardware store finding someone leaf-letting inside his store, they didn't want to call the police and asked him to eject him?
George Black Jr.: I don't find it any different than if the owner had simply asked people to leave. That's all that happened. They asked them to leave. There was no arrest made, they were just asked to do their handbilling, told of the policy of the company. They were told that they could be arrested for trespass, they were told that and there was some testimony, Your Honor, in the case that was a little bit different than the stipulated facts. One witness testified that he had been threatened with arrest and the District Judge considered that to be sufficient state action in order to justify the United States District Court having jurisdiction under the Civil Rights statute in order to hear the case.
Harry A. Blackmun: But I suppose the Portland police are available to any private property owner who finds someone on his property that he doesn't want, on a trespass complaint. Would they?
George Black Jr.: Yes.
Harry A. Blackmun: Mr. Black, who selects the guys, who pays the salaries, who has the right to fire them?
George Black Jr.: The Lloyd Corporation selects them and hires them, and would have the right to fire them.
Harry A. Blackmun: Does the city have any control of what the guys do?
George Black Jr.: None at all, absolutely none.
George Black Jr.: Mr. Black, why the Lloyd hasn't commissioned by the city?
George Black Jr.: I think it's a matter of convenience, there is shoplifting in the place of that character and the other disturbances and if these men were just a attendants as such, they wouldn't have the -- at least they demonstrated in the apparent power to cause the incident to be taken care of.
George Black Jr.: So they did have apparent powers to the city police?
George Black Jr.: Well, I think the evidence shows is that they had, what can I call a special police commission authorizing them, but they didn't exercise it in this case other than to explain the policy.
George Black Jr.: But they did extensively have it? One man thought he had because he said he was threatened with arrest.
George Black Jr.: Well, that's -- but anybody could threatened anybody for arrest as such you don't have to be a policeman.
George Black Jr.: Well, wouldn't it be a little different if the man had a uniform on?
George Black Jr.: Pardon, sir.
George Black Jr.: Would it be little different, man in a uniform, a gun and a --
George Black Jr.: Yeah, but I don't know if they had a gun, and a lot of these (Inaudible).
Byron R. White: Well, it says it had a gun.
Potter Stewart: But the record indicates it on page 140.
George Black Jr.: This is a large place and it's for the protection of the public, things of that character. We pay the taxes and administer the entire situation of the city as such. Just proceeding, I think I have told you about the Ninth Circuit decided, the Ninth -- rather the District Court failed to give any attention to our contention and that this handbilling had no relation at all to the use that we were making of the premises and also that I got --
William O. Douglas: I see on page 146 of the reference Mr. Black, that there are a number of conceptions that the soliciting or handing out literature or picketing. I see one of the American Legion, another is the Volunteers of America, another is a Salvation Army and there is perhaps one other thing, but anyway there are few.
George Black Jr.: There were some --
William O. Douglas: Between 80 pages, 185 or 195, there is the state's statement, the President of the Corporation, he was asked about that, and he said that he felt that; that was a charitable feature, that was engaged them. They allowed the Salvation Army to put their kettles there once a year in Christmas. They allowed the veterans, I believe to sell their poppies on one occasion. There were two or three things of that kind and limited to that of a charitable character. I will say that there was other evidence in the case of promotional activities, and there was substantial testimony in the case to the effect of the promotional activities, rather the only evidence really in the case what brought it was that the promotional activities were put on, on-purpose for the purpose of bringing people there, everything from an illustrative general concert to an antique car, and things like that.
Byron R. White: President Johnson and Vice President Humphary were invited --
George Black Jr.: Once every four years, they ask them to come in order to bring people to the place, and that was the extent, all other political speeches and talks were turned down, they were not permitted. It was generally not permitted. And if that--
Byron R. White: I think that all irrelevant unless it is a public place.
George Black Jr.: I think it's all irrelevant, I think that case is irrelevant, just like I think that that veterans --
Byron R. White: But obviouilsy if (Inaudible).
George Black Jr.: Well, I think this, Mr. Justice White, I don't know the department store or any merchant that doesn't put on some kind of promotion in order to get the people into his place, and there was promotions.
Byron R. White: These non-demonstrations are attracted by lot of people?
George Black Jr.: Well, but we want to attract the kind of people we think are going to be customers there and not that, I don't think that's possibly any crowd.
Warren E. Burger: Isn't it equally irrelevant? If it is a public place, because if it's a public place, the First Amendment takes over.
George Black Jr.: Yes, I think the First Amendment would take over if it were in a public place and be entirely different than its private setup I think. But I think the fact that operating a store setup with your various tenants, I think the promotional feature is completely incompetent and really competent and irrelevant in this case.
Warren E. Burger: Your time has expired now, Mr. Black.
George Black Jr.: Thank you.
Byron R. White: Could I ask you before you sit down, the ordinance that is printed on page 194 is applicable only to the Lloyd Center, is it not to the city ordinance? It's not applicable to other private units of Plaza?
George Black Jr.: No, on page 193?
Byron R. White: 194 and 195.
George Black Jr.: Yes it refers to the -- like the, that ordinance and the one that was the ordinance -- one of the ordinances, they are all copied there. 193 is the last one that's on page 193. That's the one where the city certified that Lloyd had completed all of its obligations in connection to the exchange of properties.
Byron R. White: It's not a general ordinance, it's an ordinance that applies to --
George Black Jr.: No, specific ordinance applicable to the application for vacations, thank you.
Warren E. Burger: Thank you Mr. Black. Mr. Neil.
Carl R. Neil: Mr. Chief Justice, may it please the court. I suppose I could begin preciously by saying that Mr. Black says the purpose of building shopping center was to get people to come and buy things and it succeeded. These plaintiffs did buy something. When told to leave the premises, they said where can we eat, and a nice security guard sat down at Mannings right in the shopping center and they went there and purchased food, but --
Warren E. Burger: But they couldn't refuse them service, could they --
Carl R. Neil: No, of course not.
Warren E. Burger: -- under the holdings of this court?
Carl R. Neil: No, of course, not Your Honor, and I don't suggest that it's --
Warren E. Burger: And that doesn't help us one way or the other.
Carl R. Neil: No, it does not. I think, Your Honor, few of the questions of court though, that it is worthwhile spending some additional time on the facts of this case. It does involve a large urban shopping center and I think I can perhaps assist the court in getting the relationship of the city and--
Byron R. White: Was there a postal substation at Lloyd Center one time?
Carl R. Neil: If there is within the shopping center, I'm not aware of it. Your Honor, the record doesn't show. The court would look at Exhibit 3 on page 115 of the Appendix, again, this map. I think you can relate it to the aerial photographs which appear on following two pages. You will note on Exhibit 3, this main 18 square block or formally 18 square blocks area, which we call the main part of Lloyd Center, where the picketing or the handbilling took place, and you look on your next page in the aerial photograph and that's the same area that's shown right in the center, same 18 Block area to get an idea of the structure that's situated on the 18 block.
Warren E. Burger: It's the block right under the word C of Lloyd Center on the map?
Carl R. Neil: It's right under the word --
Warren E. Burger: The letter C?
Carl R. Neil: The letter N. You're talking about the map at page 115, Your Honor?
Warren E. Burger: Yes, 115 is it.
Carl R. Neil: Yeah, it's bounded by Halsey Street on the North, Multnomah on the South, 9th and 15th Streets on the East and West.
Warren E. Burger: Now are Halsey and -- well the streets bounding at Halsey and Multnomah and the others, are they public streets?
Carl R. Neil: Yes they are, Your Honor, and as I say--
Warren E. Burger: This is an area completely surrounded by public streets.
Carl R. Neil: Yes, it is Your Honor.
Warren E. Burger: Just as this building is surrounded by public streets here.
Carl R. Neil: Yes. You can see the same 18 block Area on aerial photograph of the following page Exhibit 4, right in the center portion of the photograph. The building does have several levels, or at least more than one level since the land is sloping somewhat and that photograph does not show it. The following photograph Exhibit 5 on page 117. If we refer back to the map, that photograph is looking from the upper right-hand corner of the map to the lower left-hand corner. In other words looking toward the west side of the City of Portland in the background, you can see the main downtown district down the west side of Willamette River in this photograph. So this city is bisected by the Willamette River. Its main downtown business area is on the west side of the river. This shopping center is situated on the east side of the river and what is another commercial district of the city. Now, this main part of the shopping center, this former 18 square block area, is as the evidence shows, the portion of the shopping center which gets the main traffic, both in terms of pedestrian traffic, in terms of automobile parking, and this sort of thing. There are other portions of the shopping center, but this is the main portion of it where the handbilling took place. This main portion as well as some of the other portions were made possible by the city vacating and conveying to Lloyd Corporation. About 8.838 acres of former public streets and sidewalks, and those, of course, again, are shown on the map at 115 of the Appendix, you can see the dotted lines on that map that indicate the former city streets.
Warren E. Burger: In your view, does it make any difference to the case whether this was all acquired from a private party or some of it was acquired from the public domain?
Carl R. Neil: Well, it might make some difference Your Honor, because here we have government assisting in the creation of a private shopping center in a way that probably wouldn't have been possible to create the shopping center, but for the vacation of the street.
Warren E. Burger: Is that legally and fundamentally different from number of the farms in the United States that derive from government patents?
Carl R. Neil: Well, in sense of all title derives from the government, no it is not different.
Warren E. Burger: Was this property, simply by deed from the city or was it -- some of that taking by eminent domain.
Carl R. Neil: The street and sidewalk property, that the city conveyed was all city public property, simply I don't know if they had it be, they at least vacated it. The law may automatically say, the adjoining property owner gets the property in the case of vacation, and they were, of course, the adjoining property on the both sides of street.
Warren E. Burger: Then the Lloyd acquired it from the property owners?
Carl R. Neil: No, they acquired the streets inside Your Honor.
Warren E. Burger: I'm speaking of the blocks, the blocks.
Carl R. Neil: Oh yes, the property, former private property was indeed acquired from those people. As I say, this main area is about 8.83 acres, former streets and sidewalks, the traffic center has within it as Mr. Black mentioned, a skating rink which is open to the public, it has a public auditorium, which the evidence shows is sometimes rented out by Lloyd Corporation and is sometimes donated to use. As the District Court found below, the malls and walkways within the shopping center are open to the public at all times, those malls, the principal malls run north and south and east and west, and they are about 50 feet wide in some of the photographs, the plaintiff's Exhibit 11, and some of the photographs offered by the other side, also in the Appendix show and these broad malls and walkways within the shopping center. The interior parking on this main park of the shopping center affords parking for not less than 1000 automobiles, about 850,000 square feet so the record shows. There's also evidence in the record that additional parking on Lloyd Center property is available elsewhere in the shopping center, but in this area about a 1000 cars.
William H. Rehnquist: Mr. Neil, where on the Exhibit number 3, at page 115, with relation to that main building, is the parking? Where do people park for that area?
Carl R. Neil: Well, first of all, Your Honor, they park throughout this main part. It's a multi-level structure. You can see some of the parking on the following page in the aerial photograph. That is the upper level parking you can see. In addition to that, there is also a lower level of parking, which you cannot see on this photograph, that underlines so far as I know, the entire18 block area except for the skating rink, I think, which goes down into the ground further. So there is underground parking, under this entire 18 block area, substantially, in additional to parking you see on the upper level on Exhibit 4.
William H. Rehnquist: Is there any vehicular traffic to and from the parking area within the building itself, the part used for retail merchandising?
Carl R. Neil: I didn't quite understand your question, Your Honor.
William H. Rehnquist: Well, the question probably wasn't too clear. Within the part of the building that is used for retail merchandising where people circulate back and forth from the stores, is there any vehicular traffic?
Carl R. Neil: I see. No, in general, no. Although, if you look at some of the photographs, plaintiff's Exhibit 11 on page 131, for example, there are two photographs on the page. If you look at the bottom page photograph and also the upper one, you can see that there are pedestrian walkways, right, adjacent to parking and vehicle movement area. This is the upper level, one of the upper level parking lots, shown in both of these photographs. So in some cases, you do have sidewalks adjacent to the parking areas and the underground area, you have great, vast parking lots that probably are not -- do not have sidewalks going through them.
Byron R. White: Looking at page 136, I see a camper there. Is that a street or ?
Carl R. Neil: No, the record doesn't explain that, but since I've been here a few times when that kind of thing was there, I think it's a display Your Honor, it can't be automobiles. As one of the questions indicated, the Lloyd Corporation has permitted a variety of outside activities to take place, non-profit activities on its malls and walkways of its shopping center. Some of these involve great crowds of people, such as football rallies, political rallies for presidential candidates, various kinds of displays, musical performances, there is evidence that they once had a crowd of 20,000 people there in the shopping center for an (Inaudible) concert. Someway the auditorium is used as I mentioned before on a non-rental basis, with the Lloyd Center’s Corporation's permission, by some groups, Cancer Society, Campfire Girls, Girl Scouts, but it rents out on charged basis to other groups. In any event, there are large number of outside people coming to the shopping center to use that auditorium or participate in some activity taking place there. They have also permitted a number of charitable, frankly, charitable solicitations which the court below found, were not put on to induce customer motivation, but were put on because the Lloyd Center thought they were worthwhile charities, such as the Salvation Army, the Volunteers of America, the American Legion selling Buddy Poppies and the like, other groups, similarly considering themselves charities, very few such permissions such as the record shows, the March of Dimes and Hidatsa. Now, coming to the incident question, the police officers are employees of the corporation and they do hold that commissions where a copy of which is an evidence, vesting them with full police authority. That comes out of the commission. I have no doubt that these police officers have the same authority as a regular policeman does in the City of Portland. I also have, I think it is clear in the record, that these policemen as the District Court found, caused the plaintiff to believe that they would be arrested for trespass. If they did not cease and desist, from their handbilling and go out to the exterior public sidewalks, which they did, in order to avoid arrest.
William H. Rehnquist: Mr. Neil, if a single store owner found someone inside his store, leafleting, whom he felt was trespassing and called the Portland Police to eject him, would you feel that brought him within the Logan Valley rule?
Carl R. Neil: No, you are talking about the single store inside the business premises where the business is--
William H. Rehnquist: Right.
Carl R. Neil: Is that right? No that's not within the Logan Valley rule--
William H. Rehnquist: How does the presence of police officers hereby itself help your case?
Carl R. Neil: I'm not sure it adds anything to my case except the court’s questions indicated I guess what is the basis for color of law under Section 1983 under which this case arose, and one basis you could answer is the presence of deputy police officers threatening people with arrest unless they abandoned what they considered to be their constitutional rights. That I think is the relevance of that evidence probably. So they left to avoid arrest. They were distributing leaflets, the evidence shows no more than five people throughout this 20 or 25 acre main part of Lloyd Center, different places, I think two of them were somewhere near each other in the Meier & Frank entrance, which counsel pointed to in the photograph. The rest of them were in different places throughout this large area. There is no evidence whatever, in fact, the findings and the evidence are sort of contrary of any violence, any disturbance, any upset, even the reaction, evidence is very, very slim. One lady asked the shopping center manager, what's going on here? And he told her and she said, well, I don't like those views. Then the lady told one of the leafleters to drop dead and a third lady, said stop bothering him. So, that is much public reaction, I think, for the nature of the activity which was going on here.
Harry A. Blackmun: You share Mr. Black's response to my inquiry about littering?
Carl R. Neil: The evidence shows there was no littering Your Honor. Mr. Black's response was that littering is a concern of the Lloyd Corporation and they argue in their brief, of course that if the rule we contend for as a law they will have littering expense, expense to clean up litter. Well, they also have expense to clean up litter when there are football rallies a lot more. They have expense to clean up litter if no distribution takes place to public and passing through these walkways obviously is going to drop some candy wrappers. And I am not -- there is no evidence in this record, and that shows the cost of cleanup, whatever litter might result from handbilling is any greater than the cost of cleaning up candy wrappers and like it will be dropped by the public, in any event. Now, I think it's important to emphasize in addition to what this case is about, what it is not about. It does not involve disturbance, upset, picketing obstruction of a normal use of the properties such as was present in Adderley versus Florida, Cox versus Louisiana or Cameron versus Johnson.
Warren E. Burger: How much do you rely on the fact that these men -- these security officers held commissions from the city police?
Carl R. Neil: It has one basis for showing color of law under Section 1983.
Warren E. Burger: Suppose they gave them the same uniforms and just turned in there--
Carl R. Neil: I would argue the result should not be different.
Warren E. Burger: So then it isn’t very important, is it?
Carl R. Neil: I don't believe it is in this case Your Honor.
Warren E. Burger: They could be plain clothes or guards or they could be uniform guards, marked private security Lloyd Center or whatever?
Carl R. Neil: Well, I take Mr. Black’s example that he personally kicks them out if he is the President of the Corporation. He would do so, undoubtedly, under the trespass laws of the city or the state. Now that seems to me to invoke this court’s decision in Adickes v. SH Kress. Private party making use of the public statutes to enforce his policies, in this case, against First Amendment rights.
Warren E. Burger: Well, would you say the state action, suppose someone came in there, assume that there is a bank there and some bank robbers came in to rob the bank and the bank charters took some clubs or guns and resisted the robbery. Would you say that’s state action?
Carl R. Neil: No I'd say that's self-defense.
Warren E. Burger: Self-help, isn't it?
Carl R. Neil: Self-help.
Warren E. Burger: Suppose this Lloyd Center has a staff of men highly trained in “self-help”.
Carl R. Neil: Well, I can conceive that happening, but it seems--
Warren E. Burger: It’d be very easy, wouldn’t it? For them to convert, if the case were to turn on that kind of a point?
Carl R. Neil: Yes, but it seems to me that wherever that occurs, that party is likely to invoke the trespass laws too. He probably--
Warren E. Burger: Well, look, he doesn’t invoke any law, he just grabs him by the scruff of the neck and throws him off, he doesn’t identify the statute or the common law that he’s acting under. He just says this is my property off, how does that--?
Carl R. Neil: Well, I suppose he can do that, if you’re asking me, if that is permissible, does that change?
Warren E. Burger: Oh no, I'm just -- I'm trying to find out how important it is that these men have commissions that they have uniforms or whatever.
Carl R. Neil: It is something you can hang your hat on, but I don't think it’s that important. I agree with you Your Honor. I have even broader--
Warren E. Burger: Well, I'm not sure what I thought about it, I'm just trying to find out where we’re going?
Carl R. Neil: I have an even broader ground for --
William O. Douglas: We have in the Griffin case, the Glen Echo case, we're talking about the municipal, that if that deputized private guard, makes the arrest in state action.
Carl R. Neil: I agree with that Your Honor.
Warren E. Burger: Yes but if the same private guard have turned in his badge and made -- ejected somebody or made a citizen's arrest, the following week then would it--
Carl R. Neil: That might not be the state action. But my next argument would be that, that doesn't necessarily change the result that should occur in this case.
Warren E. Burger: So then the state action is not an important factor in here, Your Honor.
Carl R. Neil: Yes, it is, it is an important factor but that isn't the only thing that may create state actions in this case. For example--
Potter Stewart: Suppose that the fact that officers were deputized agents of the state would have something to do perhaps for the purposes of 1983 jurisdiction. But since there was no arrest here, I would suppose you're simply relying on a doctrine of Marsh against Alabama and Logan Valley.
Carl R. Neil: Exactly.
Potter Stewart: That this complex was--
Carl R. Neil: Yeah, that's quite--
Potter Stewart: -- government itself.
Carl R. Neil: --about--
Potter Stewart: There is no such thing as trespassing on public sidewalks.
Carl R. Neil: Right. That's exactly the rationale of Diamond versus Bland in the California Supreme Court, where they say once you've found functional equivalency of the private property in question to the sidewalks of a public business district, you have answered the state action question right there. That is the rationale of Diamond versus Bland I think is probably a similar kind of rationale of Burton versus Wilmington Parking Authority where you had the lease of public property to a private authority. That in effect you had a functional equivalent of the public parking thing being operated now by a private party. And once you reach that, you've got state action.
Byron R. White: Isn't there this difference though that in Wilmington Parking Authority, there was state involvement whereas in Logan Valley. I take it there really wasn't any state involvement. It was your notion of the equivalency.
Carl R. Neil: Well, the difference, Your Honor, is that the property initially was owned by a public body in Wilmington and it was not initially owned, all of it at least by a public body in either Logan Valley or this case as I mentioned.
William H. Rehnquist: Well, but do you think if the property had been conveyed and fee simple, in Wilmington the same result would have obtained?
Carl R. Neil: Well, yes I think it might have. For example, suppose it was impossible to build that type of parking structure in Burton case without that happening for some reason or another. That's what I contend is a case here. You could not build this type of shopping center without vacating public streets and sidewalks. There had to be state aid, state participation by conveying property of Lloyd Corporation here in order to permit this kind of shopping center to be built. It is more than just granting them a zone chain or something of that sort.
William H. Rehnquist: Does your Portland Zoning Code requires site plan approval for most major retail constructions?
Carl R. Neil: The record doesn't show that, Your Honor, but I think it probably does. The record does show that the ordinance vacating streets expressly recited that it was to permit the creation of a general retail business district by Lloyd Corporation. And I started to talk about things this case doesn't involve, another thing that it doesn't involve is, it doesn't involve regulation, any question in my opinion of reasonable regulation. It's a question of whether the Lloyd Corporation may flatly and completely, totally prohibit free speech or any kind of free speech that it doesn't approve, it doesn't like, on its own interior malls and walkways when they are as the District Court found the functional equivalence of public sidewalks in a public business district.
Warren E. Burger: Well, your suggestion introduces a new factor when you said free speech, which they don't like. Laying aside whatever this record shows on other types of things allowed, suppose they said all political demonstrations start out, they don't want people for the war, against the war or for public housing or against the public housing, so that there's no discrimination. Does that change the situation?
Carl R. Neil: No, I don't think it does Your Honor. I think--
Warren E. Burger: Well, then it doesn't make any difference that they are excluding things they don't like either?
Carl R. Neil: Well, I think it doesn't result, Your Honor, because one of the things I am arguing is that if the rule the Lloyd Corporation seeks is adopted here, the result is not just total prohibition, result as the American Retail Federation amicus brief clearly says, is the right to choose which speech, which activity, which non-commercial enterprise will take place on these malls and walkways and not merely the right to say that none shall. So while it isn't and essential to my position and I think that it is a result will occur if my position is not adopted.
William H. Rehnquist: Do you think Logan Valley just automatically decide this case that --?
Carl R. Neil: Yes.
William H. Rehnquist: Well what about -- Logan Valley at least said -- noted that the activity was connected with the races.
Carl R. Neil: Yes, I agree, Mr. Justice Marshall has expressed statement that he is not commenting, the court is commenting on “unrelated speech.”
William H. Rehnquist: Is this unrelated speech?
Carl R. Neil: Well I suppose, we get an argument about what is related and un-related.
William H. Rehnquist: Well, it isn't related in the sense the activity was in Logan Valley.
Carl R. Neil: That's true, it's not related in a sense that it has anything particularly to do with any tenant of the shopping center. But let's examine that for a moment. Suppose we had written on our invitations or the literature handed out here, to the employees of Meier & Frank, please join us tonight at the Church for a Potluck Supper and help us express our opposition to war in Vietnam, is that related now? Do the leafletters have in their power to determine what is related and unrelated by doing something like that?
William H. Rehnquist: Let's assume that it isn't related -- your argument simply covers that aspect.
Carl R. Neil: Yes sir.
William H. Rehnquist: Let's assume that it isn't related, then what?
Carl R. Neil: Well, I think that once you get over the functional equivalence point that we are then just talking about reasonable regulation and rather than prohibition.
Potter Stewart: In Marsh v. Alabama, they were to hold this witnesses and I don't know how related that was to?
Carl R. Neil: Unrelated.
Potter Stewart: Business of that company town. Unrelated I should say under the Logan Valley.
Carl R. Neil: Yes, but notice how much we've jumped on it when we have said functionally equivalent, we ruled out all kinds of premises, we ruled out hotel apartment lobbies, private residences, interiors of businesses, and industrial plants for the most part. We are down to a pretty now -- .
Byron R. White: Hardware stores?
Carl R. Neil: Hardware stores, interiors of hardware stores at least. I don't know enough about the factual record in the Central Hardware case to comment on how appropriate or how close the factual situation that is.
William H. Rehnquist: What is the definition of a functional equivalent?
Carl R. Neil: It seems to me, first of all we don't stop at functional equivalent, functional equivalent of a public sidewalk in a public business district, so let's go back, of the business district. Lloyd center I would say is a business district, in the same sense of the company town in Marsh versus Alabama, it's the business district or Logan Valley Plaza was a business district. Secondly, the functional equivalent of a public sidewalk in such a district, clearly these pedestrian malls and walkway serve the same function of carrying pedestrians between businesses that a public sidewalk does, and what's more the activities that took place on them are much akin to the activities that might take place on public sidewalk. Perhaps they are even greater, because they are broader, and they can accommodate things like automobile displays where as a public sidewalk could not.
Thurgood Marshall: There's one functional equivalence to the Logan Valley is -- you admit you had sidewalks all around this discipline.
Carl R. Neil: Yes, I do Your Honor.
Thurgood Marshall: And you didn't in Logan Valley.
Carl R. Neil: That's true. The Logan Valley case says, your opinion points out --
Thurgood Marshall: Well, couldn't you have reached everybody in that mall?
Carl R. Neil: No, in this case?
Thurgood Marshall: Yeah.
Carl R. Neil: No Your Honor, we could not. A large number of people, and the exact number not shown by the record, arised and leaved solely by automobile.
Thurgood Marshall: Those automobiles turn down to public street?
Carl R. Neil: Yes, they do Your Honor.
Thurgood Marshall: But could you pick it there?
Carl R. Neil: Pardon me.
Thurgood Marshall: Could you leaflet there?
Carl R. Neil: Well I think that would be very difficult. Here's automobiles --
Thurgood Marshall: Oh, I agree -- that it would be less difficult if you had gone in large store it would be less difficult.
Carl R. Neil: Right.
Thurgood Marshall: I don't think that's the point.
Carl R. Neil: Well maybe it is, because I think it's so difficult that there actually are hazards to the safety of person if you are trying to do it, and is ineffective secondly, because you can't really handle leaflet to a driver removing automobile. Let's say, standing on the other side. Well, if I were a driver leaving --
Warren E. Burger: Where does the right to --
Thurgood Marshall: Go ahead. Okay,
Thurgood Marshall: I just want to know is there anything directly to show how many people walked on that sidewalk?
Carl R. Neil: The numbers are not shown as to how many come by bus --
Thurgood Marshall: No, no, how many are walking on the sidewalk?
Carl R. Neil: Well, the only people that are going to walk on that sidewalk are people who do not enter and leave from the shopping center by automobile. Therefore, they arrive by bus or on foot.
Thurgood Marshall: You don't know how many?
Carl R. Neil: The record doesn't show.
Warren E. Burger: Is the swimming pool here the functional equivalent of a public swimming pool of the same size and depth.
Carl R. Neil: Are you speaking of skating rink, are you?
Warren E. Burger: Isn't there is a swimming pool here too?
Carl R. Neil: Skating rink.
Warren E. Burger: Skating rink, that's right. Is the girl, I will figure skating on it, yes, is that the functional equivalent to the public counter part?
Carl R. Neil: I don't think so.
Warren E. Burger: What's the difference?
Carl R. Neil: They charged admission from one thing to this thing.
Warren E. Burger: Will they do in some public --.
Carl R. Neil: Yes, and I suppose you put it to me, what if I were to exclude people on the basis of race, or religion or something of that sort and I might be able to argue that it was, but I don't think it's crucial to whether the malls and walkways are functional equivalents of sidewalks.
Warren E. Burger: Well, I am trying to test what Justice Rehnquist was driving at. I would be perfectly candid in saying, I don't understand the concept. Functional equivalence. I don't see any boundaries on it.
Carl R. Neil: Well first of all, I limit it to the business districts, secondly I limit it to the functional equivalence of sidewalks, in the sense that sidewalks, they are using -- they are being used to carry pedestrian traffic between businesses within the business district and I think that you have then got to the functional equivalent provided that couple of other conditions don't exist, like in Taggart v. Weinacker, is apparently a sidewalk there was so narrow that any exercise of First Amendment speech or whatever would have unreasonably interfered with the owner's use of the property normally. I can concede that, in that situation, the property right balance is greater than the right of free speech. Similarly, if the physical conditions are such that I can distribute my leaflet to to everyone, Justice Marshall was talking about, that are going to be on a sidewalk and I can distribute it to everyone of them. Then there is no need for me go a private property to accomplish. I can do it just as easily on that public sidewalk but I think this record shows that there are a substantial number of people, that are not going to be reached by distributing on the public sidewalk, around the shopping center.
Warren E. Burger: But is it conceivable that some people, customers I am speaking of now, would refrain from going to a place in order to avoid having people harass them with pamphlets and leaflets?
Carl R. Neil: Well, yes it is conceivable. It is also conceivable to me that Lloyd Corporation or the City of Portland, may adopt regulations that prevent people from handing out leaflets in any manner that harasses these people, so that you must do it if you do it at all peacefully.
Warren E. Burger: In the recent decisions of this court, you will find the enforcement of such statutes is not as easy as writing out to them.
Carl R. Neil: In what sense, I don't follow it.
Warren E. Burger: I was thinking of some of the cases in which we struck down city ordinances because of the difficulty of describing the limitation.
Carl R. Neil: That's true.
Warren E. Burger: I am speaking now of holdings in which I have joined, addressing myself to the difficulty, in which you move over rather rapidly.
Carl R. Neil: Well, I agree that in First Amendment cases, even on public sidewalks that there are difficulties of regulation. This court has had many cases like Cox v. New Hampshire, Schneider v. State, all of this line of cases where you have got permits and the question is, is the permit valid or the statute valid because it's too broad or too vague, are difficulties in regulating anything relating to First Amendment, speech and activity. But we do it in the case of public sidewalks. It seems to me it can be done in a case of the functional equivalence of public sidewalks, will happen to be on private property. Thank you.
Warren E. Burger: Very well, your time is up. Your time has been consumed Mr. Black. Thank you gentlemen. The case is submitted.