*1 peace . . . necessary preserve shall bo . . . as followed was to be procedure This friendship unbroken.” for the equitable provision “other made Congress until the petitioner language, upon latter This purpose.” the United upon imposing duty strongly most relies Reservation the whole jurisdiction over exercise States to to offenses committed State, even as the exclusion of interpreted be properly whites, cannot against by whites in treaties emphasis entire asks. petitioner has with Indian affairs dealing enactments Congressional Indians the treatment upon always been focused Generally emphasis no their property. themselves courts state or United States on whether placed been happened for conduct which offenders white try should reservation, did not but which an Indian upon place take Treaty nor Neither the the Indians. directly affect holding non-Indians offenses requires other disturbing peace and order of non-Indians against punish. power New York’s beyond are Salamanca
Affirmed. no took in the consideration part MR. Jacicson Justice this case. decision
MARSH v. ALABAMA. Argued January 7, 1945. Decided 1946. December No. *2 Hayden Mr. Covington, C. with whom Mr. Grover C. brief, Powell was on the for appellant. McQueen, Attorney
William M. General of Alabama, Harris, and John 0. Assistant Attorney General, submitted appellee. Mr. opinion delivered of the Court. Black Justice In this case we are asked to decide State, whether a con- sistently with First and Fourteenth Amendments, can impose person criminal punishment on who undertakes premises distribute literature on the of a com- pany-owned contrary town to the wishes town’s management. Mobile, town, The a suburb of Alabama, Chickasaw, as known is owned Gulf Shipbuilding Except Corporation. for that it all the characteristics other American town. property consists of streets, system sewers, residential buildings, a sewage plant and a disposal “business block” on which business are A places situated. deputy County Mobile Sheriff, paid by the as the company, police- serves town’s man. Merchants and service establishments have rented the stores and business on the block places business places the United States uses one of the post as a office from which six carriers deliver mail to the people of Chick- adjacent asaw and the area. The town and the surround- ing neighborhood, which distinguished can not be from property by anyone the Gulf prop- familiar with the are erty lines, thickly settled, according to all indica- regular tions the residents use the business block their so, center. To do shopping they now, they have for many years, company-owned make use of a paved street alongside and sidewalk located store in order to fronts and leave the the post Intersecting enter stores and office. roads at each end of the block company-owned business into a public highway parallel lead four-lane runs *3 thirty feet. to the business block at a distance of There to nothing stop highway coming traffic from onto the may make block and arrival a traveler free upon business In facilities available there. short the town and use of the freely are accessible to and used shopping its district nothing distinguish there is to general and shopping except from other town and center them property belongs private the title to the to a fact that corporation. Witness, a came onto the sidewalk
Appellant, Jehovah’s officeand under- just described, post stood near the we religious literature. In the stores the to distribute took notice which read posted had a as follows: corporation and Permis- Property, Is Private Without Written “This Street, Vendor, Agent House or sion, Solicitation No Appellant Permitted.” was warned Kind Will Be Any the literature permit not distribute without a that she could permit told that no would be issued to her. pro- She rule company that the could not be constitutionally tested prohibit distributing so as to her from applied writings. she was asked to leave the When sidewalk and deputy Chickasaw declined. The sheriff arrested her she charged Title violating she was court with state 504 Alabama makes it a crime Code which 426§ haying remain on the another after premises
to enter or
Appellant
been
contended that
warned
to do so.
applicable
state
her activities
construe the
statute
her
to freedom
abridge
press
would
the First and Fourteenth
to the
contrary to
Amendments
rejected
This contention
and she was
Constitution.
was
Court
Appeals
The Alabama
affirmed the
convicted.
holding
applied
the statute as
was con-
conviction,
because the title to the
was
stitutional
sidewalk
cor-
poration
and because
use
the sidewalk had not
give
a
been such as to
under
presumption
rise
Alabama
irrevocable
law of
dedication to the
public.
its
So. 2d
Supreme
558. The State
Court denied certiorari, 246 Ala.
2d
So.
and the case is here on appeal under
(a)
Code,
of the Judicial
28 U.
(a).
§
S. C. 344§
Had the title to Chickasaw belonged not to a private
municipal
but to a
corporation and had appellant been
violating
arrested for
a municipal ordinance rather than
ruling by
appointed
a
those
the corporation manage
town it
company
would have been
that appellant's
clear
must
conviction
be reversed. Under our decision in Lovell
U.
Griffin,
and others which have followed
case,1
neither a
nor municipality
can com-
pletely bar the
distribution
literature containing re-
*4
ligious or
ideas on its
political
streets,
sidewalks and
places
right
or make the
to
dependent
distribute
on a
tax or permit
flat
to be
by
license
issued
an official who
it at
deny
could
will.
haveWe
also held that an ordinance
completely prohibiting the dissemination of ideas on the
city streets cannot be justified on
ground
the
that
1Hague
O.,
496;
v. C. I.
307
State,
U. S.
Schneider v.
308 U. S.
147; Thornhill Alabama,
88;
v.
Connecticut,
310 U. S.
Cantwell v.
296;
310 U. S.
dissent of Chief Justice Stone in
Opelika,
Jones v.
316
600,
584,
adopted
U. S.
opinion
103;
Court,
as the
Largent
Texas,
418;
v.
318
Pennsylvania,
Murdoch v.
105;
McCormick,
Follett v.
505
y.
municipality
legal
holds
title to them.
Jamison
Texas,
506 to the inhabitants of corporation’s right control Chick regu with of a homeowner to coextensive
asaw is
guests.
accept
cannot
of his
We
late
conduct
Ownership
always
not
mean absolute
contention.
does
opens
owner,
advantage,
dominion.
more an
his
more
general,
public
for use
up
property
his
statutory
and
do his
become circumscribed
Republic
it.
rights of
use
Cf.
constitutional
those who
Board,
n. 8.
793, 798, 802,
Labor
U. S.
Corp.
Aviation
324
v.
bridges, ferries,
held
turn
Thus,
privately
owners
freely
them
pikes
operate
and railroads
are built and
farm. Since these facilities
farmer does his
their
and since
benefit
operated primarily
function,
subject to
essentially
it is
operation is
directly
And,
the issue is not
regulation.3
though
state
want
out
us,
point
one before
we do
analogous to the
regulation may
not result
of illustration
such
by way
by privately
even
owned
facilities,
these
operation
an
unconstitutionally interferes with
which
companies,
Rich
Port
against
interstate commerce.
discriminates
County, supra,
U. S. at
mond
Hudson
Ferry v.
328-329;
Highway Dept.
cf.
cited, pp.
cases
South Carolina
Bros.,
Had the
here
corporation
We do not think it any significant makes constitutional relationship difference as to the between the the of State, owner and those of the that here the instead corporation operate of permitting per- the highway, town, operate mitted it to use its as a a “business and a and sidewalk on that busi- block” the town street Keokuk, Barney 324, U. block. Cf. S. ness v. municipality owns or corporation possesses Whether a in- in either case has an identical town the the community functioning in the such manner terest communication remain free. As the channels of we deprive people corporation more certainly can no of And against religion com than it can discriminate press and freedom of Opelika, dissenting opinion in Jones U. merce. In his opinion Court, adopted as the later was which following pertinent made the state Justice Stone 103, Mr. Chief explicitly guaranteed religion, by press “Freedom ment: entitled to the same freedom from Constitution, must at least be thought gen been that the more taxation which it has burdensome clause has extended to interstate the commerce phraseology eral as to this doubts be entertained Court’s commerce. Whatever Congressional legislation, from relieve, unaided bur function to clause, Gwin, see taxation under the commerce White & densome 434, 441, 446-55; Henneford, 305 McCarroll Dixie Prince v. thought that that function is Lines, 176, 184-85,it cannot be wanting explicit guaranties speech, press and under freedom religion.” 316 S. at 610-11. U. stated, heretofore the town of Chickasaw does not differently from other
function town. The “business community shopping block” center and is serves open people the area and freely accessible through. managers passing appointed those corporation liberty press cannot curtail consistently purposes of these with the people statute, Constitutional guarantees, and a state one involved, by criminally here such action *7 enforces liter- punishing attempt those who to distribute clearly ature Fourteenth Amend- violates the First and ments to the Constitution. in
Many people company- in the United States live just of munic- people, owned towns.5 These as residents country. are free of their Just ipalities, citizens af- they all other citizens must make decisions which community fect the welfare of and nation. To act as In good they citizens must be informed. order to enable them to informed their information must be properly be no depriving There is more reason for these uncensored. guaranteed by and Four- of the liberties the First people industry alone, approximately one-half of In the bituminous coal company-owned in houses in in States lived the miners the United percentage per cent in from 1922-23. The varied from period per per Kentucky, almost 80 cent Illinois and Indiana and Commission, Report, Part Virginia. Coal cent in West Plight Morris, of the Coal III, pp. 1467, 1469 summarized statistics VI, most recent Miner, Philadelphia p. 86. The Ch. Housing by Employers in the Magnusson, we found available are (Misc. Bulletin No. States, of Labor Statistics Bureau United Labor, Wage and Department of Ser.) p. States 11. See also United Manufacturing Deductions, Pay Roll Union Division, Hour Data on 1941; Rhyne, Southern Georgia, Some Company, Point, June Union (Study Hill, 1930 Villages, Chapel Their Cotton Mill Workers and in Social for Research completed under the direction of the Institute Comment, Urban Carolina); University at the of North Science Redevelopment, L. 54 Yale J.
teenth Amendments than there is for curtailing these respect freedoms with to any other citizen.6 When we balance the Constitutional rights of owners 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.7 As we have stated before, to exercise the liberties safeguarded by the First Amendment “lies at the founda- tion of free government by free men” and we must in all cases “weigh the circumstances . . . appraise the . . . in support reasons ... regulation ... rights.” State, Schneider v. 147,161. In our view the circumstance that the property rights to the premises where deprivation liberty, here involved, took place, were held than public, others is not suffi- cient justify permitting State’s a corporation to govern a community citizens so as restrict their fun- damental liberties and the enforcement of such restraint application of a state statute. Insofar as the State attempted to impose punishment criminal on appel- *8 undertaking lant for to distribute literature in a company its action cannot town, stand. The case re- suppression company As to the of civil liberties towns and the need of those who live there for Constitutional see the protection, summary of facts aired before the Senate Committee on Education Rights Labor, Speech Labor, Hearings and Violations Free and pursuant 266, Cong., Sess., 1937, Res. 74th 2d S. summarized in Wage Bowden, Earners, Freedom Annals of The American Acad emy 185; p. Chafee, of Political and Social Nov. Z. Science, Inquiring (New 173-74; York, 1928), pp. Pamphlet Mind published Operators’ Special in 1923 the Bituminous Committee under the Company Town; Commission, supra, title The Coal Report, U. S. Part III, p. 1331. supra, 608; Pennsyl Opelika, Jones v. S. at Murdock v. U. vania, supra, 115; McCormick, supra, Follett v. U. S. at at 577. proceedings remanded for further the cause
versed opinion. with this inconsistent and remanded.
Reversed took no part consideration Mr. Justice Jackson of this case. or decision Frankfurter, concurring. Justice
Mr. Opelika, Jones long prevailed as the views which v. So with 584, 600; in connection 105; 319 U. Martin Pennsylvania, Murdock S. Struthers, 141, express 319 U. law of the Constitu- legal significance in I am unable to find the fact that tion, in which the Constitutional freedoms of a town happens company-owned. to be speech are invoked ideas, religious purveyors decisions accorded the These position,” Pennsyl- Murdock v. otherwise, preferred “a vania, relieving at to the extent of them supra even non-discriminatory unhampering duty from an bearing peace their share of the cost maintaining society. amenities of a civilized Constitu- and the other ought such a reach not to privileges having depend tional extent of a State court’s notion “dedication” upon public purposes. Local determina- private property govern technical matters controversies tions of such af- But when decisions in- fecting property. courts local are so interwoven with the decision volving matters necessarily of Constitutional that one question local other, questions State determination of involves right. control the Federal Constitutional cannot A rise to a company-owned gives town net-work of these, judicial organ relations. As to of a final But a town say. company-owned State has the is a *9 In community aspects town. its it does not differ from other community aspects towns. These decisive are adjusting us, the relations now particu- before and more adjudicating the larly clash freedoms which the Bill designed Rights was freedom resolve —the of the community to life and regulate its the freedom of the individual to exercise his to disseminate his ideas. Title to property as defined State law controls it property relations; cannot control of civil issues liberties precisely which arise town company because a is a town congeries as well of property similarly as relations. And finding the technical distinctions on which a of “trespass” depends so often are too tenuous to control decision re- garding scope guaranteed vital liberties by the Constitution.
Accordingly, already I have indicated, so long guarantees scope of of the Due Process Clause of the by absorption Fourteenth Amendment re- First that which the gave mains Court to it in the series cases in the October Term, circumstances present case seem to me clearly to fall within it. And so I agree the opinion except with of the Court, that portion it arguments of which relies on drawn from the restric- tions which the imposes Commerce Clause on regu- lation It of commerce. not seem me does to further analysis Constitutional help seek solution of problems arising delicate under the First Amendment very problems from the different order of Com- presents. merce Clause The latter involves an accom- modation between National and State powers operating in the field. Where same the First Amendment applies, governmental it is power a denial all in our Federal system. Reed, dissenting.
Mr. Justice Former decisions this Court have interpreted gener- ously Constitutional of people in this Land to
512 religion, speech of and of press.1
exercise freedom of been held and is not now this by opinion It has never of that these are absolute and unlimited Court respect place either in to the manner or the of their exe present rcise.2 What the decision a prin establishes as remain on ciple may private property against is one contrary the will of the owner and to the law of the state objection long only to his presence so is that he is exercising an to spread religious asserted there his Washington Club, views. See Marrone v. Jockey 227 by U. S. 633. This is the first case to extend priv law the ilege religious beyond public exercises places or to pri vate without the assent of places Compare owner. Struthers, 319 U. Martin v. S. 141. permits the rule now announced
As intrusion, this with- possibility protection out the property by law, and apparently equally applicable to the freedom speech and the it press, appropriate seems to express a dissent to this, us, novel Constitutional doctrine. course, Of such principle subsequently be by restricted this Court to precise facts of this case—that is to private property company in a town where the owner for his own advantage permitted a restricted by use his licensees and distinctions degree invitees. are of Such require new arbitrary lines, judicially drawn, instead of those hitherto by legislation established and precedent. power While the 1 Griffin, 444; Hague Lovell O., v. 303 U. S. v. C. I. 496; 307 U. S. State, 147; Alabama, Schneider v. 308 U. S. Thornhill v. 310 88; U. S. Connecticut, 296; Cantwell v. 310 U. S. dissent of Chief Justice Stone Opelika, 584, 600, adopted in Jones v. 316 U. S. opinion as the 103; Texas, Court, 319 U. S. Jamison v. 413; Largent 318 U. S. v. Texas, 418; Pennsylvania, 318 Murdock U. S. v. 105; 319 U. S. Martin Struthers, 141; McCormick, U. S. Follett v. 321 U. S. 573. States, Schenck 47; v. United S.U. Gitlow v. York, New 652; Minnesota, 697; Near v. S.U. Cantwell v. Connecticut, 296; Chaplinsky Hampshire, 568; v. New Prince Massachusetts, 321 U. Court, interpreter of this as the Constitution to de- what use real property termine the owner makes subject, will, at to the practice reasonable exercises be strangers, doubted, cannot we *11 nothing principles find in the Amendment, the First adopted Fourteenth, justifies now into which their of this to the facts case.3 application Both Federal and Alabama law permit, so far as we are towns. aware, company By that an we mean area occu- houses, numerous connected pied by by passways, fenced or not, may choose. owners These communities may be essential to furnish proper and living convenient employees conditions for on operations isolated in lumber- mining, high ing, production of explosives large-scale and farming. imposed The restrictions by the owners upon occupants galling are sometimes to the employees and may unreasonable to appear outsiders. they Unless fall prohibition legal under the some rule, however, they adjustment for matter between are a owner licensee, legislation. by appropriate Compare or Western Turf Greenberg, 204 U. Assn. v. generally a statute
Alabama has applicable to all pri- It is Title vately premises. owned 14, 426, § Alabama far pertinent so Code reads as follows: after “Trespass warning. Any person who, without —
legal good excuse, cause or into enters the dwelling house premises another, on the or after having been warned, preceding, within six months not do or so; person, who, having entered into the dwelling house or on the premises having another without been warned within so, not to six months do and fails or refuses, without legal 3 “Congress respecting shall make no law an establishment of re ligion, prohibiting or free thereof; exercise abridging or the free speech, dom press; or of the or the people peaceably to assemble, petition and to for grievances.” Government a redress of First Amendment to the Constitution.
r-H IÓ on immediately being to leave excuse, good or
cause person possession, do requested so or ordered conviction, shall, on be fined agent representative, his im- dollars, also be than one hundred more jail, or sentenced to county hard labor prisoned than three county, for not more months.” distributing pamphlets pri- on a was Appellant thirty or sidewalk feet vately passway removed owned re- highway of the State Alabama and a public from after private premises these an authorized mained on from the off. We do not understand record get order to objection nearby appellant’s was use of that there under our she could highway right- decisions her a few continued activities feet from the fully have An upon using. property may owner of insisted spot she for the to use the willing private well been very *12 yet and have been purposes for business passway unwilling for trades or a location for space street the to furnish by religious pass- exhortations itinerants. The practice of not put in was to different use question here way that lead passways privately to private than other owned hotels resort or other areas, places, amusement businesses. of the to pub- no dedication sidewalk the had been There implied. Alabama so decided and use, express we lic that conclusion. Ala- accepts that this Court understand by that violated her bama, also, appellant decided activi- statute. above-quoted the state ties to the fact that the owners of calls attention Court ferries, and utilities, bridges, turnpikes railroads of and are regulation to rates forbidden subject state are This quite commerce. is against interstate discriminate to to that imply if the Court means the but we doubt true may against be utilized, the of these utilities property of the kind exercises wishes, for companies’ question. duty furnishing
A state moral does religious en- information, education and opportunity those inhabitants, including who live lightenment to its adjudged been company towns, but it has not heretofore commandeer, compensation, it must without that obliga- out carry that private property of other citizens tion. Heretofore this Court sustained protecting full appropriate statute, under an employees, union mem- organization, to solicit employee freedom property time on the em- bership nonworking an against prohibition. This express and his is because ployer right of impediment organiza- an to the prohibition is governs a statute which re- protected tion which if employers employees lation between when employers’ premises are admitted as licensees. latter recognized opinion It in the the freedom of was the result of a statute and was regulatory solicitation was right. Republic Corp. Aviation not a Constitutional Board, Labor In the area which is Amendment, this the First guarantees covered point out owner Court has been careful against the intrusion himself protect Struthers, in Martin strangers. Although summonsing oc- forbidding 141, an ordinance was held invalid receive handbills of a cupants dwelling speech press, in conflict the freedom of with because warning, after that, pointed page out at Court this *13 annoyance.4 from be protected would property owner the by easily tradi be controlled dangers can so distribution “The right the full to leaving each legal methods, to householder tional stringent visitors, strangers as that receive he will whether decide by the Con forbidden purpose no but can serve prohibition of ideas. of the dissemination stitution, the naked restriction who enter onto punishes persons “Traditionally law American the to having the owner been warned after of another property the at least warning exist in statutes trespass after General keep off. powerless which is now held Alabama statute very The Shipbuilding Corpora- of the Gulf protect property to cited, from this there note notice, trespass was tion, after householder, after protect that it would 10, to show expressed ideas was right The to communicate notice. Texas, as follows: in us Jamison on a which state rightfully is street “But one who him there as else- carries with to open has left in an right express to his views the Constitutional where orderly fashion.” right man the to every guarantees
Our Constitution An ele- orderly in fashion. essential his an express views right man have a that the shall also “orderly” ment of is exposition. for he his place chooses use protects as well as owner, the Constitution outweighed by the inter- speech, free are though trespasses he behalf trespasser, even ests of say cannot speech. free We Jehovah’s license, which privilege claim the of a has Witnesses can meetings their other granted, pri- to hold never been the owner merely because has admitted the places, vate limited purposes. though them for other Even point required reached the where this Court is we have open their for private property owners to force or propaganda there of activities dis- practice scope twenty states, statutes of narrower are on while similar which, more. know of no state at least twelve states We books of effect, person makes a ordinance criminal as does the Struthers pur- for an innocent if of another trespasser he enters stay away. owners to explicit command from the pose without an Municipal proposed Institute of Law Officers The National it an regulation member cities which would make offense to its form of appropriately ring who has any person to the bell of a householder unwilling This or similar to be disturbed. indicated that he literature regulation decision as to whether distributers of leaves the belongs lawfully it the homeowner call at a home where —with Struthers, 147-48. Martin v. himself.” *14 owner, tasteful to the because of interest freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, engage was free to in such practices on the public highways, becoming without trespasser on the company’s property.
The Chief and Mr. join Justice Justice Burton this dissent.
TUCKER v. TEXAS. Argued No. 87. December January 7, 1945. Decided