Food Employees v. Logan Plaza
Decided on May 20, 1968; 391 US 308

The First Amendment right of picketers in a shopping center is considered


A. Issues Discussed:  1st Amendment (Press, Speech, Association), property, labor unions

B. Legal Questions Presented:

1. Are shopping centers “public forums” where all citizens have a 1st Amendment right to petition and engage in peaceful expression? 

2. Is it unconstitutional to enjoin peaceful picketing at a shopping center?


A. Background:

Respondent Logan Valley Plaza, Inc. owned a large shopping center complex located near the city of Altoona, Pennsylvania.  Respondent Weis Markets (Weis) owned and operated a supermarket in the shopping center where he employed only nonunion employees.  A few days after  the supermarket opened for business, Weis posted a sign on the exterior of its building prohibiting trespassing or soliciting by anyone other than its employees on its porch or parking lot.  Members of Amalgamated Food Employees Union (petitioner) began picketing Weis. They carried signs stating that the Weis Market was nonunion and that its employees were not “receiving union wages or other union benefits.”  The picketing was carried out almost entirely in the parcel pickup area and a portion of the adjacent parking lot. The picketing was peaceful at all times and there were no threats or violence; however, it created some traffic in the parcel pickup area.

Respondents Weis and Logan brought an action to prohibit petitioners from picketing.  A Pennsylvania Court of Common Pleas issued an injunction, prohibiting petitioners from picketing and trespassing upon the Weis storeroom, porch, parcel pick-up area, and the Logan Plaza parking area, thus preventing picketing inside the shopping center.  The court held the injunction was justified in order to protect respondents' property rights and because the picketing was unlawfully aimed at coercing Weis to compel its employees to join a union.  The court rejected petitioners' claim that they had a First Amendment right to picket within the confines of the shopping center. The Pennsylvania Supreme Court affirmed the issuance of the injunction on the ground that petitioners' conduct constituted a trespass on respondents' property.  The US Supreme Court granted certiorari.
B. Counsel of Record:
Opposing Side
Bernard Dunau argued the cause for petitioners. With him on the brief was Lester Asher.

Robert Lewis argued the cause for respondents. With him on the brief was Sidney Apfelbaum.

C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Marvin M. Karpatkin and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

Other briefs of amicus curiae urging reversal  were filed by
Solicitor General Griswold, Arnold Ordman, Dominick L. Manoli, and Norton J. Come for the National Labor Relations Board; by J. Albert Woll, Laurence Gold, and Thomas E. Harris for the American Federation of Labor and Congress of Industrial Organizations; by S. G. Lippman and Tim Bornstein for the Retail Clerks International Association.
Briefs of amici curiae urging affirmance were filed by Fred H. Daugherty for the International Council of Shopping Centers, Inc., and by Charles J. Barnhill for the American Retail Federation.

"We start from the premise that peaceful picketing carried on in a location open generally to the public is, absent other factors involving the purpose or manner of the picketing, protected by the First Amendment... [P]icketing involves elements of both speech and conduct, i.e., patrolling, and has indicated that because of this intermingling of protected and unprotected elements, picketing can be subjected to controls that would not be constitutionally permissible in the case of pure speech. Nevertheless, no case decided by this Court can be found to support the proposition that the nonspeech aspects of peaceful picketing are so great as to render the provisions of the First Amendment inapplicable to it altogether...

This Court has also held, in Marsh v. Alabama, that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held...

Here the roadways provided for vehicular movement within the mall and the sidewalks leading from building to building are the functional equivalents of the streets and sidewalks of a normal municipal business district. The shopping center premises are open to the public to the same extent as the commercial center of a normal town...

All we decide here is that because the shopping center serves as the community business block ‘and is freely accessible and open to the people in the area and those passing through,’ the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put...

It is therefore clear that the restraints on picketing and trespassing approved by the Pennsylvania courts here substantially hinder the communication of the ideas which petitioners seek to express to the patrons of Weis...

Therefore, as to the sufficiency of respondents' ownership of the Logan Valley Mall premises as the sole support of the injunction issued against petitioners, we simply repeat what was said in Marsh v. Alabama, ‘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.’

...The judgment of the Supreme Court of Pennsylvania is reversed and the case is remanded for further proceedings not inconsistent with this opinion."
Justice Vote: 6 Pro vs. 3 Con

  • Marshall Pro (Wrote majority opinion)
  • Douglas Pro (Wrote concurring  opinion)
  • Warran Pro (Joined majority opinion)
  • Stewart  Pro (Joined majority opinion)
  • Brennan Pro (Joined majority opinion)
  • Fortas Pro (Joined majority opinion)
  • White Con (Wrote dissenting opinion)
  • Harlan Con (Wrote dissenting opinion)
  • Black Con (Wrote dissenting opinion)

The ACLU filed as amicus urging reversal; the US Supreme Court reversed the ruling of the Supreme Court of Pennsylvania in a 6-3 vote, giving the ACLU an apparent win.