Summary of Lloyd Corp., LTD. v. Tanner, 407 U.S. 551 (1972) 

Defendant/Appellant: Lloyd Corp., owner of a private shopping mall.

Plaintiff/Respondent: Some damn protesters

Facts: D owns a private shopping mall which has about 60 commercial tenants and the mall in total covers about 50 acres.  D did not allow any civil or political use of its property other some few exceptions.  Respondents (P) were passing invitations to a meeting of the “Resistance Community” in the mall in an orderly fashion and they were told by the security guards that they cannot conduct such activities on the property.  They were told that they can go outside and pass out invitations on the public street.

Procedure: The U.S. District court ruled for P claiming that P had 1^st Amendment right to pass out handbills on D’s property.  The Court of Appeals affirmed.

Issue: Can the owner of a privately owned shopping center prohibit people from distributing handbills that are unrelated to the shopping center’s operations? (P’s 1^st Amendment rights vs. D’s 5^th and 14^th Amendments rights)

Holding: Yes

Rationale: The lower courts used Marsh v. Alabama to get to their rulings against D.  In that case, the defendant ran a company town that had every feature of a regular town and the only difference was that it was based on private property.  The ct. in that case ruled that “…where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town’s sidewalks and streets.”  In the current case, the situation is different.  P claims that D’s shopping mall is just like a company town, but that argument is not convincing.  In the current case, D has not stepped into the government’s shoes by inviting public to its property.  According to the ct., a property does not lose its private character just because public is generally invited to use it for designated purposes.  Therefore, D cannot be forced to respect P’s 1^stAmendment rights when P can be considered a trespasser on D’s property.

Dissent (Justice Thurgood Marshall): “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.” In the present case, D’s shopping mall provided every type of service to its patrons.  It attracts a large number of Portland population and for organizations that cannot offer TV or radio rates, this is the best place for them to reach out to the people.  So the 1^st Amendment Rights of P are on the line here and compared to these rights, D’s property rights are pale.  D argues that few of its patrons will be disturbed by P’s activities, but that does not tilt the balance in his favor.