Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74 C 2619 - George N. Leighton, Judge.
Pell, Sprecher and Wood, circuit Judges. Sprecher, Circuit Judge, concurring.
The Illinois Migrant Council (IMC),*fn1 after being denied access to the Prince Crossing Farm, which is private property owned by the Campbell Soup Company (Company), filed a complaint in the district court seeking declaratory and injunctive relief and punitive and actual damages. IMC sought to enter the housing area of the Company's property to communicate with residents regarding educational, health, and vocational programs. The district court dismissed IMC's complaint for failure to state a claim upon which relief could be granted, and IMC appealed. This court reversed stating that IMC stated a claim with respect to the First and Fourteenth Amendment violations. The court, construing the alleged facts in the light most favorable to the plaintiffs and drawing all reasonable inferences therefrom, concluded the IMC should be permitted to attempt to prove that the Prince Crossing Farm was a company town within the meaning of Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946), thus establishing the requisite state action on which to base a § 1983 claim for violation of First and Fourteenth Amendment rights. Illinois Migrant Council v. Campbell Soup Company, 519 F.2d 391 (7th Cir. 1975).
On remand, both parties filed motions for summary judgment. The district court granted IMC's motion and entered a judgment permanently enjoining the Company from interfering with IMC's ingress to and egress from the residential area of Prince Crossing Farm and IMC's communications with residents of the farm. The district court held that Prince Crossing was a company town within the meaning of Marsh v. Alabama and thus that the Company's actions preventing IMC's access to the Prince Crossing residential area constituted state action. The Company appealed.
Generally, the constitutional guarantee of free speech protects only against abridgment by government. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973). Accordingly, one must find some sort of state action to establish a violation of First Amendment free speech rights. In Marsh v. Alabama, however, the Supreme Court fashioned an exception to this state action analysis, or at least devised a legal fiction to fit within it. That case involved a Jehovah's Witness who was prohibited from distributing literature on a sidewalk in a so-called company town which was owned by the Gulf Shipbuilding Corporation.*fn2 The Court noted that the town, although wholly owned by the corporation, functioned like any other municipality, and held that First and Fourteenth Amendment guarantees extended onto the private property of this company town. Thus, whenever private property includes all the components of a town, it becomes sufficiently state-like to fulfill the state-action requirement for invoking First Amendment rights.
Determining the threshold of components necessary to constitute a company town under Marsh requires a detailed factual analysis. Before doing so, however, for legal background purposes, we will look at subsequent Supreme Court opinions which addressed the Marsh doctrine, although these developments do not alter the doctrine as applied in the case before us.
In Food Employees v. Logan Valley Plaza, Inc., 391 U.S. 308, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968), picketers were protesting employment practices of a store within a shopping center. The store and shopping center obtained an injunction prohibiting the picketing as a trespass. The Supreme Court reversed on the theory that the shopping center was the "functional equivalent of the business district . . . . in Marsh." Id. at 318. Justice Black, who wrote the majority opinion in Marsh, wrote one of the three dissents in Logan Valley and expressed his view that Marsh should not apply to a shopping center. He was of the opinion that Marsh should be limited to situations in which the private property "had all the attributes of a town and was exactly like any other town . . . ." Id. at 331.
Four years later in Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L. Ed. 2d 131, 92 S. Ct. 2219 (1972), the Court again addressed the application of Marsh to a shopping center and rejected such an application. It distinguished Logan Valley on the ground that the speech in Logan Valley was directly related to the use to which the shopping center property was being put, whereas in Lloyd the distribution of anti-war handbills was unrelated to the shopping center's operations.
This distinction, as well as the vitality of Logan Valley, was interred by the Court's recent decision in Hudgens v. N.L.R.B., 424 U.S. 507, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1976). The Court reasoned that if a shopping center was the functional equivalent of a town, thus satisfying the Marsh doctrine, then First Amendment rights cannot depend on the content of the speech, that is whether or not the speech is related to the property. Having rejected the Lloyd distinction, the Court returned to a strict Marsh analysis and held that a shopping center was not the functional equivalent of a town, ergo no violation of freedom of speech.
It is the Marsh doctrine, unscathed by Logan Valley and Lloyd, and reaffirmed by Hudgens, that we now will apply.
Before examining in detail the facts of the instant case to determine whether Prince Crossing is a company town, it is instructive to examine some of the language in Marsh. The Court described the company town as follows:
It has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block ' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office . . . .
In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the ...