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Does ownership convey complete dominion?
The First Amendment does not apply to private parties, only the State, therefore a private business can prohibit speech with impunity. That’s the familiar argument. What is not so familiar is that that’s not the law of the land. We do respect the rule of law don’t we? Most everyone in America just spent the last week thumping their chests and proclaiming utmost respect for the rule of law. OK, then. Let’s follow the existing law. In a direct conflict between property rights and the rights protected by the First Amendment, the applicable law is contained in the 1946 Supreme Court case of Marsh v. Alabama. Spoiler alert – the First Amendment wins.
The town of Chickasaw, AL, was a “company town” of the old-school meaning. The town was owned by the Gulf Shipbuilding Corporation. It was private property.
A Jehovah’s Witness named Ms. Marsh undertook to distribute religious literature on the sidewalks of Chickasaw. In the stores, the corporation had posted a notice which read as follows:
“This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”
Marsh was warned that she could not distribute the literature without a permit, and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff — an employee of Gulf Shipbuilding — arrested her, and she was charged in the state court with trespassing.
The Court ruled in favor of Marsh and the First Amendment, arguing…
We do not agree that the corporation’s property interests settle the question. … The State urges, in effect, that the corporation’s right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. 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.
That is still the law of the land. Let’s respect it.Published in