Marsh v. Alabama, 326 U.S. 501; 66 S. Ct. 276; 90 L. Ed. 265 (1946)

Facts—Grace Marsh, a Jehovah’s Witness, was distributing religious literature on the street of a privately owned town named Chickasaw that was owned by the Gulf Shipbuilding Corporation and that adjoined Mobile, Alabama.

She was warned that she could not distribute literature without a permit and she would not be issued a permit. She refused to obey and was arrested for violating the Alabama Code, which makes it a crime to enter upon or remain on the premises of another after being warned not to do so.

Question—Is the Alabama statute constitutional?

Decision—No.

Reasons—J. Black (5–3). A state statute seeking to punish the distribution of religious literature clearly violates the First and Fourteenth Amendments to the Constitution. One may remain on private property against the will of the owner and contrary to the law of the state so long as the only objection to his presence is that he is exercising an asserted right to spread his religious views.

“When we balance the Constitutional rights of owners of property 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. As we have stated before, the right to exercise the liberties safeguarded by the First Amendment ‘lies at the foundation of free government by free men’ and we must in all cases ‘weigh the circumstances and . . . appraise . . . reasons in support of the regulation . . . of the rights,’ Schneider v. State, 308 U.S. 147. In our view the circumstances that the property rights to the premises where the deprivation of liberty, here involved, took place, were held by others than the public, is not sufficient to justify the state’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. In so far as the state has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand.”

J. Reed authored a dissent in which he argued that the majority opinion was unwisely extending the right of religious speech from public to private property.

Note—In Amalgamated Food Employees Union v. Logan Valley Plaza (1968), the Court held that picketing of a private shopping center was like picketing at a downtown “business block.” Four years later in Lloyd Corporation v. Tanner (1972), the Court retreated, holding that a private mall may prohibit handbill distribution when it is unrelated to the shopping center. Four years later again in Hudgens v. National Labor Relations Board (1976), the Court overruled Logan Valley. Finally, in Pruneyard Shopping Center v. Robins (1980), the Court returned to the Marsh principle by upholding a California Supreme Court decision on expansive state free speech grounds. Contrast Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus (1987).