Marsh v. Alabama

Marsh v. Alabama

Argued December 7, 1945
Decided January 7, 1946
Full case name Marsh v. State of Alabama

326 U.S. 501 (more)

Prior history Defendant found guilty in Alabama Circuit Court; Alabama Court of Appeals affirmed; Alabama Supreme Court denied certiorari
Subsequent history Reversed and Remanded
Constitutional protections of free speech under First and Fourteenth Amendments still applicable within the confines of a town owned by a private entity.
Court membership
Case opinions
Majority Black, joined by Douglas, Murphy, Rutledge
Concurrence Frankfurter
Dissent Reed, joined by Stone, Burton
Jackson took no part in the consideration or decision of the case.
Laws applied
U.S. Const., amend. I, amend. XIV

Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the United States Supreme Court, in which it ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk, notwithstanding the fact that the sidewalk where the distribution was taking place was part of a privately owned company town. The Court based its ruling on the provisions of the First Amendment and Fourteenth Amendment.


The town of Chickasaw, Alabama was a company town near Mobile, Alabama which was owned and operated by the Gulf Shipbuilding Corporation ("Gulf"). Aside from the fact that it was owned by a private entity, the town exhibited the general characteristics of a more traditional settlement. The town's policeman was a deputy from the Mobile County Sheriff's Department who was paid by Gulf. The town was surrounded by a number of adjacent neighborhoods which were not located on Gulf property. The Court noted that the residents of these non-Gulf neighborhoods were freely allowed to use the company-owned streets and sidewalks to access the town's businesses and facilities.

Facts of the case

The appellant, Marsh, a Jehovah's Witness, stood near the post office one day, and began distributing religious literature. Marsh was warned that she needed a permit to do so, and that none would be issued to her. When she was asked to leave, she refused on the grounds that the company rule could not be constitutionally applied to her. The deputy sheriff arrested her and she was charged with the Alabama criminal code's trespassing equivalent.

During her trial, Marsh contended that the statute could not be constitutionally applied to her, as it would necessarily violate her rights under the First and Fourteenth amendments. This contention was rejected and Marsh was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute as applied was constitutional because the title to the sidewalk was in the corporation's name and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. The Alabama Supreme Court denied certiorari, and Marsh appealed her case directly to the United States Supreme Court.

The court's decision

In a 5-3 decision, the court ruled in favor of Marsh. The opinion, joined by three justices, was authored by Justice Hugo Black, with Justice Felix Frankfurter authoring a concurrence, and Justice Stanley Forman Reed authoring a dissent.

The Court initially noted that this would be an easy case if the town were a more traditional, publicly administered, municipality. In such a case it would be a clear violation of the right to free speech for the government to bar the sidewalk distribution of such material. The question became, therefore, whether or not constitutional freedom of speech protections could be denied simply because a single company held title to the town.

The State attempted to analogize the town's rights to the rights of homeowners to regulate the conduct of guests in their home. The Court rejected that contention, noting that ownership "does not always mean absolute dominion." The court pointed out that the more an owner opens his property up to the public in general, the more his rights are circumscribed by the statutory and constitutional rights of those who are invited in.

In its conclusion, the Court stated that it was essentially using a balancing test, weighing the rights of property owners against the rights of citizens to enjoy freedom of press and religion. The Court noted, however, that the latter occupy a preferred position. Accordingly, the Court held that the property rights of a private entity are not sufficient to justify the restriction of a community of citizens' fundamental rights and liberties.

Frankfurter's concurring opinion

Justice Frankfurter concurred in the Court's opinion with one exception. The majority opinion briefly mentioned the Commerce Clause as possibly being analogous to the case's circumstances. In his concurrence, Justice Frankfurter expressed his opinion that it was unnecessary to look to the Commerce Clause for guidance on a First Amendment issue.

Reed's dissenting opinion

Justice Reed introduced his dissent by noting that the Constitutional protections for religion, speech, and press are not absolute or unlimited in respect to the manner or place of their exercise. Furthermore, Reed asserted that property rights, which are also protected by the Constitution, "are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech."

Subsequent history

While the Marsh holding at first appears somewhat narrow and inapplicable to the present day due to the disappearance of company towns from the United States, it was raised in the somewhat high-profile 1996 cyberlaw case, Cyber Promotions v. America Online, 948 F. Supp. 436, 442 (E.D. Pa. 1996).[1] In that case, Cyber Promotions wished to send out "mass email advertisements" to AOL customers. AOL installed software to block those emails. Cyber Promotions sued on free speech grounds, and cited the Marsh case as authority for the proposition that, even though AOL's servers were private property, AOL had opened them to the public to a degree sufficient that constitutional free speech protections could be applied. The federal district court disagreed, thereby paving the way for spam filters at the ISP level.

In Lloyd Corp. v. Tanner, the Supreme Court distinguished a private shopping mall from the company town in Marsh and held that the mall had not been sufficiently dedicated to public use for First Amendment free speech rights to apply within it.

See also


Wikisource has original text related to this article:
  1. Link to Cyber Promotions opinion (.pdf download)
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