Hudgens v. National Labor Relations Board
424 U.S. 507 (1976)

  • Hudgens owned a shopping mall. Some union members were protesting a shoe store in the mall. Hudgens kicked them out.
  • The NLRB sued Hudgens claiming that he had infringed on the union’s 1st Amendment rights.
    • Hudgens argued that the Bill of Rights only applies to governmental actions, and this was private property (aka the State Action Doctrine).
    • NLRB looked to Amalgamated Employees Union Local 590 v. Logan Valley Plaza, Inc. (391 U.S. 308 (1968)) and argued that that when a private entity is open to the public, or performing a governmental function, they are bound by the Public Function Exception.
  • The US Supreme Court found for Hudgens and reversed their decision in Logan Valley.
    • The US Supreme Court looked to Lloyd v. Tanner (407 U.S. 551 (1972)), where they said that people couldn’t distribute flyers unrelated to a store in a mall.
    • The Court extended the logic in Lloyd to cover all free expression on property owned by private businesses.
      • Otherwise, the rule would be a content-based distinction (related to store business vs. unrelated to store business), and content-based distinctions are held to strict scrutiny and are almost never allowed.
  • Basically, this case said that just because a business is open to the public, it doesn’t necessarily meet the Public Function Exception.
    • In order to meet the Public Function Exception, the business has to be actually doing a job normally done by the government.
      • See Marsh v. Alabama (326 U.S. 501 (1946)).