Marsh v. Alabama
326 U.S. 501 (1946)

  • Marsh was on a sidewalk in the town of Chickasaw Alabama, which was located completely on private land. She tried to distribute some religious literature, and was told that she was not allowed to do that without permission of the company that owned the land (Gulf Shipbuilding Corp.).
    • Although the land was on private property, the company generally allowed anyone access to the streets and businesses. It did not outwardly appear to be private property.
  • Marsh refused to leave and was arrested for trespassing.
    • Marsh argued that it was a violation of her 1st Amendment right to freedom of speech.
    • The prosecutor argued that Constitutional guarantees did not apply because the sidewalk Marsh was standing on was private property.
  • The Trial Court convicted Marsh of trespassing. She appealed.
  • The Appellate Court affirmed the conviction. Marsh appealed.
  • The US Supreme Court overturned the conviction.
    • The US Supreme Court found that Constitutional protections of free speech still apply within the confines of a town owned by a private entity.
    • The Court noted that if Chickasaw was a public town on public land, then it would be a clear violation of the right to free speech for the government to bar the sidewalk distribution of religious material.
    • The Court found that the company was performing a function that has been traditionally, exclusively, done by the government, and was therefore bound to the Constitution via the Public Functions Exception.
      • The Court found that 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.
  • Basically, this case said that a private entity is not required to, in general, meet all of the provisions of the Bill of Rights (aka the State Action Doctrine). However, when that entity is performing something that is generally considered to be a government function, then they must meet the standards of the Constitution (aka the Public Function Exception).
  • In this case, there are three parties whose rights need to be protected. There are people who want to speak, like Marsh, there are people who own the land, like Gulf, and there are also the people who want/need to hear, like the citizens of the town.
    • This case was determined not on Marsh’s right to speak, but more on the idea that the people of the town had a right to be informed and to receive information.