Marsh v. Alabama

The town of Chickasaw, Alabama, was predominantly a Gulf Shipbuilding Corporation company town near Mobile, Alabama, that was owned and operated by the Gulf Shipbuilding Corporation ("Gulf"). 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.

The appellant, Grace Marsh, a Jehovah's Witness, stood near the post office one day, where she 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 rules against distribution of such materials 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. It held that 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. After the Alabama Supreme Court denied certiorari, and Marsh appealed her case to the United States Supreme Court.

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 writing a concurrence, and Justice Stanley Forman Reed writing a dissent.

The Court initially noted that it would be an easy case if the town were a more traditional, publicly administered, municipality. Then, there 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 weighing the rights of property owners against the rights of citizens to enjoy freedom of press and religion. The Court noted that the rights of citizens under the Bill of Rights 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.

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] 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 Internet service provider level.

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

Recently the case has been highlighted as a potential precedent to treat online communication media like Facebook as a public space to prevent it from censoring speech.[2][3] However, in Manhattan Community Access Corp. v. Halleck the Supreme Court found that private companies only count as state actors for first amendment purposes if they exercise “powers traditionally exclusive to the state."

• List of United States Supreme Court cases involving the First Amendment
• List of United States Supreme Court cases, volume 326

• Works related to Marsh v. Alabama at Wikisource
• Text of Marsh v. Alabama, 326 U.S. 501 (1946) is available from:  Justia  Library of Congress