1. Marsh v. Alabama, (1946)
2. Facts: Marsh, a jehovah’s witness, was convicted of trespassing when she passed out religious fliers in the company-owned town of Chicksaw against the corporate owner’s permission.
3. Procedural Posture: Marsh challenged the conviction under the 1st amendment right to free speech, and the corporation defended on the ground that the owner of private property has a privacy interest in excluding persons and behavior that he does not desire.
4. Issue: Whether the conviction violates the 1st amendment, even though the town is privately owned.
5. Holding: Yes.
6. Reasoning: The company town was only different from other towns in that the title was privately owned. The owner, for his own advantage, had opened up his property for use by the public in general, and thus his rights are limited by the constitutional rights of those who use the property. Since these facilities are built and operated primarily to benefit the public, and since their operation is “essentially a public function,” it is subject to state regulation. Here the activity was sufficiently state-like to balance the interests of the owner against the constitutional rights of the user.
7. Notes: Marsh was eventually limited to its facts because of the difficulty in maintaining the argument that a private property owner was serving a sufficiently public function. However, it served as an alternate grounds for the decision in Evans v. Newton, in which a privately owned park was forbidden to exercise racial discrimination since the “service rendered by a private park of this character is municipal in nature.” In Jackson v. Metro Edison, the Court refused to extend the public function doctrine to the actions of a privately owned utility licensed and regulated by a state public utilities commission. Rehnquist noted that there was no state action present, even though the utility was state regulated, because utility provision was not a function traditionally exclusively reserved to the state. Also, the Court rejected a state action attack in Flagg Bros., Inc. v. Brooks, holding that a warehouseman’s proposed sale of goods entrusted to him for storage to satisfy a warehouseman’s lien under the UCC did not constitute state action.
1. Shelley v. Kraemer, (1948); pg. 899, briefed 4/6/96
2. Facts: A 1911 covenant signed by the private property owners in a residential neighborhood to exclude blacks and asians for 50 years. Petitioners are blacks who purchased houses from white owners despite the racial covenant.
3. Procedural Posture: The respondents brought a successful state action to enforce the covenant.
4. Issue: Whether private property covenants that would violate the 14th amendment if enacted as law are nevertheless void under the 14th amendment if enacted by private persons and enforced by the state.
5. Holding: Yes.
6. Reasoning: Although the covenants would not be violative of equal protection if they were solely private in nature, here there is more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. State action refers to all exertions of state power.
7. Notes: In Barrows v. Jackson, the Court used Shelley to block enforcement of a restrictive racial covenant by instituting a suit for damages [rather than absolute exclusion as was the case in Shelley]. However, in Evans v. Abney, the Court refused to extend Shelley to cover the case where a park had been willed in trust to the city for operation as “whites only.” The court rested its decision on the fact that the trust was void for inability to give effect to the donor’s intent, and thus the property reverted to the donor’s heirs. However, in Pennsylvania v. Board of Trusts, the Court held that a board of trustees made up of government officials could not constitutionally exclude blacks from a college that was donated in trust under the condition that it be white only, and that substituting private trustees for the government officials was no more constitutional. In Bell v. Maryland, the court split 3-3 on whether Shelley should apply to prevent enforcement of trespassing laws to prosecute black sit-in protestors when the private owner of the restaurant personally discriminated against black patrons.
