Home » Articles » Case » Picketing » Hudgens v. National Labor Relations Board (1976)

Written by Tom McInnis, last updated on December 1, 2023

Select Dynamic field

Striking union members were told they would be arrested for trespass if they continued to picket in front of their company's mall retail store Butler's Shoes in suburban Atlanta. The case went to the Supreme Court which ruled in Hudgens v. National Labor Relations Board (1976) that privately owned malls could not be considered the equivalent of city sidewalks, and private owners could limit First Amendment activity within. (This 1966 photo of a Butler's Shoes  store was in one of the first indoor malls in Hampton Roads, Va., reprinted here with permission from The Virginian-Pilot. Photographer: Charlie Meads)

In Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976), the Supreme Court ruled that there was no right to exercise free speech in privately owned malls under the First Amendment.


Striking union sued to picket in front of mall


Members of a striking union had picketed in front of their employer Butler Shoe Co.’s  retail store inside a mall owned by Scott Hudgens. They were told by the mall manager that if they continued to picket they would be arrested for trespass. The National Labor Relations Board (NLRB) determined that the National Labor Relations Act of 1935 had been violated and brought suit to require Hudgens to allow the picketing to continue.


Court originally said picketing private malls was protected by the First Amendment


Writing the 6-2 majority opinion, Justice Potter Stewart first stated unequivocally that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state, not private persons or corporations. He then stated that despite this truism, the record demonstrated exceptions.


The first exception to the rule was in Marsh v. Alabama (1946), when the Court ruled that the sidewalks of a privately owned company town were the equivalent of those in a public community. Marsh influenced Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza (1968), in which the Court ruled that picketing in a privately owned shopping mall was protected First Amendment activity since the walkways of a mall were the functional equivalent of a city sidewalk.


Ruling was later reversed, favoring private owners


Four years later the Court reconsidered the Logan Valley doctrine in Lloyd Corporation, Ltd. v. Tanner (1972) and, without explicitly overruling it, rejected its reasoning that privately owned malls were the equivalent of city sidewalks. Justice Stewart then made it clear that Logan Valley was no longer the ruling precedent and privately owned malls would no longer be considered to be equivalent to city sidewalks. As a result, First Amendment activity in privately owned malls could be limited by the owners of the property.


This article was originally published in 2009. Tom McInnis earned a Ph.D. from the University of Missouri in Political Science in 1989.  He taught and researched at the University of Central Arkansas for 30 years before retirement.  He published two books and multiple articles in the area of civil liberties and the American legal system.


How To Contribute

The Free Speech Center operates with your generosity! Please donate now!