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
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
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.