Hudgens v. National Labor Relations Board , 96 S. Ct. 1029 ( 1976 )

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins, dissenting.

The Court today holds that the First Amendment poses no bar to a shopping center owner’s prohibiting speech within his shopping center. After deciding this far-reaching constitutional question, and overruling Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), in the process, the Court proceeds to remand for consideration of the statutory question whether the shopping center owner in this case unlawfully interfered with the Butler Shoe Co. employees’ rights under § 7 of the National Labor Relations Act, 29 U. S. C. § 157.

In explaining why it addresses any constitutional issue at all, the Court observes simply that the history of the litigation has been one of “shifting positions on the part of the litigants, the Board, and the Court of Appeals,” ante, at 512, as to whether relief was being sought, or granted, under the First Amendment, under § 7 of the Act, or under some combination of the two. On my reading, the Court of Appeals’ decision and, even more clearly, the Board’s decision here for review, were based solely on § 7, not on the First Amendment; and this Court ought initially consider the statutory question without reference to the First Amendment — the question on which the Court remands. But even under the Court’s reading of the opinions of the Board and the Court of Appeals, the statutory question on which it remands is now before the Court. By bypassing that question and reaching out to overrule a constitutionally based decision, the Court surely departs from traditional modes of adjudication.

I would affirm the judgment of the Court of Appeals on purely statutory grounds. And on the merits of the only question that the Court decides, I dissent from the overruling of Logan Valley.

I

The Court views the history of this litigation as one of “shifting positions” and “considerable confusion.” To be sure, the Board’s position has not been constant. But the ultimate decisions by the Administrative Law Judge and by the Board rested solely on § 7 of the NLRA, not on the First Amendment.

As the Court indicates, the Board’s initial determination that petitioner violated §8 (a)(1) of the Act, 29 U. S. C. § 158 (a)(1), was based on its reading of Logan Valley, a First Amendment case. But before the Court of Appeals reviewed this initial determination, this Court decided Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), and Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), and the Board moved to have the case remanded for reconsideration in light of these two decisions. The Court of Appeals granted the motion.

Lloyd and Central Hardware demonstrated, each in its own way, that Logan Valley could not be read as broadly as some Courts of Appeals had read it. And together they gave a signal to the Board and to the Court of Appeals that it would be wise to pass upon statutory contentions in cases of this sort before turning to broad constitutional questions, the answers to which could no longer be predicted with certainty. See Central Hardware, supra, at 548, 549 (Maeshall, J., dissenting); Lloyd, supra, at 584 (Marshall, J., dissenting). Taking heed of this signal, the Administrative Law Judge and the Board proceeded on remand to assess the conflicting rights of the employees and the shopping center owner within the framework of the NLRA. The Administrative Law Judge’s recommendation that petitioner be found guilty of a § 8 (a)(1) violation rested explicitly on the statutory test enunciated by this Court in NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956). That the Administrative Law Judge supported his “realistic view of the facts” by referring to this Court’s “factual view” of the Logan Valley case surely cannot be said to alter the judge’s explicitly stated legal theory, which was a statutory one.

Even more clearly, the Board’s rationale in agreeing with the Administrative Law Judge’s recommendation was exclusively a statutory one. Nowhere in the Board’s decision, Hudgens v. Local SIS, Retail, Wholesale & Dept. Store Union, 205 N. L. R. B. 628 (1973), is there any reference to the First Amendment or any' constitutionally based decision. The Board reached its result “for the reasons specifically set forth in Frank Vis-ceglia and Vincent Visceglia, t/a Peddie Buildings,”¹ ibid., a case decided solely on § 7 grounds. In Visceglia the Board had specifically declined to treat the picketing area in question as the functional equivalent of a business block and rejected the applicability of Logan Valley’s First Amendment analysis, finding an interference with § 7 rights under a “modified” Babcock & Wilcox test.² When the Board in this case relied upon the rationale of Visceglia, it was evidently proceeding under the assumption that the First Amendment had no application. Its ultimate conclusion that petitioner violated §8 (a)(1) of the Act was purely the result of an “accommodation between [his] property rights and the employees’ Section 7 rights.” 205 N. L. R. B. 628.

The Court acknowledges that the Court of Appeals’ enforcement of the Board’s order was based on its view of the employees’ § 7 rights. But the Court suggests that the following reference to Lloyd, a constitutional case, indicates that the Court of Appeals’ decision was infected with constitutional considerations:

“Lloyd burdens the General Counsel with the duty to prove that other locations less intrusive upon Hudgens’ property rights than picketing inside the mall were either unavailable or ineffective.” 501 F. 2d 161, 169.

A reading of the entire Court of Appeals’ opinion, however, demonstrates that this language was not intended to inject any constitutional considerations into the case. The Court of Appeals’ analysis began with an evaluation of the statutory criteria urged by the parties.³ Rejecting both parties’ formulations of the appropriate statutory standard, the Court of Appeals adopted a modified version of an approach, suggested by an amicus, that incorporates a consideration of the relationship of the protest to the use to which the private property in question is put, and the availability of reasonably effective alternative means of communicating with the intended audience. While the amicus had derived its approach from Lloyd and Logan Valley, two constitutional cases, the Court of Appeals was careful to note that the approach it applied was a statutory, not a constitutional one:

“Section 7 rights are . not necessarily coextensive with constitutional rights, see Central Hardware v. NLRB, supra ([Marshall], J., dissenting). Nevertheless, we agree that the rule suggested by amicus, although having its genesis in the constitutional issues raised in Lloyd, isolates the factors relevant to determining when private property rights of a shopping center owner should be required to yield to the section 7 rights of labor picketers.” 501 F. 2d, at 167.

With that explanation of the Court of Appeals’ view of the relevance of Lloyd, it is evident that the subsequent reference to Lloyd, quoted out of context by the Court, was not intended to alter the purely statutory basis of the Court of Appeals’ decision.⁴

In short, the Board’s decision was clearly unaffected by constitutional considerations, and I do not read the Court of Appeals’ opinion as intimating that its statutory result was constitutionally mandated. In its present posture, the case presents no constitutional question to the Court. Surely it is of no moment that the Board through its counsel now urges this Court to decide, as part of its statutory analysis, what result is compelled by the First Amendment. The posture of the case is determined by the decisions of the Board and the Court of Appeals, not by the arguments advanced in the Board’s brief. Since I read those decisions as purely statutory ones, I would proceed to consider the purely statutory question whether, assuming that petitioner is not restricted by the First Amendment, his actions nevertheless violated § 7 of the Act. This is precisely the issue on which the Court remands the case.

At the very least it is clear that neither the Board nor the Court of Appeals decided the case solely on First Amendment grounds. The Court itself acknowledges that both decisions were based on § 7. The most that can be said, and all that the Court suggests, is that the Court of Appeals’ view of § 7 was colored by the First Amendment. But even if that were the case, this Court ought not decide any First Amendment question — particularly in a way that requires overruling one of our decisions — without first considering the statutory question without reference to the First Amendment. It is a well-established principle that constitutional questions should not be decided unnecessarily. See, e. g., Hagans v. Lavine, 415 U. S. 528, 543, 549 (1974); Rosenberg v. Fleuti, 374 U. S. 449 (1963); Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring). If the Court of Appeals disregarded that principle, that is no excuse for this Court’s doing so.

As already indicated, the Board, through its counsel, urges the Court to apply First Amendment considerations in defining the scope of § 7 of the Act. The Board takes this position because it is concerned that the scope of § 7 not fall short of the scope of the First Amendment, the result of which would be that picketing employees could obtain greater protection by court suits than by invoking the procedures of the NLRA. While that general concern is a legitimate one, it does not justify the constitutional adjudication undertaken by the Court. If it were undisputed that the pickets in this case enjoyed some degree of First Amendment protection against interference by petitioner, it might be difficult to separate a consideration of the scope of that First Amendment protection from an analysis of the scope of protection afforded by § 7. But the constitutional question that the Court decides today is whether the First Amendment operates to restrict petitioner’s actions in any way at all, and that question is clearly severable, at least initially, from a consideration of § 7’s scope — as proved by the Court’s remand of the case.

Thus even if, as the Court suggests, the Court of Appeals’ view of § 7 was affected by the First Amendment, the Court still could have proceeded initially to decide the statutory question divorced of constitutional considerations. I cannot understand the Court’s bypassing that purely statutory question to overrule a First Amendment decision less than 10 years old. And I certainly cannot understand the Court’s remand of the purely statutory question to the Board, whose decision was so clearly unaffected by any constitutional considerations that the Court does not even suggest otherwise.

II

On the merits of the purely statutory question that I believe is presented to the Court, I would affirm the judgment of the Court of Appeals. To do so, one need not consider whether consumer picketing by employees is subject to a more permissive test under § 7 than the test articulated in Babcock & Wilcox for organizational activity by nonemployees. In Babcock & Wilcox we stated that an employer “must allow the union to approach his employees on his property” ⁵ if the employees are “beyond the reach of reasonable efforts to communicate with them,” 351 U. S., at 113 — that is, if “other means” of communication are not “readily available.” Id., at 114. Thus the general standard that emerges from Babcock & Wilcox is the ready availability of reasonably effective alternative means of communication with the intended audience.

In Babcock & Wilcox itself, the intended audience was the employees of a particular employer, a limited identifiable group; and it was thought that such an audience could be reached effectively by means other than entrance onto the employer’s property — for example, personal contact at the employees’ living quarters, which were “in reasonable reach.” Id., at 113. In this case, of course, the intended audience was different, and what constitutes reasonably effective alternative means of communication also differs. As the Court of Appeals noted, the intended audience in this case “was only identifiable as part of the citizenry of greater Atlanta until it approached the store, and thus for the picketing to be effective, the location chosen was crucial unless the audience could be known and reached by other means.” 501 F. 2d, at 168. Petitioner contends that the employees could have utilized the newspapers, radio, television, direct mail, handbills, and billboards to reach the citizenry of Atlanta. But none of those means is likely to be as effective as on-location picketing: the initial impact of communication by those means would likely be less dramatic, and the potential for dilution of impact significantly greater. As this Court has observed:

“Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word.” Hughes v. Superior Court, 339 U. S. 460, 465 (1950).

In addition, all of the alternatives suggested by petitioner are considerably more expensive than on-site picketing. Certainly Babcock & Wilcox did not require resort to the mass media,⁶ or to more individualized efforts on a scale comparable to that which would be required to reach the intended audience in this case.

Petitioner also contends that the employees could have picketed on the public rights-of-way, where vehicles entered the shopping center. Quite apart from considerations of safety, that alternative was clearly inadequate: prospective customers would have had to read the picketers’ placards while driving by in their vehicles — a difficult task indeed. Moreover, as both the Board and the Court of Appeals recognized, picketing at an entrance used by customers of all retail establishments in the shopping center, rather than simply customers of the Butler Shoe Co. store, may well have invited undesirable secondary effects.

In short, I believe the Court of Appeals was clearly correct in concluding that “alternatives to picketing inside the mall were either unavailable or inadequate.” 501 F. 2d, at 169. Under Babcock & Wilcox, then, the picketing in this case was protected by § 7. I would affirm the judgment of the Court of Appeals on that basis.

Ill

Turning to the constitutional issue resolved by the Court, I cannot escape the feeling that Logan Valley has been laid to rest without ever having been accorded a proper burial. The Court today announces that “the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley.” Ante, at 518. To be sure, some Members of the Court, myself included, believed that Logan Valley called for a different result in Lloyd and alluded in dissent to the possibility that “it is Logan Valley itself that the Court finds bothersome.” 407 U. S., at 570, 584 (Marshall, J., dissenting). But the fact remains that Logan Valley explicitly reserved the question later decided in Lloyd, and Lloyd carefully preserved the holding of Logan Valley. And upon reflection, I am of the view that the two decisions are reconcilable.

A

In Logan Valley the Court was faced with union picketing against a nonunion supermarket located in a large shopping center. Our holding was a limited one:

“All we decide here is that because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U. S., at 508, the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 391 U. S., at 319-320 (footnote omitted).

We carefully noted that we were “not called upon to consider whether respondents’ property rights could, consistently with the First Amendment, justify a bar on picketing which was not . . . directly related in its purpose to the use to which the shopping center property was being put.” Id., at 320 n. 9.

Lloyd involved the distribution of antiwar handbills in a large shopping center, and while some of us viewed the case differently, 407 U. S., at 570, 577-579 (Marshall, J., dissenting), the Court treated it as presenting the question left open in Logan Valley. But the Court did no more than decide that question. It preserved the holding of Logan Valley, as limited to cases in which (1) the picketing is directly related in its purpose to the use to which the shopping center property is put, and (2) “no other reasonable opportunities for the pickets to convey their message to their intended audience [are] available.” 407 U. S., at 563.

The Court today gives short shrift to the language in Lloyd preserving Logan Valley, and quotes extensively from language that admittedly differs in emphasis from much of the language of Logan Valley. But even the language quoted by the Court says no more than that the dedication of the Lloyd Center to public use was more limited than the dedication of the company town in Marsh v. Alabama, 326 U. S. 501 (1946), and that the pickets in Lloyd were not entitled to exercise. “the asserted First Amendment rights” — that is, the right to distribute antiwar handbills.

Any doubt about the limited scope of Lloyd is removed completely by a consideration of Central Hardware Co. v. NLRB, 407 U. S. 539 (1972), decided the same day as Lloyd. In Central Hardware the Court was faced with solicitation by nonemployee union organizers on a parking lot of a retail store that was not part of a shopping center complex — activity clearly related to the use to which the private property had been put. The Court found the activity unprotected by the First Amendment, but in a way that explicitly preserved the holding in Logan Valley. The Court could have held that the First Amendment has no application to use-related activity on privately owned business property, thereby rejecting Logan Valley, but instead the Court chose to distinguish the parking lot in Central Hardware from the shopping center complex in Logan Valley. Rejecting the argument that the opening of property to the general public suffices to activate the prohibition of the First Amendment, the Court explained:

“This analysis misconceives the rationale of Logan Valley. Logan Valley involved a large commercial shopping center which the Court found had displaced, in certain relevant respects, the functions of the normal municipal ‘business block.' First and Fourteenth Amendment free-speech rights were deemed infringed under the facts of that case when the property owner invoked the trespass laws of the State against the pickets.

“Before an owner of private property can be subjected to the commands of the First and Fourteenth Amendments the privately owned property must assume to some significant degree the functional attributes of public property devoted to public use. . . . The only fact relied upon for the argument that Central’s parking lots have acquired the characteristics of a public municipal facility is that they are ‘open to the public.’ Such an argument could be made with respect to almost every retail and service establishment in the country, regardless of size or location. To accept it would cut Logan Valley entirely away from its roots in Marsh.” 407 U. S., at 547 (footnote omitted).

If, as the Court tells us, “the rationale of Logan Valley .did not survive the Court’s decision in the Lloyd case,” ante, at 518, one wonders why the Court in Central Hardware, decided the same day as Lloyd, implicitly reaffirmed Logan Valley’s rationale.

B

It is inescapable that after Lloyd, Logan Valley remained “good law,” binding on the state and federal courts. Our institutional duty in this case, if we consider the constitutional question at all, is to examine whether Lloyd and Logan Valley can continue to stand side by side, and, if they cannot, to decide which one must fall. I continue to believe that the First Amendment principles underlying Logan Valley are sound, and were unduly limited in Lloyd. But accepting Lloyd, I am not convinced that Logan Valley must be overruled.

The foundation of Logan Valley consisted of this Court’s decisions recognizing a right of access to streets, sidewalks, parks, and other public places historically associated with the exercise of First Amendment rights. E. g., Hague v. CIO, 307 U. S. 496, 515-516 (1939) (opinion of Roberts, J.); Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U. S. 296, 308 (1940); Cox v. New Hampshire, 312 U. S. 569, 574 (1941); Jamison v. Texas, 318 U. S. 413 (1943); Saia v. New York, 334 U. S. 558 (1948). Thus, the Court in Logan Valley observed that access to such forums “cannot constitutionally be denied broadly and absolutely.” 391 U. S., at 315. The importance of access to such places for speech-related purposes is clear, for they are often the only places for effective speech and assembly.

Marsh v. Alabama, supra, which the Court purports to leave untouched, made clear that in applying those cases granting a right of access to streets, sidewalks, and other public places, courts ought not let the formalities of title put an end to analysis. The Court in Marsh observed that “the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.” 326 U. S., at 503. That distinction was not determinative:

“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Id., at 506.

Regardless of who owned or possessed the town in Marsh, the Court noted, “the public . . . has an identical interest in the functioning of the community in such manner that the channels of communication remain free,” id., at 507, and that interest was held to prevail.

The Court adopts the view that Marsh has no bearing on this case because the privately owned property in Marsh involved all the characteristics of a typical town. But there is nothing in Marsh to suggest that its general approach was limited to the particular facts of that case. The underlying concern in Marsh was that traditional public channels of communication remain free, regardless of the incidence of ownership. Given that concern, the crucial fact in Marsh was that the company owned the traditional forums essential for effective communication; it was immaterial that the company also owned a sewer system and that its property in other respects resembled a town.

In Logan Valley we recognized what the Court today refuses to recognize — that the owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces ■the “State” from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping center may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town.⁷ I simply cannot reconcile the Court’s denial of any role for the First Amendment in the shopping center with Marsh’s recognition of a full role for the First Amendment on the streets and sidewalks of the company-owned town.

My reading of Marsh admittedly carried me farther than the Court in Lloyd, but the Lloyd Court remained responsive in its own way to the concerns underlying Marsh. Lloyd retained the availability of First Amendment protection when the picketing is related to the function of the shopping center, and when there is no other reasonable opportunity to convey the message to the intended audience. Preserving Logan Valley subject to Lloyd’s two related criteria guaranteed that the First Amendment would have application in those situations in which the shopping center owner had most clearly monopolized the forums essential for effective communication. This result, although not the optimal one in my view, Lloyd Corp. v. Tanner, 407 U. S., at 579-583 (Marshall, J., dissenting), is nonetheless defensible.

In Marsh, the private entity had displaced the “state” from control of all the places to which the public had historically enjoyed access for First Amendment purposes, and the First Amendment was accordingly held fully applicable to the private entity’s conduct. The shopping center owner, on the other hand, controls only a portion of such places, leaving other traditional public forums available to the citizen. But the shopping center owner may nevertheless control all places essential for the effective undertaking of some speech-related activities — namely, those related to the activities of the shopping center. As for those activities, then, the First Amendment ought to have application under the reasoning of Marsh, and that was precisely the state of the law after Lloyd.

The Court’s only apparent objection to this analysis is that it makes the applicability of the First Amendment turn to some degree on the subject matter of the speech. But that in itself is no objection, and the cases cited by the Court to the effect that government may not “restrict expression because of its message, its ideas, its subject matter, or its content,” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972), are simply inapposite. In those cases, it was clearly the government that was acting, and the First Amendment’s bar against infringing speech was unquestionably applicable; the Court simply held that the government, faced with a general command to permit speech, cannot choose to forbid some speech because of its message. The shopping center cases are quite different; in these cases the primary regulator is a private entity whose property has “assume[d] to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB, 407 U. S., at 547. The very question in these cases is whether, and under what circumstances, the First Amendment has any application at all. The answer to that question, under the •view of Marsh described above, depends to some extent on the subject of the speech the private entity seeks to regulate, because the degree to which the private entity monopolizes the effective channels of communication may depend upon what subject is involved.⁸ This limited reference to the subject matter of the speech poses none of the dangers of government suppression or censorship that lay at the heart of the cases cited by the Court. See, e. g., Police Dept. of Chicago v. Mosley, supra, at 95-96. It is indeed ironic that those cases, whose obvious concern was the promotion of free speech, are cited today to require its surrender.

In the final analysis, the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems, I believe, from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment’s guarantee of freedom of speech. No one would seriously question the legitimacy of the values of privacy and individual autonomy traditionally associated with privately owned property. But property that is privately owned is not always held for private use, and when a property owner opens his property to public use the force of those values diminishes. A degree of privacy is necessarily surrendered; thus, the privacy interest that petitioner retains when he leases space to 60 retail businesses and invites the public onto his land for the transaction of business with other members of the public is small indeed. Cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 65-67 (1973). And while the owner of property open to public use may not automatically surrender any of his autonomy interest in managing the property as he sees fit, there is nothing new about the notion that that autonomy interest must be accommodated with the interests of the public. As this Court noted some time ago, albeit in another context:

“Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U. S. 113, 126 (1877).

The interest of members of the public in communicating with one another on subjects relating to the businesses that occupy a modern shopping center is substantial. Not only employees with a labor dispute, but also consumers with complaints against business establishments, may look to the location of a retail store as the only reasonable avenue for effective communication with the public. As far as these groups are concerned, the shopping center owner has assumed the traditional role of the state in its control of historical First Amendment forums. Lloyd and Logan Valley recognized the vital role the First Amendment has to play in such cases, and I believe that this Court errs when it holds otherwise.

1 203 N. L. R. B. 265 (1973), enforcement denied, NLRB v. Visceglia, 498 F. 2d 43 (CA3 1974).

2 The Board found the “principles of Babcock & Wilcox ... to be applicable,” 203 N. L. R. B., at 266-267, but seized upon a factual distinction that the Babcock & Wilcox Court had itself suggested — namely, the distinction between activity by employees, as in Visceglia, and activity by nonemployees, as in Babcock & Wilcox.

3 The Board’s General Counsel urged a rule, based upon Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945), that the employee pickets could not be excluded from the shopping center unless it could be shown that the picketing interfered with the center^ normal functioning. While the Board’s General Counsel thus did not rely on Babcock & Wilcox, the basis for the Board’s decision, he still relied on a statutory case, not a constitutional one.

Petitioner argued in the Court of Appeals that under Babcock & Wilcox the picketing could be prohibited unless it could be shown that there were no other available channels of communication with the intended audience.

4 Indeed, the Court of Appeals quite clearly viewed the Administrative Law Judge’s recommendation and the Board’s decision as statutorily based. And the court did not even make the factual finding of functional equivalence to a business district that it recognized as a prerequisite to the application of the First Amendment. 501 F. 2d, at 164.

5 It is irrelevant, in my view, that the property in this case was owned by the shopping center owner rather than by the employer. The nature of the property interest is the same in either case.

6 The only alternative means of communication referred to in Babcock & Wilcox were “personal contacts on streets or at home, telephones, letters or advertised meetings to get in touch with the employees.” 351 U. S., at 111.

7 No point would be served by adding to the observations in Logan Valley and my dissent in Lloyd with respect to the growth of suburban shopping centers and the proliferation of activities taking place in such centers. See Logan Valley, 391 U. S., at 324; Lloyd, 407 U. S., at 580, 585-586. See also Note, Lloyd Corp. v. Tanner: The Demise of Logan Valley and the Disguise of Marsh, 61 Geo. L. J. 1187, 1216-1219 (1973).

8 See The Supreme Court, 1967 Term, 82 Harv. L. Rev. 63, 135-138 (1968).