Donald M. Tanner, Betsy Wheeler, and Susan Roberts v. Lloyd Corporation, Ltd.

The appellant and its lessees operate a huge private shopping facility, embracing about fifty acres in the City of Portland, Oregon. The District Court enjoined the appellant from interfering with the appellees’ exercise, on the facility premises, of certain peaceful activities which the court found were protected under the guarantees of the First Amendment. The court’s legal conclusion followed from its factual determination that the appellant’s facility was, in scope, “the functional equivalent of a public business district.” Tanner v. Lloyd Corp., Ltd., 308 F.Supp. 128, 130 (D.Ore.1970); cf. Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir.), cert. denied, 393 U.S. 940 , 89 S.Ct. 290 , 21 L.Ed.2d 275 (1968). See also Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 , 88 S.Ct. 1601 , 20 L.Ed.2d 603 (1968); Marsh v. Alabama, 326 U.S. 501 , 66 S.Ct. 276 , 90 L.Ed. 265 (1946). Since such a factual determination, in relation to a particular case, must necessarily rest upon a consideration of all of the demonstrated circumstances of that case, we have concluded that we are powerless to hold that the critical factual determination which is…