Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 12 of 27 1 as a forum dedicated to allowing its users to express diverse points of view, Defendants should be 2 treated as state actors “subject to judicial scrutiny under the First Amendment.” Opp. at 18. For 3 example, the United States Supreme Court stated in Marsh that “[t]he more an owner, for his 4 advantage, opens up his property for use by the public in general, the more do his rights become 5 circumscribed by the statutory and constitutional rights of those who use it.” 326 U.S. at 506. United States District Court Northern District of California 6 However, subsequent United States Supreme Court decisions confirm that Marsh cannot 7 be extended to support Plaintiff’s position despite Marsh’s broad language. Specifically, as 8 discussed below, although the Supreme Court initially appeared to expand the reach of Marsh 9 beyond the context of a company town in Amalgamated Food Employees Union Local 590 v. 10 Logan Valley Plaza, Inc., 391 U.S. 308 (1968), the Supreme Court quickly disavowed that 11 expansion in two subsequent decisions. In Logan Valley, the Supreme Court held that a privately 12 owned shopping center could not prohibit striking workers from picketing a store within the 13 shopping center because that prohibition violated the First Amendment rights of the picketing 14 workers. Id. at 325. In reaching this holding, the Supreme Court emphasized that the shopping 15 center was “open to the public to the same extent as the commercial center of a normal town” and 16 analogized the case to Marsh. Id. at 319. Specifically, the Supreme Court observed that the 17 shopping center was “clearly the functional equivalent of the business district of [the company 18 town] involved in Marsh.” Id. at 318. Further, the Supreme Court rejected the shopping center’s 19 argument that it was not a state actor because it was privately owned by “simply repeat[ing]” the 20 broad language in Marsh discussed above: “‘The more an owner, for his advantage, opens up his 21 property for use by the public in general, the more do his rights before circumscribed by the 22 statutory and constitutional rights of those who use it.’” 391 U.S. at 325 (quoting Marsh, 326 U.S. 23 at 506). 24 Justice Black—who wrote the majority opinion in Marsh—authored a vigorous dissent in 25 Logan Valley asserting that the majority opinion had “completely misread[]” Marsh. Id. at 332 26 (Black, J., dissenting). In particular, Justice Black argued that “[t]he question is, Under what 27 28 12 Case No. 17-CV-06064-LHK ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FEDERAL CAUSES OF ACTION; DISMISSING PLAINTIFF��S STATE LAW CAUSES OF ACTION; AND DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION