United States District Court Northern District of California Case 5:17-cv-06064-LHK Document 54 Filed 03/26/18 Page 14 of 27 1 the privately owned shopping center that was open to the public in Lloyd involved “no comparable 2 assumption or exercise of municipal functions or power.” Id. 3 Second, although the United States Supreme Court did not explicitly overrule Logan 4 Valley in Lloyd, it did so four years after Lloyd in Hudgens v. N.L.R.B., 424 U.S. 507 (1976). 5 Once again, like in Logan Valley, the Supreme Court was tasked with addressing whether a 6 privately owned shopping center that had prohibited labor union members from picketing in the 7 shopping center was a state actor that was required to comply with the First Amendment. See id. 8 at 508. Ultimately, the Supreme Court concluded that the privately owned shopping center was 9 not a state actor, and thus the picketers “did not have a First Amendment right to enter th[e] 10 shopping center for the purpose of advertising their strike.” Id. at 520–21. In reaching this 11 holding, the Hudgens Court explained that “the rationale of Logan Valley did not survive the 12 Court’s decision in the Lloyd case” and that “the ultimate holding in Lloyd amounted to a total 13 rejection of the holding in Logan Valley.” Hudgens, 424 U.S. at 518. Further, like in Lloyd, 14 Hudgens quoted at length from Justice Black’s Logan Valley dissent. Id. at 516–17. As the 15 Supreme Court would observe two years later in Flagg Brothers, Hudgens “adopted Mr. Justice 16 Black’s interpretation of the limited reach of Marsh” expressed in his Logan Valley dissent. Flagg 17 Bros., 436 U.S. at 159. 18 In short, Logan Valley, Lloyd, Hudgens, and Flagg Brothers confirm that Marsh’s reach is 19 limited. See also Cable Invs., Inc. v. Woolley, 867 F.2d 151, 162 (3d Cir. 1989) (“Marsh has been 20 construed narrowly.” (citing Flagg Bros, 436 U.S. at 158–59, and Hudgens, 424 U.S. at 513–21)); 21 Faiaz v. Colgate Univ., 64 F. Supp. 3d 336, 353 (N.D.N.Y. 2014) (“The holding in Marsh has 22 been limited to the facts of that case.” (citing Lloyd, 407 U.S. at 561)). In light of the ill-fated (and 23 short-lived) extension of Marsh to privately owned shopping centers held open to the public and 24 the United States Supreme Court’s subsequent adoption of Justice Black’s view that Marsh “was 25 never intended to apply” outside “the very special situation of a company-owned town,” Logan 26 Valley, 391 U.S. at 330 (Black, J., dissenting), this Court is not convinced that Marsh can be 27 28 14 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