Bock v. Westminster Mall Co.

• Decision Date: 07 October 1991
• Docket Number: No. 90SC433,90SC433
• Citation: 819 P.2d 55
• Parties: Nelson BOCK and Patricia Lawless-Avelar, Petitioners, v. WESTMINSTER MALL COMPANY, Respondent.
• Court: Colorado Supreme Court

Page 55

819 P.2d 55

60 USLW 2239

Nelson BOCK and Patricia Lawless-Avelar, Petitioners, v. WESTMINSTER MALL COMPANY, Respondent.

No. 90SC433.

Supreme Court of Colorado En Banc.

Oct. 7, 1991.

Rehearing Denied Nov. 4, 1991.

Tim Atkeson, Arnold & Porter, David H. Miller, American Civil Liberties Union, Denver, for petitioners.

James L. Aab, Denver, Elizabeth Drill Nay, Robert Steven Caldwell, Lewis, Rice & Fingersh, Kansas City, Mo., for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review Bock v. Westminster Mall Co., 797 P.2d 797 (Colo.App.1990), in which the court of appeals held that individual members of "The Pledge of Resistance" did not have a protected right to distribute leaflets in the common areas of Westminster Mall ("Mall"), a privately-owned commercial and retail center. The issue here is:

Whether Article II, Section 10 of the Colorado Constitution prevents the private owner of an enclosed shopping mall from excluding citizens engaged in non-violent political speech from the common areas of the mall? ¹

For the reasons stated below, we reverse the judgment of the court of appeals. Within the public spaces of the Mall, Article II, Section 10 protects petitioners' rights to distribute political pamphlets and to solicit signatures pledging non-violent dissent from the federal government's foreign policy toward Central America.

I.

Petitioners, Nelson Bock and Patricia Lawless-Avelar, are members of an unincorporated political association known as "The Pledge of Resistance." Petitioners sought permission to distribute their pamphlets and to solicit protest signatures in the common areas inside the Mall. Respondent, Westminster Mall Company ("Company"), owner of the Mall, denied petitioners' request.

Petitioners sought declaratory and injunctive relief on the ground that they had a protected right to disseminate information and to solicit signatures from the public as denied by respondent. Following discovery, the parties filed cross-motions for summary judgment. The district court denied petitioners' motion and granted respondent's motion. After we denied a petition for writ of certiorari under C.A.R. 50, the court of appeals affirmed the district court's judgment. We then granted certiorari pursuant to C.A.R. 49.

The Mall is a regional shopping center. Its primary geographic service zone is not limited to the City of Westminster ("City") but includes numerous Denver suburbs and extends to Boulder, Colorado. The Mall is one of two such centers anchored by five large department stores in the Denver metropolitan area. In addition to the five anchor stores, about 130 other retail and service establishments are tenants of the Mall, including a film theatre. Since an expansion in 1986, the Mall sprawls over approximately 118 acres, including parking for more than 6,500 cars. The central Mall area, counting the anchor stores, totals more than 1,390,000 square feet. Of this total, 134,000 square feet comprise the Mall's common areas. These corridors and concourses not only facilitate the flow of the browsing and/or buying public but also offer fountains, plant foliage, and seating for their convenience.

The Mall's common areas are open to the general public without charge, and no purchase is necessary to enter or exit the Mall. This open access to the Mall is proffered year-round, between the hours of 10:00 a.m. and 9:00 p.m., Monday through Saturday, and between noon and 6:00 p.m. on Sundays. These public hours are extended during more profitable shopping seasons, such as Christmas. In years past, retail sales in the Mall have accounted for more than ten percent of such sales in the City.

Regulating the use of the Mall's common areas is what the Company has called a "no solicitation" policy. With this policy, the Company purports strictly to prohibit controversial or political activities, the distribution of leaflets and handbills, and/or solicitation of any kind. Petitioners sought but were denied permission to distribute political leaflets within the common areas of the Mall. The Company relies on the City's trespass ordinance to enforce its policy.

In practice, however, the policy has not barred a variety of public entities and private groups from taking advantage of the common areas to communicate their messages. On the contrary, the Company has spent several thousand dollars each year to promote these activities. The Jefferson County Clerk has sponsored voter registration drives in the Mall's common areas. The Company has allowed a salute to the armed forces, with accepted displays of equipment and literature by various armed forces agencies. Representatives of these agencies were permitted to answer questions from the public and to provide them other information. There has also been a salute to the presidents of the United States, with a display of presidential portraits and information available to all. Art has been exhibited in the common areas, and dance has been staged there as well. Community bazaars have been permitted. The Boy Scouts and the Girl Scouts used the Mall for activities including cookie sales. The Salvation Army was permitted to solicit funds in the Mall.

There are links between the Company and several governmental entities and public monies. The City operates, rent-free, a police substation with a desk and a holding area in the Mall. From this substation, City police officers respond to complaints originating anywhere in the City. The Mall occupies a prominent location in the City across the street from the City Hall. Although the Company employs a private security service, two to four City police officers patrol the Mall during public hours. In addition, certain street and drainage improvements valued at over two million dollars were acquired by the City from the Company. This purchase was financed under the City's bond authority.

II.

We preface our analysis by re-affirming the high rank which free speech holds in the constellation of freedoms guaranteed by both the United States Constitution and our state constitution. The United States Supreme Court and this court have been extraordinarily diligent in protecting the right to speak and to publish freely. Whether this is because free speech has been conceived as a means to the preservation of a free government or as an end in itself, the results have been the same. Free political speech, such as that involved in this case, occupies a preferred position in this country and this state.

A.

Concurring in Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927), ² Justice Brandeis wrote a most eloquent defense of the freedom of speech and press:

Those who won our independence ... believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; ... that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American Government.

The role of free speech was re-emphasized in Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946), where the United States Supreme Court held that a state could not punish a person for distributing religious pamphlets on the sidewalk of a company town contrary to the company's regulations. In striking the balance with other constitutional rights, the Marsh Court was unequivocal:

When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.

Marsh, 326 U.S. at 509, 66 S.Ct. at 280. The right to speak and to publish under the First Amendment, prevailing in Marsh and other United States Supreme Court cases, ³ has been similarly preferred by this court.

B.

In People v. Vaughan, 183 Colo. 40, 49, 514 P.2d 1318, 1323 (1973), we declared unconstitutional a statute criminalizing the mutilation, defacement or defilement of the American flag. The state's interests in preserving the symbols of democracy and/or setting the appropriate limits of dissent, while undeniably important, were insufficient to preserve the statute "[b]ecause of the preferred position of freedom of speech in the United States Constitution." Id. This is so even though the First Amendment is framed solely in the negative: no law shall be made abridging the freedom of speech or of press.

In contrast, Article II, Section 10 of the Colorado Constitution advances beyond the negative command of its first clause to make an affirmative declaration in the second clause. The complete text of our free speech article is as follows:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and fact.

Colo. Const. Art. II, Section 10 (emphasis added). ⁴ In People v. Ford, 773 P.2d 1059, 1066 (Colo.1989), we emphasized this dual guarantee: "The object of article II, section 10 is to 'guard the press against the trammels of political power, and secure to the whole people a full and free discussion of public affairs' " (quoting Cooper v. People, 13 Colo. 337, 362, 22 P. 790, 798 (1889)). Thus, the second clause of Article II, Section 10 of the Colorado Constitution necessarily enhances the already preferred position of speech under the First Amendment of the United States Constitution.

III.

Consistent with the United States Constitution, we may find that our state constitution guarantees greater protections of petitioners' rights of speech than is guaranteed by the First Amendment. The United States Supreme Court's First Amendment jurisprudence on...