Robertson v. Westminster Mall Co.

• Decision Date: 27 September 2001
• Docket Number: No. 98CA1782.,98CA1782.
• Citation: 43 P.3d 622
• Parties: Aaron L. ROBERTSON and Spencer A. Cowen, Plaintiffs-Appellants and Cross-Appellees, v. WESTMINSTER MALL COMPANY, a Colorado corporation, Defendant-Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

43 P.3d 622

Aaron L. ROBERTSON and Spencer A. Cowen, Plaintiffs-Appellants and Cross-Appellees, v. WESTMINSTER MALL COMPANY, a Colorado corporation, Defendant-Appellee and Cross-Appellant.

No. 98CA1782.

Colorado Court of Appeals, Div. III.

September 27, 2001.¹

Certiorari Denied April 15, 2002.

Arrington & Rouse, P.C., James P. Rouse, Denver, CO, for Plaintiffs-Appellants and Cross-Appellees.

Aab & Botts, LLC, James L. Aab, Robert E. Botts, Jr., Denver, CO, for Defendant-Appellee and Cross-Appellant.

Opinion by Judge ROY.

Plaintiffs, Aaron L. Robertson and Spencer A. Cowen, appeal from a judgment validating certain regulations of defendant, Westminster Mall Company (Westminster), that operated to limit plaintiffs' "witnessing" activities at the Westminster Mall (Mall). Westminster cross-appeals that portion of the order invalidating other regulations. We affirm in part, reverse in part, and vacate in part.

Plaintiffs engaged in a religious activity known as "witnessing," which involves contacting persons and engaging in an explanation or discussion of the gospel of Jesus Christ. Plaintiffs approached strangers to converse with them, and if a stranger responded positively, plaintiffs would hand him or her an informational pamphlet.

Plaintiffs conducted witnessing at the Mall. They contacted patrons who were approximately their age, i.e., young adults. The largest concentration of young adults at the Mall is found near the center court, the Disney Store, the game arcade, and the movie theaters.

On several occasions, security personnel asked plaintiffs to leave because they had not applied for permission to engage in their activities at the Mall. Other times, security personnel advised plaintiffs to go to the management office to obtain permission. In one incident, security personnel allegedly detained one of the plaintiffs for witnessing in a tenant's store rather than in the common areas.

Plaintiffs filed suit seeking declaratory and injunctive relief enjoining Westminster from enforcing its rules and regulations restricting plaintiffs' rights to engage in witnessing activities at the Mall.

The trial court, relying on article II, section 10 of the Colorado Constitution, which guarantees an individual's freedom to speak, write, or publish, found the following regulations to be unreasonable and, therefore, unconstitutional: (1) a two-month "blackout" period during particularly busy times of the year; (2) a two-working-days (forty-eight-hour rule) and a revised one-working-day (twenty-four-hour rule) period to review applications for access to the Mall to solicit patrons, with applications necessary for each use; (3) an insurance requirement that an applicant obtain a $1 million general liability insurance policy as a condition of approval; and (4) a regulation prohibiting more than three people from using the designated free speech areas at any time.

The court found all the other regulations reasonable, including the regulation designating certain free speech areas in the Mall and restricting plaintiffs' activities to those areas. Plaintiffs appeal this latter ruling, and Westminster cross-appeals parts of the former.

Our review is de novo. Lewis v. Colorado Rockies Baseball Club, 941 P.2d 266 (Colo.1997)

. In this case, as in Lewis, the facts, for the most part, are not disputed, although the legal conclusions to be drawn from those facts are very much in dispute.

The United States Supreme Court has held that there is no First Amendment right to solicit or distribute handbills on the premises of a privately owned and operated shopping center. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). States can, however, extend freedom of speech protections beyond the First Amendment so as to limit the right of the owner of a shopping center to prohibit or regulate free speech activities. PruneYard Shopping Center v. Robins, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980).

In pertinent part, article II, section 10 of the Colorado Constitution states:

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....

This provision provides greater protection for freedom of speech activities than does the First Amendment. See Parrish v. Lamm, 758 P.2d 1356 (Colo.1988)

.

In Bock v. Westminster Mall Co., 819 P.2d 55 (Colo.1991), the supreme court held that Westminster was obligated to provide a forum for individuals wishing to exercise their free speech rights. The Bock court also stated that Westminster was free to impose restrictions on the time, place, and manner of speech activities, provided the restrictions were content neutral and narrowly tailored, addressed a significant interest, and left open ample alternative channels of communication.

At the outset, we note that the parties did not dispute that the regulation limiting protected free speech activities to the food court is content neutral. They also do not dispute that Westminster has legitimate interests to protect and a right to regulate the time, place, and manner of speech activities for that purpose. The only issues presented on appeal are whether the regulations and limitations imposed are too restrictive and whether the regulations leave open alternative means of communication.

I.

Plaintiffs first contend that the trial court erred in upholding the regulation limiting free speech activities to a designated area, specifically, the food court. We disagree.

The location limitations imposed by Westminster limited free speech activities to three locations, two in front of department stores and the third in the food court. The trial court found the first two insufficient, standing alone, but concluded that the third, the food court, was constitutionally sufficient.

With respect to the food court as a forum for free speech activity, the trial court found, with support in the record, as follows:

The food court space is by a major entrance of the Mall which has been characterized as the single most important entrance. The space is reasonably large, extends five feet into the main north/south traffic corridor of the Mall and is close to the food court which is clearly a major attraction to people of all ages and demographic description who enter the Mall.... Although the food court space may not be the ideal location for targeting any particular group, it is a perfectly reasonable space whereby contact can generally be made with a significant number of people who enter and go to the Mall. I am not persuaded that the presence of the telephones or the presence of trees makes the food court space an inadequate location, and its size appears to be adequate and the access to major portions of the public appears to the Court to be adequate.

The evidence shows that, in determining which areas to designate as free speech areas, Westminster considered the following factors: (1) the nature of protected free speech rights, (2) the rights of the Mall patrons and Westminster's responsibilities to those patrons, (3) the commercial nature of the Mall's business enterprise, (4) the layout and design of the Mall, (5) security and safety issues, (6) the free flow of pedestrian traffic, (7) the need to provide Mall patrons with unimpeded access to stores, (8) the need to provide persons exercising their right to free speech access to Mall patrons, (9) the need to avoid the obstruction of stores, and (10) the presentation and operation of promotional events.

Here, while plaintiffs' access to the patrons of the Mall is not universal, it is apparent that they have an opportunity to contact a substantial portion of the Mall patrons on any given day and at any given time. Therefore, the regulation limiting plaintiffs' witnessing to the food court area is reasonable and not unduly restrictive.

Plaintiffs, relying on Lewis v. Colorado Rockies Baseball Club, supra,

argue that they need access to one hundred percent of the Mall's common areas and patrons. However, in Lewis, the plaintiff sought permission to distribute his game-day alternative baseball programs and scorecards outside of Coors Field to fans entering the ballpark to attend a game. The Colorado Rockies prohibited such distribution by anyone other than its exclusive licensee. The supreme court found this prohibition unconstitutional because, inter alia, there were no other effective alternative channels of communication for the sale of game-day baseball programs except in, or immediately adjacent to, the ballpark.

Here, in contrast, plaintiffs request access for witnessing purposes to all the common areas of the Mall so that they may have an opportunity to talk to the maximum number of people in a given time. More particularly, they wish access to locations within the Mall that they have concluded are most frequented by young adults, their target audience. Unlike Lewis, the target audience here is not limited as to both location and time. A general audience of young adults can be found at many different locations and special events in the Mall and at different and varied times.

Plaintiffs' request for unlimited access to the Mall ignores Westminster's right reasonably to regulate the time and place of the activity on its property. Plaintiffs have not cited any case that requires the owner of a private shopping center to grant access to the entire shopping center to those seeking to communicate with the patrons. Indeed, all of the authority of which we are aware allows the owner of a shopping center to limit such conduct to certain locations. See, e.g. Union of Needletrades v. Superior Court, 56 Cal.App.4th 996, 65 Cal.Rptr.2d 838 (1997)

.

We therefore conclude that Westminster's regulation designating the food court for free speech activity does not violate the free speech rights of the plaintiffs. The food court area provides an adequate forum in...