Summary
finding a state constitutional right to leaflet in a privately owned shopping center
Summary of this case from Golden Gateway Center v. Golden Gateway Tenants Ass'nOpinion
No. 90SC433
Decided October 7, 1991. Rehearing Denied November 4, 1991.
Certiorari to the Colorado Court of Appeals.
Tim Atkeson, Arnold Porter; David H. Miller, American Civil Liberties Union, for Petitioners.
James L. Aab; Elizabeth Drill Nay, Robert Steven Caldwell, Lewis, Rice Fingersh, for Respondent.
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?"
The court of appeals analyzed the question of petitioners' rights under both the United States and Colorado Constitutions, but we granted certiorari to address the issue only under the Colorado Constitution. The United States Supreme Court has held that the First and Fourteenth Amendments to the United States Constitution do not protect the distribution of leaflets within a privately-owned mall. Hudgens v. National Labor Relations Board, 424 U.S. 507, 518 (1976).
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 (1927), Justice Brandeis wrote a most eloquent defense of the freedom of speech and press:
Whitney, where the Court affirmed defendant's conviction for violating the state's criminal syndicalism act, was one of four cases in the 1920s in which the court announced but then rejected the clear and present danger test. "Brandeis's reason for concurring rather than dissenting was that Whitney had not properly argued to the California courts that their failure to invoke the danger test was error . . . ." Martin Shapiro, in The First Amendment, Leonard W. Levy, et al., eds. MacMillan (1990) p. 135. Whitney was overruled in Brandenburg v. Ohio, 395 U.S. 444 (1969).
"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 (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. The right to speak and to publish under the First Amendment, prevailing in Marsh and other United States Supreme Court cases, has been similarly preferred by this court.
See, e.g., Boos v. Barry, 485 U.S. 312, 318 (1988), acknowledging that speech which is "classically political" has long been afforded the highest possible protections. See also Texas v. Johnson, 491 U.S. 397, 411 (1989), and Frisby v. Schultz, 487 U.S. 474, 479 (1988). See also Associated Press v. United States, 326 U.S. 1, 20 (1945) ("Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom . . . . Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.").
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). 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.
Here, the parties agree that the second clause is the relevant clause.
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 the scope of free speech in the face of private power has had a rather tortuous history, with speech in nominally private spaces at first accorded protection, Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968), then eclipsed in Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and finally suffering a rejection in Hudgens v. NLRB, 424 U.S. 507 (1976). Respondent urges us to follow the twists and turns of this federal road to the end and deny petitioners' claims. We decline. We are unpersuaded by the United States Supreme Court's various reasonings in this line of cases, especially when given an invitation by that Court in a subsequent case, PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), treated below, to forge our own path. The federal about-face was, therefore, not the United States Supreme Court's last word on free speech in the several states. The definitive word was left to the state courts to write.
A.
In PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, the United States Supreme Court explicitly acknowledged each State's "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." 447 U.S. at 81. In our discussion above, we have highlighted the second clause of Article II, Section 10 of our own constitution, which is an affirmative acknowledgement of the liberty of speech, and therefore of greater scope than that guaranteed by the First Amendment. Moreover, the United States Supreme Court also has recognized that "[i]t is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions." Minnesota v. National Tea Co., 309 U.S. 551, 557 (1940). We discern no obstacles in the United States Supreme Court's First Amendment jurisprudence which would limit our construction of the Colorado Constitution. Indeed, the converse is true.
Following PruneYard, state courts have divided on the issue. Several states have held that speech activities similar to that involved here were protected by their state constitutions regardless of whether the activity may have been protected by the First Amendment. Robins v. PruneYard Shopping Center, 23 Cal.3d 899, 592 P.2d 341, 153 Cal.Rptr. 854 (1979); State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980), appeal dismissed sub nom. Princeton University v. Schmid, 455 U.S. 100 (1982); Alderwood Associates v. Washington Environmental Council, 96 Wn.2d 230, 635 P.2d 108 (1981). But cf. Cologne v. Westfarms Assocs., 192 Conn. 48, 469 A.2d 1201 (1984); State v. Felmet, 273 S.E.2d 708 (N.C. 1981); Western Penn. Socialist Workers 1982 Campaign v. Connecticut Gen. Life Ins. Co., 512 Pa. 23, 515 A.2d 1331 (1986); Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832 (1987). Each of the cases holding that the speech was protected under the state constitution dealt with a state constitutional provision similar in wording to Article II, Section 10. The California Constitution, at issue in PruneYard, provided: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right." PruneYard, 23 Cal. 3d at 908-09, 592 P.2d at 346, 153 Cal.Rptr. at 859. The New Jersey Constitution, at issue in Schmid, provided: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right." Schmid, 84 N.J. at 556-57, 423 A.2d at 626. The Washington Constitution contained similar wording: "Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right." Alderwood Associates, 96 Wn. 2d at ___, 635 P.2d at 114.
The PruneYard Court affirmed the California Supreme Court's holding that the California Constitution protected the right of individuals to solicit signatures in opposition to a United Nations resolution in the court-yard of a privately-owned shopping center. In PruneYard, the Court rejected the argument that Lloyd, 407 U.S. 551, stood for the proposition that a state is prevented "from requiring a private shopping center owner to provide access to persons exercising their constitutional rights of free speech and petition when alternative avenues of communication [were] available." 447 U.S. at 80. This means that, by its constitution, a state may afford individuals the right of speech and petition in commercial and retail centers otherwise privately owned. The First Amendment is a floor, guaranteeing a high minimum of free speech, while our own Article II, Section 10 is the "applicable law" under which the freedom of speech in Colorado is further guaranteed. PruneYard, 447 U.S. at 81.
In Lloyd, the Court addressed the question "as to the right of a privately owned shopping center to prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations." Lloyd, 407 U.S. at 552. The respondents in the case had distributed within a large shopping center handbill invitations to a meeting to protest the draft and Vietnam War. Id. at 556. Security guards informed the respondents they were trespassing and would be arrested unless they stopped distributing the handbills. Id. The Court vacated an injunction granted to respondents which permitted them to distribute the handbills within the shopping center. Id. at 570.
B.
Colorado's tradition of ensuring a broader liberty of speech is long. For more than a century, this Court has held that Article II, Section 10 provides greater protection of free speech than does the First Amendment. See People v. Ford, 773 P.2d 1059 (Colo. 1989); Parrish v. Lamm, 758 P.2d 1356, 1365 (Colo. 1988); People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 356 (Colo. 1985); People v. Berger, 185 Colo. 85, 521 P.2d 1244 (1974); In Re Hearings Concerning Canon 35, 132 Colo. 591, 296 P.2d 465 (1956); Cooper v. People, 13 Colo. 337, 22 P. 790 (1889).
Earlier in this opinion, we noted Cooper's recognition of the dual guarantee in Article II, Section 10. That early statement of principle, contained in an opinion issued within a few years after the Colorado Constitution was adopted and while its drafting was a living memory, is persuasive evidence of the intended broad scope of Article II, Section 10. In Canon 35, concerning a blanket exclusion of press photographers from the courtroom, references to the First and Fourteenth Amendment were omitted "for the reason that the provision [Art. II, Sec. 10] of our Colorado Constitution is more inclusive in its coverage of the subject and is equally binding upon us." 132 Colo. at 592, 296 P.2d at 466-67. In Berger, reviewing a conviction for promotion of obscene materials in violation of a state statute, we held that:
"we must find not only that the obscenity standards of the statute, as construed under the First Amendment, are met, but also that there has been some abuse of freedom of speech, as envisioned under the broader protective standard of Article II, Section 10 of the Colorado Constitution."
185 Colo. at 89, 521 P.2d at 1245-46.
This more stringent scrutiny of free speech issues under Article II, Section 10 has continued in recent cases. In Seven Thirty-Five East Colfax, Inc., and Ford, we held that a tolerance standard, being the most protective of free expression, was the only standard which satisfied Article II, Section 10. Finally, in Parrish, while scrutinizing section 18-13-119, 8B C.R.S. (1986), which prohibited health care providers from advertising a willingness to waive an insured's deductible co-payment, we flatly stated that: "Section 10 provides greater protection for freedom of speech than does the first amendment to the United States Constitution." 758 P.2d at 1365. With this precedential background, we turn to the arguments of the parties.
IV.
Petitioners argue that Article II, Section 10 of our constitution guarantees free speech not only as against state or governmental action but also as against certain exercises of private power. Respondents on the other hand argue that the second clause of Section 10 is limited by the first clause and both apply only to direct state action which infringes an individual's right to speak or publish. The facts of the case here, however, belie this simplistic division of the universe into public and private spheres. Indeed, one consequence of the larger measure of protection conferred on speech by our state constitution is the judicial recognition of the impact on constitutional liberties by the many hybrid forms of governmental involvement and/or by private interests performing the equivalent of public functions.
Where governmental entities or public monies are shown by the facts to subsidize, approve of, or encourage private interests and such private interests happen also to restrict the liberty to speak and to dissent, this court may find that such private restrictions run afoul of the protective scope of Article II, Section 10. It is possible for interests, otherwise private, to bear such a close relationship with governmental entities or public monies that such interests are affected with a public interest. Moreover, with or without the benefit of that relationship, a private project may develop and operate in a manner such that it performs a virtual public function.
A.
Our determination of the form or degree of governmental involvement present in a particular case must be based on the "framework of the peculiar facts or circumstances present." Burton v. Wilmington Parking Authority, 365 U.S. 715, 726 (1961). "Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance." Id. at 722. In Denver Welfare Rights Org. v. Public Util. Comm'n, 190 Colo. 329, 335-36, 547 P.2d 239, 243-44 (1976), we recognized that the nexus between a governmental authority and private action "is neither readily apparent nor easily discoverable in various factual settings."
Considering all the facts and circumstances underlying the Mall's operation with the preferred liberty of speech in mind, we conclude that there was governmental involvement in this case, most assuredly triggering the protections of Article II, Section 10. Respondent's denial of petitioners' rights to distribute political pamphlets and to solicit pledge signatures in the common areas of the Mall therefore violated that provision of the Colorado Constitution. Because we hold, on the facts of this case, that governmental involvement exists and that the open and public areas of the Mall effectively function as a public place, we leave for another day the issue as to whether some lesser form or degree of governmental involvement is a prerequisite to successfully pleading the protections of Article II, Section 10.
Since PruneYard, it is apparent that the United States Supreme Court's varied analyses of "state action" in the context of a First Amendment claim, although instructive, are not dispositive of free speech cases arising under our state constitution. 447 U.S. at 81. When a state constitution like ours is more protective of free speech than is the federal constitution, a finding of "state action" according to federal doctrine is unnecessary. In any event, Supreme Court "cases deciding when private action might be deemed that of the state have not been a model of consistency." Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, ___, 111 S.Ct. 2077, 2089 (1991) (O'Connor, J., dissenting). Thus for example, Justice Marshall, concurring in PruneYard, found state action present in all three of the "shopping center" cases, i.e., Logan Valley, Lloyd, and Hudgens. 447 U.S. at 90 (citing Shelley v. Kraemer, 334 U.S. 1 (1948) and New York Times v. Sullivan, 376 U.S. 254 (1964)). We note that none of these cases had the governmental involvement which is present here.
B.
Our finding that governmental involvement exists here is not based on any single factor. Nevertheless, we find significant the City's two million dollar purchase, financed through the sale of municipal bonds, of improvements which the Company made to adjacent streets and drainage systems. It is now common for governmental entities to compete, by providing financial subsidies or inducements, to attract private business so as to reap the benefits of an increased tax base. Economic necessity, however, cannot provide the cover for government-supported infringements of speech.
Also significant is the fact that the City operates a police substation in the Mall from which the police respond to complaints throughout the City. The Company provides the space rent free to the City and, in effect, the Mall thus provides a municipal service. The presence of the substation in the Mall conveys the impression that the City participates, either symbolically or actually, in what are in effect content-based restrictions of speech by the Company. That two to four City police officers routinely patrol the common areas of the Mall does nothing to dispel that impression. The enforcement of the Mall's "no solicitation" policy through the City's trespass ordinance, possibly by those same officers patrolling the Mall, transforms the impression into experience. Thus, there is an ongoing mutual subsidization between the Company and the City. The necessity of keeping the peace likewise cannot camouflage government-aided suppression of non-violent political speech.
See Logan Valley, 391 U.S. at 319-20 ("[T]he State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put."); Marsh, 326 U.S. at 509 ("[Private ownership of property] is not sufficient to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. Insofar as the State has attempted to impose criminal punishment . . . for undertaking to distribute religious literature in a company town, its action cannot stand.").
Finally, there is a highly visible governmental presence in the Mall. The Army, Navy and the Marine Corps maintain recruiting offices in the Mall. The Jefferson County Clerk conducts voter registration drives in the Mall, reminding citizens of their political duties. In sum, the financial participation of the City in the Mall's progress, the arrangements with the City police substation, and the active presence of other governmental agencies in the common areas of the Mall, constitute governmental involvement in the operation of the Mall.
C.
We are also persuaded that the Mall functions as the equivalent of a downtown business district. As we noted, the Mall is a vast market, now extending over 100 acres. The 130 commercial and retail establishments situated in the Mall are accessible via more than 130,000 square feet of open, common areas, walks and concourses. Walking through or sitting in these open areas each year are many thousands of the public who otherwise engage, no doubt, in conversations on all subjects, including the political. Thus, the historical connection between the marketplace of ideas and the market for goods and services is not severed because goods and services today are bought and sold within the confines of a modern mall. To conclude otherwise would be to allow the vagaries of contemporary urban architecture and planning, or the lack thereof, to prevail over our valued tradition of free speech.
Consider Hudgens v. NLRB, 424 U.S. at 539-40 (Marshall, J., dissenting) ("[T]he owner of the modern shopping center complex, by dedicating his property to public use as a business district, to some extent displaces the `State' from control of historical First Amendment forums, and may acquire a virtual monopoly of places suitable for effective communication. The roadways, parking lots, and walkways of the modern shopping center may be as essential for effective speech as the streets and sidewalks in the municipal or company-owned town.").
The range of activities permitted in the common areas of the Mall also indicates the extent to which the Mall effectively functions as a latter-day public forum. The Company allows a variety of groups access to the visiting public through the use of the common areas of the Mall. We have noted that, for example, the Salvation Army solicits donations from the public strolling the Mall. The expressive conduct of artists and dancers has been allowed. Religious expression has not been denied. The common areas are used by a market research firm to survey the public's likes and dislikes. Surely the Mall's theatre has exhibited films of politically controversial content, sparking lively debates among the Mall's patrons. The Company's prohibition of petitioners' non-violent political speech, if allowed to stand, would amount therefore to a non-neutral, content-based restriction. Given that other groups effectively express themselves in the Mall's common areas, those open areas can easily accommodate petitioners' exercise of their liberty of speech. Under these circumstances, the common areas function as virtual public spaces.
"[T]he First Amendment and Article II, Section 10 of the Colorado Constitution afford protection to all forms of communications, including moving picture films, which attempt to convey a thought or message to another person." Houston v. Manerbino, 185 Colo. 1, 6, 521 P.2d 166, 168 (1974).
We emphasize that there has been no showing that petitioners' activities will adversely affect the Mall's business operations. Petitioners' chosen mode of speech, distributing leaflets and collecting signed pledges, is well within the mainstream. The content of their speech is classically political. In addition, the size of the Mall, the number of visitors the Mall receives, plus the already extensive use of the common areas of the Mall by other individuals and groups, demonstrate that petitioners' activities can be conducted without interfering with the Mall's normal operations and therefore will not affect the Company's property rights. See PruneYard, 23 Cal. 3d at 909-12, 592 P.2d at 347-48, 153 Cal.Rptr. at 860-61 ( aff'd, 447 U.S. 74, 100 S.Ct. 2035) ("[W]e do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment."). Further, the Company is free to impose reasonable time, place and manner restrictions on the conduct of petitioners' activity, similar to those imposed on the other activities which it has permitted in the past.
V.
For these reasons, we reverse the judgment of the court of appeals affirming the district court's denial of petitioners' request to speak freely and solicit signatures in the Mall. The cause is remanded with directions to enter summary judgment for petitioners.
JUSTICE ERICKSON dissents, and CHIEF JUSTICE ROVIRA and JUSTICE VOLLACK join in the dissent.