Colorado Real Estate Journal -

Free speech for mall owners: How public is private speech?

The “Occupy Wall Street” movement has caused many Americans to have a flashback to their middle school civics class on free speech. While Occupy Wall Street protesters have mainly limited their presence to sacred free speech property, such as sidewalks and parks, private retail landowners must consider their liability to host these types of free speech enthusiasts. Historic town centers with a motley of individual stores connected by sidewalks rampant with soapbox speakers have evolved into government-backed indoor shopping centers that provide quasipublic stages for modern day rhetoricians. So, how can shopping mall owners prevent common areas and walkways from turning into the next Central Park? First, a brief lesson in the law of free speech.

While most Americans are familiar with the right to free speech under the First Amendment to the U.S. Constitution, few are familiar with the Colorado Constitution’s protection of free speech under Article II, Section 10, which 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.” The U.S. Constitution provides a floor for guaranteeing free speech, and the Colorado Constitution offers even greater protection.

Infringement of the right to free speech historically required a government actor to prohibit certain expressions made on public property at traditional public forums (e.g., sidewalks and parks), designated public forums (e.g., conference rooms at state universities) or nonpublic forums (e.g., subway stations). This body of law then evolved under the “state action doctrine” where civilian actors were held liable for civil rights infringements when government services were provided at the request of the government (e.g., prisons run by private enterprises).

However, the 1991 Colorado Supreme Court landmark case of Bock v. Westminster Mall Co. acknowledged an alternative scenario for free speech infringement by civilian actors and pushed the protection of free speech under the Colorado Constitution. Under this case law, the right to free speech is protected 1) at privately owned commercial and retail centers with sufficient government associations; and 2) where a “public function” is provided.

First, government associations may arise where government entities or public monies subsidize, approve or encourage private interests. Examples from the Bock case included selling municipal bonds used to improve adjacent streets and drainage systems, providing financial subsidies or inducements to mall owners, operating municipal services on mall property rent free, having local police patrol common areas, providing military recruiting offices and allowing voter registration drives on mall property.

Second, a mall may provide a public function “equivalent of a downtown business district.” Malls typically encompass tens to hundreds of acres of land, comprise commercial and retail establishments, and have hundreds of thousands of square feet of common areas for walking and sitting. Consequently, larger malls with a regional presence will find it more difficult to argue that a public function has not been provided when it possesses nearly all of the attributes of an outdoor municipality-run marketplace.

The Bock case warns mall owners that receiving economic assistance from the government and using urban architecture to design common areas and walkways like an indoor marketplace can act as a recipe for free speech infringement lawsuits. Colorado is not alone with this legal philosophy; California and a handful of other states can be thanked (or blamed) for issuing similar court opinions aggrandizing civil liberties on private property.

Now, the good news: The right to free speech in shopping malls is not unlimited.

Free speech litigation against shopping malls highlights the need for a public access and speech policy to define the bounds of legally permissible content-neutral speech through “reasonable time, place, and manner restrictions,” and content-based speech (e.g., a “no hate speech” rule).

Reasonable time restrictions limit free speech inside a mall to the mall’s hours of operation – consistent with civil and criminal trespass laws. However, advanced notice in excess of 24 hours prior to an event is prohibited.

Reasonable place restrictions require a court to consider the commercial nature of the mall, the architectural layout and design, security and safety issues, the flow of pedestrian traffic, and the need for unimpeded access to stores. Limiting demonstrations to a food court has been upheld under these factors and provides citizens the ideal opportunity to interact with many people.

Reasonable manner restrictions may enable a mall owner to preclude tents used for sleeping, wearing masks, disorderly conduct, sound amplification, etc. Conversely, malls previously have been required to permit speech in the form of distributing leaflets, displaying art, presenting a dance, and plain old speaking extemporaneously.

Malls also should consider rules for disclosing protester names, requiring general liability insurance, paying cleaning/ damage deposits, indemnifying mall owners and prohibiting interference with mall tenants.

While the next Gettysburg Address or “I Have a Dream” speech is unlikely to be delivered in a modern-day mall, we must remind ourselves that the ideas expressed by great orators often have had humble beginnings on top of a soapbox on a retail district sidewalk. Balancing the benefits derived from government support against having to tolerate free speech enthusiasts is a necessary evil for mall owners in Colorado. Sometimes clear legal rules exist to limit the public’s speech, but the uncertainty over many distinctions in existing case law creates the need for an expert legal opinion to assuage the impact of your next up-and-coming Occupy Wall Street demonstration.