Property Rights

Yes, You Cannabis, but Not in Our Mall


A shopping mall in Aurora, Colorado, has banned John Gailey, a medical marijuana patient, for a year because he insisted on wearing his "Yes We Cannabis" T-shirt on a "family night." The decision seems pretty silly (especially since, as Westword notes, the Spencer Gifts outlet at the very same mall sells marijuana-themed apparel), and it no doubt reflects a government-promoted anti-drug orthodoxy. But is it a violation of Gailey's constitutional rights, as his lawyers claim? Not under the U.S. Constitution, because the First Amendment applies only to government entities. The U.S. Supreme Court has dallied with the idea of applying the First Amendment to private property owners, but it rightly reconsidered. The Colorado constitution's free speech clause, however, is phrased more broadly:

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.

It seems clear that the second part elaborates on the first, so that both apply to government action. But in 1991 the Colorado Supreme Court interpreted the clause to mean that Westminster Mall had to let activists use "public areas" to "distribute political pamphlets" and "solicit signatures pledging non-violent dissent from the federal government's foreign policy toward Central America." It declared that "the Mall functions as the equivalent of a downtown business district," arguing that "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." Not convinced yet? The court also noted "government involvement"—specifically, "a police substation in the Mall" and "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."

Jessica Corry, John Gailey's lawyer, says "the Supreme Court has been clear…that private commercial retail centers that open themselves to the public can function as a town square." Yet the court also allowed Westminster Mall to impose "time, place, and manner" regulations, and in 2001 a state appeals court upheld a very strict set of them. Among other things, those rules required advance permission for "speech activities," limited them to three locations at the mall, and forbade them entirely during especially busy "blackout" periods. Town Square at Aurora's decision to ban drug-themed T-shirts on "family night" seems quite modest by comparison, although Gailey could argue that the rule he violated goes too far because it discriminates against particular viewpoints.

But he shouldn't try. The vast majority of courts to address the issue have rightly rejected the specious reasoning at the heart of the Colorado Supreme Court's decision, which applied a provision aimed at government to private property owners. Just as I have no right to hold a rally in your living room or write an article on your computer without your permission, I have no right to demand freedom of speech inside a commercial building you own. And as I argued a few years ago, when I discussed a California Supreme Court ruling that required a San Diego mall to let union protesters distribute leaflets urging shoppers to boycott one of its tenants, undermining property rights ultimately undermines freedom of speech, which cannot be exercised without them.

Scott Bullock discussed a similar New Jersey case in a 1995 Reason article.

[Thanks to Terry Michael for the tip.]

NEXT: Selling Free Food

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  1. 30 years from now, Rand Paul’s kid will be in hot water for defending the right of the mall to police speech on Family Night.

    Of course, as Mike Judge has shown us, by then the mall will have a restaurant called Buttfuckers, and their lawyer will have graduated from Costco.

    1. Have you tried the fries at Buttfuckers? They’re to die for!

      Just watch out for the pickle on your burger.

  2. I’ll probably get jumped on for this but, oh well.

    If you get govt funds to build your mall/sports complex/whatever it is a public space, and people(tax payers) should expect that their constitutional rights will be respected in those places.

    Maybe, if this was the case, then the cozy relationship between rent seeking developers and their government cohorts wouldn’t end up costing us so much money.

    1. You’re right — you will get jumped for this. Your definition of a “public place” is as much of a stretch as the definition of public use in the Kelo decision.

      By this definition, if there is a government-built street adjacent to my house, then my living room becomes a public place. Or the subsidy the government offered me for a solar hot water heater? Again, by this definition, my sinks become public drinking fountains.

      1. Thing is, in the street I already have an expectation of constitutional protection. On your private property, I would respect your rules, however arbitrary they may be. Once I start paying for things, I expect all the rights and privileges of an American Citizen.

        That’s the thing with corporate welfare, people expect the government(tax payers) to fund their ventures, but with all the privileges of private ownership. Something government subsidized is by definition not private.

        1. So if you’re in my house, and I sell you a pack of gum for a buck, I lose the ability to evict you from my property if you misbehave according to the rules of conduct I use?

          Private property does not become public property because a commercial transaction has occurred.

          1. Private property does not become public property because a commercial transaction has occurred.

            Could you please point out where I made such an assertion.

            1. Could you please point out where I made such an assertion.

              It’s implied here: “On your private property, I would respect your rules, however arbitrary they may be. Once I start paying for things, I expect all the rights and privileges of an American Citizen.”

              You’re saying once you buy anything, private property can no longer be treated as truly private, in that you no longer have to “respect my rules”.

              1. I think you may have misread my intentions.

                When I say;Once I start paying for things, I expect all the rights and privileges of an American Citizen.”, what I mean is when I pay for the business itself, as a taxpayer.

                An example would be a publicly funded stadium, and not a privately owned business that I happen to purchase something at.

                1. Does someone’s taking the mortgage deduction trigger the transformation to a publicly-funded venue such that their home becomes a public place under your guidelines?

                  Tax credit for new windows? Subsidy for solar panels which goes to the installer as part of the deal? Government-backed mortgage?

                  At what point do you consider yourself to be paying for the house?

                  1. When the state moves from protecting private property to providing private property an inevitable blurring of the line between public and private occurs.

                    This is the best argument against government meddling in trade, because the providing cannot occur without the blurring.

                    1. Well, I think your point would be better if the gov’t simply attached strings to subsidies beforehand – “Hey, take this money, but the 1st Amendment comes with it.” Demanding ex post facto that now the constitution attaches on private property is a little different.

                2. your understanding of the “public forum” is really wrong. Not even all publicly owned property is a free speech zone. the US Supreme Court has already upheld speech restrictions in gov’t owned airports. Thus, your assertion that because something is funded with tax dollars it = a public forum just doe not conform to the reality of the law.

        2. You have a right of constitutional protection on my private property — I can’t murder you, for example — but not a right to remain on that property if what you do offends me.

          You retain the right to be treated constitutionally as the mall cops escort you off that property. You do not have the right to remain there and be a nuisance.

          1. Is property “private” if its paid for by the taxpayers?

            1. I’d still say yes, particularly if the agreement entered into at the time the subsidy was made did not include the abrogation of the mall’s First Amendment right to exclude those with whom it disagrees. Why should the State be allowed to make an agreement, then decide to change the rules on a whim?

              1. Why should the State be allowed to make an agreement, then decide to change the rules on a whim?

                The state shouldn’t have the power to make these “agreements” in the first place.

                1. We can agree on that much, yes.

              2. Why should the State be allowed to make an agreement, then decide to change the rules on a whim?

                That’s a foreseeable consequence of any such arrangement with the State.

                1. Good point; I would hope full constitutional protections to be required as an ex ante provision of any subsidy.

                  Or, even better, no subsidies.

                  Or best – no government at all.

      2. But it is the state which acts to enforce the mall’s property rights. There is your state action.

        1. Unless of course he was removed by private security.

        2. Meh, I see you point – but I’m not totally sure that enforcement of contracts/property rights, for whatever reason is state action.

          Shelly v. whomever says so to some degree, but I don’t think anyone takes that case seriously.

  3. Marijuana is much worse than Alcohol, with Marijuana you know where you’ve hit a high, with Alcohol you just keep going and going. And it causes much more harm too.

    1. Troll? Or more evidence of marijuana -induced brain damage?

      1. Yes, you are a troll.

        1. Hey, don’t rule out evidence of alcohol-related brain damage.

  4. The problem with these types of cases is that libertarians often ignore the fact that the state is necessarily involved.

    If Mr. Gailey presents himself at the mall, who is going to enforce the mall’s property rights? If mall security escorts him off the property, that is one thing; if the mall does not have Paul Blart, management would probably wuss out and call the cops-thus triggering state action. I do not consent to my property being taken so that the mall’s property rights can be enforced by SWAT or stormtroopers.

    Moreover, what if Gailey wants to patronize a merchant in the mall? Does the mall retain the right to interfer with prospective business relations of the merchant? The mere act of leasing to merchants, in and of itself, constrains the rights of the mall owner to prohibit a person from patronizing its tenants.

    1. How does calling the cops to enforce my property rights suddenly change what those rights are?

      And how does the act of leasing my property constrain my rights? Presumably it’s a lease…not a transfer of property…or rights.

      1. When a landowner leases property, he, she or it, is conveying an interest in the land to the tenant; not a fee simple absolute interest, but an interest nonetheless. The tenant gets to use and enjoy the property to the point of excluding the landlord.

        In the commercial setting, a business tenant has the right to expect that its landlord will not act so as to interfer with its business. Prohibitting a person from entering the mall on the basis of the content of his T-shirt might hurt some business tenants who Gailey may have or would patronize.

        1. Calling the cops triggers state action. By so doing, the mall seeks to socialize the cost of enforcing its property rights. It seeks my blessing when it calls the cops.

          Just as South Korea should not be seeking to transfer the cost of enforcing its rights to american taxpayers, the mall should not expect you and me to pick up the tab of enforcing its rights.

          Besides, what crybabies!

          1. How is that different from me helping to pick up the tab when you call the cops because someone broke into your home? Police protection is one of the primary functions of government that we agree on as a shared cost. Whether it’s to protect my business or my home shouldn’t make a difference.

            1. Police protection is one of the primary functions of government that we agree on as a shared cost.

              I don’t agree with such a socialist police “service” at all. Everyone should be able to purchase their own private protection service to enforce their rights, and not expect anyone else to pick up the tab for it.

              1. You already can purchase private security protection, and you also can refuse to pay taxes or adhere to police orders.

                Just use your private security to out-gun the cops, and you’re all set.

              2. prolefed: I dig it.

                However, as a positive constitutional issue, adjudication and enforcement of private property interests should not implicate, for instance, enumerated rights – otherwise every contract would be subject to the 1st amendment, for instance.

        2. Prohibitting a person from entering the mall on the basis of the content of his T-shirt might hurt some business tenants who Gailey may have or would patronize. But that argument works both ways…his presence may hurt businesses that he wouldn’t patronize, but that others, who object to his shirt, might. Regardless, the types of interests you presume are generally laid out in the lease. I suspect the mall owner knows whose interests are subordinated in the lease he/she/it wrote. As to the idea that engaging the police somehow transfers ‘rights’ to leasees that are not articulated in the lease, not so sure how one gets there.

        3. Libertymike, you seem to be confusing default tenancy rules with contractual rules. Contracts supersede the default – so you need to look at that first. Freedom to contract, right?

  5. Obliterate the “nabis” with a black marker and carry on. Any further restriction is based on hallucination.

  6. Obliterate the “nabis”

    That’s Hebrew for “the Prophet.”


    1. BOOM!!!!

    2. What is “can” Hebrew for?

      This is starting to make more sense. 😉

      1. kan = a pedestal

    3. Uh, no dude. The prophet = HaNavi

    4. Nabis = we will conquer

    5. It’s a Jew off!!!

      Is that racist?

      1. No money for you. My uncle is shadow president of the World Bank.

        1. Big deal, my mother keeps the secret ledgers.

          1. And the Protocols of Zion. She did a real good job of keeping that one secret…

            1. Your saba dropped the ball on that one. That was intentional.

              1. How dare you, my grandfather would never jeopardize our world domination!

                1. Yeled katan, there is much you do not know…..

                  I’ve said too much….

                  1. Zayin katan, shtok.

        2. Too late. Already poor.

          1. Exactly.

  7. After reading more about the case, I further stand by my position. The guy had actually patronized a business and had purchased a Denver Broncos cap.

    The fact that Jacob overlooks this is telling. Even anarcho-free enterpise-individualists like me recognize that not every assertion of a right can be absolute as such an assertion may mess with another’s liberties. That means the mall tenants have rights which means the patrons of such merchants have rights. It is not a two dimensional rights playing field.

    1. He didn’t purchase his right to free speech at that store – he bought a hat. The fact that you find a direct relationship between financial purchasing power and the right of free expression is also telling.

      Does that mean that George Soros can wear a dress and a flamethrower simply because he bought out The Gap?

      Look, I don’t like the fact that they got their panties in a bind over a shirt that clearly wasn’t obscene, but I’m not inclined to allow self or government appointed committees to make the decision on what speech is allowed on private property.

      Putting the decision on the property owner is the least coercive method available. If enough people don’t like the practice, then after a while there will be a new owner.

      1. You’re right, by banning a customer, the mall violated their tenants’ rights. But at common law it’s up to the tenants to sue. And there is probably clauses dealing with the mall owners maintaining and policing the mall in their contracts.

        1. They may have violated the tenants rights. Look at the contract. If there is no contract, or the the contract is silent as to the issue, then yes, the tenant should be able to choose what speech goes on in his store.

    2. Also, you seem to have a blind spot to the forces at work in retail. Believe me, the mall owner, if confronted by an upset anchor tenant because they lost a customer, will make sure that the mall policy doesn’t offend that anchor tenant’s customers.

  8. IMO, someone got upset by the riff on Obama’s “Yes We Can” zombie cheerleading mantra. Kinda like the cat that got the Secret Service stink-eye for having an anti-Obama bumper sticker, only less so.

  9. Westminster mall is such a decrepit piece of shit. Now I hate that mall even more.

  10. The family night thing sort of makes sense though since almost every female over age 15 had at least three kids running everywhere.

  11. I respectfully disagree with your analogy. Your living room is privately owned by you and not by a corporation. Corporations are immortals that by their very existence depend on government largess special privilege. As L. Neil Smith argues, with this government protection comes an easement which is the bill of rights.

    1. No, corporations are groups of people that are explicitly RECOGNIZED by the law, but they’re still just groups of people. And they don’t get any special priviliges, if anything they have to work under even harsher rules than individuals. Sure, they’re “immortal”, because they’re just groups of people, and what special privilege is that, in terms of rights? None.

    2. A corporation is a private entity, just like you and I are. Your reasoning is specious.

    3. Corporations are collections of individuals. There is a reason that corporations are, by law, required to name individuals who are legal representatives of said collections. You may sue a corporation, but a “corporation” has never taken the stand in a trial.

      This seems to be a common confusion, as illustrated in the panic over Citizens United. Viewed this way, it is much more difficult to argue that certain individuals retain more rights than others simply because of membership or non-membership to a certain group.

    4. The Bill of Rights is a constraint or “easement” upon government, not upon private individuals. This fact is not contingent upon whether some individuals are organized into something called a “corporation”.

      I’ve not read Smith, but if that’s what he argues, his credibility is dinged in my eyes already.

      Freedom of speech is why Gailey has the right to wear his shirt. Freedom of association is why the mall has the right to ask him to leave.

      As for the confusions resulting from questions of public property, subsidies etc. all of those contradictions find their root in the notion of “public property”, of which subsidies etc. are just muddying outgrowths. They do not stem from any of the individual rights involved.

  12. That disgusting pig should be put in jail for trying to brainwash our kids to kill themselves.

    1. Hey! That’s no way to talk about the commander-in-chief!

      1. Too bad the legalizer-in-chief was never caught for smoking marijuana.

        1. But if he was caught, how could he keep up the moronic WoD, Juanita? Conundrum?

          1. This is all moot. How would a teleprompter smoke weed anyway?

  13. What does “family night” at a mall mean?

    1. It means stay the hell away, unless eight trillion running screaming little rugrats is your idea of a good time.

      1. You don’t say?

  14. I see no difference between this and the Title 2 argument of the last week.

    In both cases, I side with the private property owners.

    1. dammit, studid left over joke name.

      1. This calls for another interwebz law.

        1. DeCloak’z Law: It only works if the person using the joke handle cops to the mistake.

          1. Which most do, present company included. Anyone second this?

            1. No. Your choice of name is insipid and uninspired. So now, when someone proposes a name on the internet and their proposal sucks, we can refer to it as Suckus Maximus-ing.

              1. You’re projecting again, Epi-spadias.

                1. Your accusations of projection are merely you projecting. Neener neener neener.

                  1. Well, I liked my suggestion. The tipster, Terry “Cloak of Anonymity” Micheal was the inspiration.

              2. I declare myself winner of this thread.

                That’s right, I’m back, and I’m winning threads again.

              1. Thank you! I find my suggestion poetic in it’s elegance.

                1. It’s more elegant when you use the right its, dumbass.

                  BOOM! Another thread win for joe. Yeah, that just happened.

          2. Also, it only works if the poster is trying to make a serious point, like robc above.

            1. Why else would they choose to decloak? If they are making a serious point under a joke handle, would it not lessen the veracity of said point?

  15. Aye Aye Aye, a little pot never hurt anyone now did it?


    1. Only millions of lives destroyed.

      1. Only a moron would believe such propaganda. ‘Millions’ of lives ‘destroyed’? What flapdoodle.

        1. You must be high.

    2. You should be arrested along with all libertarians for conspiracy to poison our children.

      1. Do you vaccinate your children, Juanita?

        1. No, vaccines cause autism, dumbass.

          1. Clearly you were vaccinated then.

            1. She said autism, not completely incapacitating mental retardation.

      2. So much for the First Amendment, eh, Juanita?

        Go fuck yourself.

        1. The Founding Fathers never had to save our kids from poisonous drugs. Nothing in the Constitution is more important than that.

  16. Wait, wait, wait a minute here. Hold on. Spencer Gifts is still around?

    1. Yeah, where do you think I got all my nifty black light posters and this can of bullshit repellant spray?

  17. I think I see blurry edges to this issue.

    Suppose there’s a public street corner where people have leafleted for years. The area has become a bit run down, and the gov’t, by proper procedures, sells to a private developer who presents a plan to build a shopping center. Maybe the developer gets a bargain, but there’s no reliable way to tell whether the sale was subsidized or at a market rate, because there’s not normally a market for such unique properties, and because the bidding for the property came with certain requirements about the development plan.

    So the streets are closed, and the mall is built. Would you say there should be assumed to be an easement of some sort for leafletters to resume leafletting at close to the same location, now within the confines of the mall and in its common space?

    Or would such an easement be based on the delusion of “public property”, i.e. gov’t-owned property rather than unowned space, inasmuch as it was just a gov’t-owned street corner previously, which nobody should assume a right to? Or, considering that there must always be ingress and egress allowed, is some kind of public use of such space always deserved to be provided?

    1. What’s a delusion is the concept of private property rights in America. All of these arguments about the rights of business owners are all well and good and I agree with them. But look at smoking laws. The government, and most people for that matter, don’t give a damn about business owner rights. They’ll run roughshod over them any chance they get.

      1. A right denied is still a right, not a delusion.

  18. I’ve discussed the liberal love of drugs here:…..-weed.html

  19. F the shopping mall in Aurora, wherever the hell that is….

  20. This isn’t rocket science, people.

    If the state spends money to acquire, develop, etc., on property then Constitutional rights should be respected there. While the property is still private property, the property owner’s receipt of public funds means the property owner is subject to restrictions based on the rights of the public.

    The state’s discharge of its duties with respect to private property, such as law enforcement, etc., does not impose any such obligation on the property owner.

    Tax deductions, tax credits, and the like are not the expenditure of state funds, Orwellian obfuscation notwithstanding, so sending less taxes to the state also does not impose any such obligations on the property owner.

    1. I think that, as libertarians, we often ignore the realities of implementation.

      So here’s something to think about. Say Mayor Fuckface doesn’t really care for the Bill of Rights. He devises a plan to spin off all streets, sidewalks, parks, and other public spaces to a corporate entity, PrivSpace. PrivSpace purchases all of this real estate legally, for “one dollar and other valuable consideration.”

      The city contracts with PrivSpace for the use of the public spaces. The public doesn’t notice the difference, though the Mayor’s friends and family become employees and board members of PrivSpace, Inc.

      PrivSpace, Inc. is a private entity, though it obviously receives tax funds in return for its services. The city claims that the ability to abandon and stop paying to maintain and patrol unused streets is more beneficial to the city than the ownership of those streets.

      If you buy that private land held by a corporation, even though it receives public funds, and the land is used as public space, then you must have no objection to the abrogation of any rights on the streets or sidewalks of the city. They’re private property.

      If you believe that citizens would retain their rights on this private property, as well as the right to pass unhindered, then we are talking about where the boundaries are. We can disagree on where they should be, but I believe that an absolutist position is unrealistic. There is such thing as property that straddles the line between private and public.

      1. Should have written: “If you buy that private land held by a corporation, even though it receives public funds, and the land is used as public space, is 100% as “private” as your living room, then…”

  21. Tax deductions, tax credits, and the like are not the expenditure of state funds

    Sure they are. There is no difference between the state sending somebody a $1000 check and telling somebody they owe $1000 less in taxes.

    Either way, the government is short $1000 that has to be made up for by somebody else.

  22. This is not difficult. Every parcel of property has a deed of record; on the deed is the name of the owner; unless the name of the owner is a city, state, county, or the federal government – or an agency thereof, the land is private property.

    Think of it this way. If I buy you a car for your birthday, and give it to you, I no longer have any rights to that car even though I purchased it.

    If it was purchased, all or in part, by tax dollars, it represents the implicit approval of the taxpayers to a plan for the government to purchase something for a private party, but does not make the thing purchased public property.

    1. Shorter version: never let your first principles interfere with your first principles.

    2. Alternate translation:

      Tyranny by government, or by the majority, are both okay, as long as you come up with a simple money-laundering scheme as cover. It’s akin to the “master plan” that made it okay to take Suzette Kelo’s house on the water and give the property to a developer…

  23. There was State action, i.e. the Aurora Police accosted the t-shirt wearer. Plus, I am so tired of libertarians equating publicly accessible malls with your “living room.” A home is a private place not accessible to the public, unlike a mall. Segregated lunch counters are not ok in a free society, segregated living rooms are.

    1. As a libertarian and a property owner (and I’ve been a landlord and a business owner, as well), I don’t understand the private property absolutism. It is unrealistic, and in the real world, there are shades of gray.

      A locked living room is 100% private. You can crap on the floor if you want. A private club with many members probably has to have a restroom, conform to more stringent fire and building codes for egress, etc. A privately-owned but open-to-the-public shopping mall also has to conform to non-discrimination laws, etc.

      Property owners do NOT have many rights over what people do on their property, when a tenant has a leasehold interest in it. Any agreement with someone, where I seek to make a profit by offering the use of my property, involves my relinquishing some rights over what happens on that property.

      If you want 100% control over your private property, fence it off, post it, lock it up. Otherwise, when you enter into some agreement with someone, explicit or implicit, to use your property so that you can benefit monetarily, you don’t retain all of the same rights.

      That’s just reality. Dogma doesn’t change it. One can be pro-private-property-rights, and still recognize that this is not darkest-dark and whitest-white, once property is open to the public, leased to a tenant, etc.

  24. A ruling was made in the Colorado Supreme Court regarding the privacy laws in the malls. The Aurora Mall and the Westminster Mall have many similar features including its operation of a police substation inside the mall.

    A city’s financial support of a shopping mall, including its operation of a police substation inside the mall, combined with the range of activities permitted in the mall, made it a latter-day public forum sufficient to trigger the Colorado Constitution’s free-speech clause, according to the state’s highest court. This clause prevented the owners of the mall from excluding citizens involved in nonviolent political speech. (Bock v. Westminster Mall Co.)

  25. Wow, im surprised that you would print this for all to see!! You realize just how stupid you seem, right? People should be allowed to be who they are when ever they want to. Wearing a shirt that supports marijuana makes the news, for real!! What about the shirts that show Jesus Christ sucking the devil off!! No kidding, cant remember the name of the metal band that gave us that one, but its out there. I remember being offended when i first saw that one, but quickly realized that hes allowed to think feel and promote any way he wants. Just because i dont agree with Jesus sucking off some demon, doesnt mean that i should prevent someone else from expressing who they are. No matter how offensive it is. Point blank this is a human rights issue!!!

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