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.]
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