Freedom of Religion

A Colorado court ruled that Christian witnessing in a shopping mall was a form of free speech that was protected by the state constitution, but it could be limited by reasonable restrictions.

Church Law and Tax 2002-09-01

Freedom of Religion

* A Colorado court ruled that Christian witnessing in a shopping mall was a form of free speech that was protected by the state constitution, but it could be limited by reasonable restrictions to further public safety and order. Two Christian men (the "plaintiffs") engaged in religious "witnessing" in a shopping mall. They approached strangers to converse with them, and if a stranger responded positively, they would hand him or her a pamphlet. They normally contacted patrons who were about their age (young adults). The largest concentration of young adults at the mall was found near the center court, the Disney Store, the game arcade, and the movie theaters. On several occasions, security personnel asked the plaintiffs to leave because they had not applied for permission to engage in their activities at the mall. Other times, security personnel advised the 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 store rather than in the common areas. The plaintiffs asked a court to issue an order prohibiting the mall from restricting their rights to engage in witnessing activities at the mall. A trial court agreed that some of the mall’s restrictions violated the state constitution’s guaranty of religious freedom, including the following: (1) a two-month "blackout" period during particularly busy times of the year; (2) an insurance requirement that an applicant obtain a $1 million general liability insurance policy as a condition of approval; and (3) a regulation prohibiting more than three people from using the designated free speech areas at any time. The court found other regulations to be reasonable, including the regulation designating certain free speech areas in the mall and restricting the plaintiffs’ activities to those areas. The plaintiffs appealed this latter ruling.

The appeals court began its opinion by quoting the state constitution: "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 court noted that this provision "provides greater protection for freedom of speech activities than does the first amendment." The court referred to a previous ruling in which the state supreme court found that shopping malls are free to impose restrictions on the time, place, and manner of speech, provided the restrictions are "content neutral and narrowly tailored, addressed a significant interest, and left open ample alternative channels of communication." The court concluded that these requirements were met in this case. While the plaintiffs’ witnessing activities were restricted to a specific area of the mall, the court found that "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."

Application. This case illustrates three important points regarding religious witnessing in shopping malls. (1) The court noted that the United States Supreme Court has ruled 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 (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. Robbins, 447 U.S. 74 (1980). (2) Some state constitutions contain broad protections of free speech which may apply to private property including shopping malls. (3) Even if there is a broad right under state law to engage in free speech, this right may be limited by reasonable restrictions in order to further public safety and order. Robertson v. Westminster Mall Company, 43 P.3d 622 (Colo. App. 2001).

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