Scene From a Mall

Shopping-center execs love getting attention in the media -- as long as they call the shots.

During the now blessedly concluded period between election day and Al Gore's belated admission last week that he won't be joyriding in Air Force One anytime soon, it seemed as if every journalist in the country was yammering about the ridiculous spectacle. So imagine the confusion of the Denver Post's George Lane, perhaps the only member of the American media who was actually prevented from discussing the topic.

The incident in question took place at FlatIron Crossing, the metro area's spiffiest new shopping center, the day before Thanksgiving. Lane, who's been with the Post for over thirty years (an impressive run by any measure), was one of several reporters ordered to pigeonhole folks at assorted locations and ask their opinions about Al, George W. Bush and the mess in Florida: the prototypical man-on-the-street method.

But after chatting with just three individuals at the suburban mall, Lane was approached by a security guard "who informed me that I could not conduct interviews without permission from mall executives," he says. He was escorted to the center's offices, where Janet Beaudry, the mall's senior marketing director, told him that he was on private property and would therefore need to abide by the FlatIron rules. These tenets, she explained, require reporters to get permission from a FlatIron official before covering a story and limit reporting to shopping-related themes -- e.g., "What are you buying loved ones this Christmas?" Since the election didn't fit that definition, he would have to leave.

Rand Carlson

A number of those to whom Lane recounted this story suspected that he was targeted because he's African-American. But although he allows that he stood out at FlatIron, he doubts that he was a victim of racism -- and both Beaudry and mall general manager Hugh Crawford flatly deny that Lane's race was a factor. At the same time, he doesn't believe he was doing anything wrong. "I later learned that properties such as this one are considered to be public areas," he says, "and I suppose had I called our attorney at that particular time, I could have raised a stink about it."

Perhaps -- but the question is an awfully sticky one, since a mall's status as either a public gathering place or private property is very much in dispute from a legal standpoint.

In 1980's PruneYard Shopping Center v. Robins, the U.S. Supreme Court upheld a ruling by the California Supreme Court allowing a group to gather signatures in the mall; the court asserted that the state wasn't 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."

Subsequently, this logic was applied to a pair of similar cases in Colorado, both involving Westminster Mall. The first dates back to 1985, when one Nelson Bock, who was affiliated with an organization, Pledge of Resistance, that opposed U.S. actions in Nicaragua, asked to distribute fliers in the mall. After Westminster management rejected his request, he took the matter first to district court and later to the state appeals court. Judges at these levels turned thumbs-down on his complaint, but the Colorado Supreme Court, which dealt with the issue in 1991, was friendlier. In a 4-3 decision, the court held that since Westminster Mall had allowed its property to be used by other nonprofit groups in the past, including the Boy Scouts and the Salvation Army, it would be practicing discrimination if it didn't afford Bock the same privilege. But the justices, in an echo of the PruneYard decision, gave center officials some flexibility in developing what are known in the mall industry as time, manner and place regulations -- establishing locations where such activities could take place, and allowing some reasonable leeway concerning scheduling.

To that end, says Kenton Anderson, who has been Westminster Mall's general manager since 1984, the center created three "free-speech" areas and set up application measures for people who wanted to use them. But despite these policies, another challenge arose. In 1997, Spencer Cowen and Aaron Robertson, two Arvada teenagers, took the mall to court when they were prevented from buttonholing shoppers to preach the glories of Christianity outside the free-speech zones; they complained that the spot to which they were sent was too small and limiting. The case went to Jefferson County District Court, which judged some of Westminster Mall's rules to be overly restrictive. But the court agreed that the mall had the right to limit the areas in which folks like Cowen and Robertson could do their things, and this past August, the Colorado Court of Appeals seconded that emotion.

Given these conclusions, it makes perfect sense that writers Jeffrey H. Newman and James M. Hirschorn identified Colorado as one of six "access states" (the others are California, New Jersey, Massachusetts, Oregon and Washington) in "Right of Access: Managing Free Expression at Shopping Centers: A Landlord's Practical Guide," a primer about free-speech issues printed by Leader Publications in September. But Hugh Crawford, general manager at FlatIron Crossing, insists that it's not that simple. According to Crawford, FlatIron's attorneys regard the Westminster ruling to be "site specific," meaning that it's not applicable to other malls. And since FlatIron has never allowed any nonprofit groups to utilize its facilities, it can't be accused of favoring one over another. "We are private property, and we work very hard to maintain that status," Crawford points out. "We are here for the sole purpose of generating traffic that can drive sales in our retail stores, and we do not allow any activity or media effort that doesn't enhance that goal. We are not a forum for the public, and we cannot allow the public to use our private property for their cause. Because our cause is sales."

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