Rand Carlson

Scene From a Mall

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.

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."

FlatIron is hardly alone in enforcing these guidelines. Representatives at Park Meadows, Cherry Creek Shopping Center and Southwest Plaza have the exact same procedures, and they confirm that they would have reacted to the Post's Lane precisely as did FlatIron's Beaudry. And Westminster Mall is even more restrictive, flat-out prohibiting media sorts unless they're covering a breaking news story at the center -- say, a fire at one of the stores. Interviews are forbidden even in the free-speech areas, "because that's not a freedom-of-speech issue," Anderson insists. "It's just an interview."

On the surface, this seems like unjustified paranoia. After all, it's tough to understand how allowing a TV station to film happy shoppers could open up the mall to future litigation. But as one who's been bitten twice, Anderson is now extremely shy. "We've given up thousands of dollars of free publicity with the media," he acknowledges, "but that's the price we have to pay. The media will just have to get their story somewhere else."

Lane's not sure that doing so would be worth the trouble. The piece that brought him to FlatIron Crossing ran the next day, November 23, without any of the quotes he collected before the security guard told him to stop, but he's hardly heartbroken: "It didn't turn out to be a very good approach," he says about the article.

If he wound up with the same assignment again, would he hesitate to go to a mall?

"I hope I won't be doing any more man-on-the-streets," he says. "But I still think they've got a bad policy."Bad sports: In the span of just two days last week, two Denver Post sportswriters found themselves being publicly vilified for the horrible sin of reporting something people involved in their stories didn't like.

First up was columnist Mark Kiszla, who penned a December 10 piece stating that University of Colorado football coach Gary Barnett had been seen meeting with a representative of Texas Christian University, a school with a high-profile coaching vacancy, just before receiving a contract extension from CU that hardly seemed warranted by the team's less-than-sterling 3-8 record this season. "Life's full of amazing little coincidences, isn't it?" Kiszla wrote. Barnett reacted to this by calling a press conference to denounce Kiszla's alleged attack on his integrity -- a tirade that the Rocky Mountain News and its sister paper, the Boulder Daily Camera, were more than happy to report on December 12. But along the way, Barnett admitted that he had met with someone tied to the TCU program -- a former coach -- and discussed the position (in which Barnett swore he wasn't interested).

That same day, the Post's Marc Spears dropped an even bigger bombshell, quoting James Posey of the struggling Denver Nuggets as saying that players upset at unspecified behavior by coach Dan Issel had skipped the previous day's practice and might dodge out of an upcoming game against the Miami Heat as well -- a threat widely interpreted as a vote of no-confidence in Issel. A furor resulted immediately thereafter, with Posey denying that he'd ever spoken to Spears about a potential boycott. Then, on December 13, the morning after the Heat had treated the Nuggets like fool's gold, Issel appeared on the Fan for his weekly radio show and went after Spears with a vengeance; he said that Spears (who did not return calls from Westword) had no credibility, and he accused him of having printed inaccuracies and "outright lies" in the past. Never mind, as Post sports editor Kevin Dale pointed out on the Fan a few minutes later, that Spears actually had Posey's disputed comments on tape and had played them for Posey and Nuggets veteran George McCloud to prove not only that the quotes were truthful, but also that he'd used them in context.

For Kiszla and Spears, however, being right is no guarantee against future negative repercussions. In sports reporting, the name of the game is access, and if Barnett and Issel decide to be petty, they can actually prevent these scribes from doing their jobs as well as they and their readers (not to mention their editors) would like. This kind of treatment is hardly beyond the realm of possibility. Denver is full of such tales; for instance, whispers about John Elway freezing out anyone in the media who dared criticize him have been circulating for years.

If a reporter writes tough stuff in this town, "he's risking being cut off," confirms Kiszla, who was caught off guard by Barnett's anger at him; he says some of his peers have been ribbing him for taking it too easy on CU's Barnett this year. He speculates that sports figures around here may react so violently to serious criticism because they are subjected to so little of it. "I don't think TV is strictly boosterism, by any means," he allows. "But having said that, I do think that when you have an environment where teams have formal working relationships with broadcast outlets, that changes the dynamic. It skews the line where someone may wonder, 'Am I covering this team as a journalist, or as a business partner?' And I do think that affects how teams see coverage."

Death penalty: In a December 13 article about convicted Oklahoma City bomber Timothy McVeigh, who's stopped making appeals and now says he'd like his execution to take place within the next few months, Denver Post reporter Andrew Guy Jr. sought comments from those who had originally decided McVeigh's fate. Along the way, he identified one of his interviewees, Marlene Wichael, as a juror when she was actually an alternate. But this oversight paled in comparison with another, much larger faux pas involving another woman who wasn't what she seemed to be, either.

You see, Guy cited numerous comments made by Ruth Meier, identified as a former McVeigh juror. But Guy's note that she hadn't "followed the case closely since the trial ended" took on a more ironic meaning when it was revealed that the Meier who'd served on the jury actually died in September 1999. No need to read the newspapers when you're in the Great Beyond.

How did Guy manage to speak to Meier without the use of an oracle or a Ouija board? By reaching a different Meier -- a person with the same name living in the same community (Arvada), but with no connection to the McVeigh case. Post editor Glenn Guzzo says that Guy got Meier's phone number from another reporter, and since the lady who answered identified herself as Ruth Meier, he didn't think to confirm with her that she was the Ruth Meier who had been on the McVeigh jury. Which she wasn't -- but she was more than happy to talk about it anyway.

This should serve as a warning to McVeigh. He's steering clear of interviews now -- but after that lethal injection, who knows?

Full court press: On December 15, a federal judge rejected a request by members of the management at the Salt Lake Tribune to stop the paper's sale to MediaNews, owned by Denver Post czar Dean "Dinky" Singleton. But this power struggle ("Blood Feud," December 14) isn't out of juice yet: The day after the decision, Tribune general manager Randy Frisch revealed in his publication that his legal team is seeking to stay the ruling until an appeal can be made to the 10th U.S. Circuit Court of Appeals. At present, however, it looks like another victory for the Dinkster. Big fat surprise.

Another media dispute, another hearing: On December 18, Emmis Communications filed a lawsuit in federal court against Clear Channel Communications over the latter's plan to debut the morning radio show starring Jamie White and Danny Bonaduce on January 2 on KTCL (which has been running promos to that effect for several days). The rub is over what Emmis sees as a non-compete clause in the White-Bonaduce contract that prevents Clear Channel, which obtained the show in its merger with AMFM earlier this year, from debuting it prior to July 1, 2001. Negotiations on a compromise fell through when Clear Channel brought in its lawyers, who determined that the company could put the program on the air as soon as a ninety-day cancellation notice expired at year's end. Emmis clearly disagrees: On December 28 the firm will ask a judge to issue a restraining order preventing the show from starting until after the matter is heard by an arbitrator.

Joe Schwartz, general manager of Alice, the previous home of Jamie and Danny, declines to talk about the pending litigation; on the record, he'll say only that "we feel strongly about defending our position" regarding the broadcast. But Clear Channel types, reached just prior to the filing, are more talkative. Vice president and general manager Don Howe doesn't want to be seen as attacking all non-compete clauses, which, after all, his stations use, too. But he says, "The wording of this particular contract is certainly unique and almost illogical in places -- and having evaluated it, we feel that the non-compete does not have legs." Mike O'Connor, Clear Channel's director of FM programming, goes even further, referring to a lawsuit as "a best-case scenario for us, because that would generate the kind of publicity that money couldn't buy. We don't have any marketing money for the show right now, and that would really help us let people know where to find it. So bring it on, Joe."

Who says wishes don't come true?


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