Kafer: Colorado legislature has a bipartisan opportunity to protect free speech

As one of nearly 500 volunteers who collected signatures over the past two weeks, I had the experience of asking perfect strangers for their John Hancock. It’s not as intimidating as it sounds; most happily took the pen and signed. Democrats and Republicans, unaffiliated voters, lifelong prolifers and prochoicers who want limits, suburbanites, urbanites, and small town denizens signed the petition to place an initiative on the ballot to prohibit abortion after 22 weeks gestation except if needed to save the life of the mother. On Friday, proponents of Initiative 120 turned into the Secretary of State five times the number of additional signatures needed for
the initiative to qualify for the November ballot.

The positive experience of collecting signatures notwithstanding, volunteers did run into unanticipated difficulties. The pandemic and related social distancing measures didn’t make signature gathering easy. Worse, some signature gatherers were harassed while engaging in this legal and constitutionally-protected activity. I’m not talking about the occasional nasty comment hurled at volunteers, but the act of denying volunteers space to gather signatures.

In addition to public areas such as sidewalks and parks, volunteers have the right to solicit petition signatures in common areas on commercial property subject to time, place, and manner restrictions under the Colorado Supreme Court precedent Bock v Westminster Mall Co. The right to petition the government and the right to free speech are protected by the First Amendment to the U.S. Constitution. Article II, Section 10 of the Colorado Constitution also protects free speech and “provides greater protection of free speech than does the First Amendment” according to the Colorado Supreme Court.

In Bock v Westminster Mall Co, volunteers with The Pledge of Resistance, a group opposing U.S. military involvement in Central America, were soliciting signatures from people willing to commit civil disobedience should the U.S. escalate military action in Nicaragua or El Salvador. It was 1985, the height of the Cold War, and the mall denied them permission to pass out literature and solicit pledge signatures. The American Civil Liberties Union defended their rights before the courts and ultimately won.

The Colorado Supreme Court ruled that the Pledge of Resistance volunteers had a right to conduct free speech activities in the mall for two reasons. Spaces outside of businesses have become the new town center where people congregate. Indoor and strip malls provide space for a variety of non-commercial activities such as Girl Scout cookie sales, Salvation Army bell ringers, voter registration efforts, and other activities. They have become public spaces. Secondly, many malls, big box stores, and grocery stores have some public involvement. They
lease their parking lots from a municipality or have some preferential tax, finance, or security arrangement with the city. That public-private partnership comes with a responsibility to the public. “Where governmental entities or public monies are shown by the facts to subsidize, approve of, or encourage private interests and such private interests happen also to restrict the liberty to speak and to dissent, this court may find that such private restrictions run afoul of the protective scope of Article II, Section 10.,” wrote Justice Mullarkey in the decision.

Thus petitioners on such property can be asked to locate to a reasonable area but they cannot be told to leave. Unfortunately, some store managers may be unaware of or confused about this important legal precedent. Others may be willing to discriminate based on their own political leanings or pressure from outside groups. During the brief legislative session, lawmakers have an opportunity to ensure this doesn’t happen again. They should codify the court’s decision in Bock v Westminster Mall Co in statute to ensure space for peaceful free speech activities. Businesses that enjoy public benefits (e.g., tax finance, security, or lease agreements) and/or provide a common space for other free speech activities cannot deny signature gathering on the property, subject to reasonable time, manner, and place restrictions.

The right to free speech and to peacefully gather signatures for a ballot initiative or a pledge benefits all Americans regardless of ideology or political persuasion.

Krista L. Kafer is a weekly Denver Post columnist. Follow her on Twitter: @kristakafer

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