Handen v. People

526 P.2d 1310, 186 Colo. 284, 88 L.R.R.M. (BNA) 2203, 1974 Colo. LEXIS 738
CourtSupreme Court of Colorado
DecidedOctober 7, 1974
DocketNo. C-459
StatusPublished

This text of 526 P.2d 1310 (Handen v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Handen v. People, 526 P.2d 1310, 186 Colo. 284, 88 L.R.R.M. (BNA) 2203, 1974 Colo. LEXIS 738 (Colo. 1974).

Opinions

MR. CHIEF JUSTICE PRINGLE

delivered the opinion of the Court.

On March 24, 1973, Petitioners were arrested for distributing handbills and displaying picket signs in front of the Safeway store at the Bon Shopping Center in Colorado Springs. Their purpose was to discourage shoppers from shopping at the Safeway grocery store in the shopping center because Safeway marketed non-AFL-CIO union lettuce. Charged with violating City Ordinance 8-3 6,1 they were convicted by a jury in the Colorado Springs Municipal Court. The District Court of El Paso County affirmed the conviction, rejecting Petitioners’ argument that the ordinance, as applied to their activity, worked a deprivation of their rights as protected by the First and Fourteenth Amendments to the United States Constitution. We granted a writ of certiorari to consider whether Petitioners’ activities on private property were protected by the First and Fourteenth Amendments and, if so, whether the convictions can stand. For the reasons [287]*287set forth herein, we reverse the judgment of the District Court.

The central question to be determined in this case is whether a conviction for violation of the local ordinance can be predicated upon peaceful picketing and handbill distribution in front of a business enterprise located within a shopping center when the nature and content of the protest directly relates to the function of the enterprise being picketed, and no other reasonable opportunities are available for conveying the message to the intended audience. Both parties agree that the standards articulated in Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 20 L.Ed.2d 603, 88 S.Ct. 1601 (1968), and Lloyd Corp. v. Tanner, 407 U.S. 551, 33 L.Ed.2d 131, 92 S.Ct. 2219 (1972), govern the outcome of this case, yet disagree on the proper application of these standards to the facts.

Read together and further clarified by Central Hardware Co. v. NLRB, 407 U.S. 539, 33 L.Ed.2d 122, 92 S.Ct. 2238 (1972), these cases set forth a three pronged test to determine when private property may “for First Amendment purposes, be treated as though it were publicly held.” Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. at 316. In Logan Valley, the Court relied heavily on Marsh v. Alabama, 326 U.S. 501, 90 L.Ed. 265, 66 S.Ct. 276 (1946), in determining that the Logan Valley Shopping Plaza was the functionahequivalent of a community business block, and was therefore imbued with public attributes for First Amendment purposes. This analysis was refined in Lloyd Corp. where the Court attached two additional criteria: the message sought to be conveyed must be directly related to the purpose to which the property is being put; there must be no other reasonable opportunities available upon public property for conveying the message to the intended audience.

I.

Petitioners argue that the Bon Shopping Center — in both design and function, providing a full range of goods and services — satisfies the first criterion: that it is the functional [288]*288equivalent of a community business block. The district court rejected this assertion stating that “the area in which the appellants were arrested was private property and that consent for defendants to use the property for advertising their cause had been withdrawn.” Thus, the district court concluded that the property had not “assumed the functional attributes of public property devoted to public use to any degree.” We disagree.

It is readily conceded that the Bon Shopping Center property and the Safeway property are privately owned, and the Petitioners’ activity upon that property was contrary to the wishes of the management. But that concession alone does not dispose of the First and Fourteenth Amendment problems raised there. In Logan Valley, supra, where the shopping center property upon which the picketed store was located was privately owned, the Supreme Court viewed the shopping center as a community business block and held that under such circumstances “the state may not delegate the power through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.” 391 U.S. at 319. In arriving at its conclusion, the Supreme Court described the Logan Valley Plaza as follows:

“Inside the mall were situated, at the time of trial, two substantial commercial enterprises with numerous others soon to follow. Immediately adjacent to the mall are two roads, one of which is a heavily traveled state highway and from both of which lead entrances directly into the mall. Adjoining the buildings in the middle of the mall are sidewalks for the use of pedestrians going to and from their cars and from building to building. In the parking areas, roadways for the use of vehicular traffic entering and leaving the mall are clearly marked out. The general public has unrestricted access to mall property.” Id. at 318 (footnote omitted).

The physical setting in the present case is strikingly similar. [289]*289Situated adjacent to heavily traveled Wahsatch Avenue, the Bon Shopping Center houses eighteen independent stores offering a wide variety of goods and services, much as any ordinary business block.2 A paved, privately owned parking area surrounds the stores, while walkways also privately owned, connect the various stores allowing shoppers to stroll at their leisure, much as with a typical municipal sidewalk. The intent of the owners of the property was obviously that the shopping center, in both form and function, displace any need one might have to go into downtown areas.

Clearly, the Bon operation is the equivalent of a community business district. Seeking to reconcile the shopping center phenomenon with First Amendment demands, the Supreme Court cogently stated in Logan Valley:

“The economic development of the United States in the last 20 years reinforces our opinion of the correctness of the approach taken in Marsh. The large-scale movement of this country’s population from the cities to the suburbs has been accompanied by the advent of the suburban shopping center, typically a cluster of individual retail units on a single large privately owned tract. It has been estimated that by the end of 1966 there were between 10,000 and 11,000 shopping centers in the United States and Canada, accounting for approximately 37% of the total retail sales in those two countries.
“These figures illustrate the substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies that a contrary decision here would have. Business enterprises located in downtown areas would be subject to on-the-spot public criticism of their practices, but businesses situated in the suburbs could largely immunize themselves from similar

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Related

Cox v. New Hampshire
312 U.S. 569 (Supreme Court, 1941)
Marsh v. Alabama
326 U.S. 501 (Supreme Court, 1946)
Poulos v. New Hampshire
345 U.S. 395 (Supreme Court, 1953)
Adderley v. Florida
385 U.S. 39 (Supreme Court, 1966)
Lloyd Corp. v. Tanner
407 U.S. 551 (Supreme Court, 1972)
Klutts v. Parker
409 P.2d 275 (Supreme Court of Colorado, 1965)
Gross v. Appelgren
467 P.2d 789 (Supreme Court of Colorado, 1970)

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Bluebook (online)
526 P.2d 1310, 186 Colo. 284, 88 L.R.R.M. (BNA) 2203, 1974 Colo. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/handen-v-people-colo-1974.