The Colorado Constitution provides for free speech on a state level. The Colorado version differs its federal counterpart. Probably the best way to illustrate the differences is to perform a side-by-side comparison.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— U.S. Const. amend. 1
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; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.
— Colo. Const. art. 2, § 10 – Freedom of Speech and Press.
In addition to the listed protections in either constitutions courts have also implied there is a ‘right to know’ and ‘right to access’ government documents.
A long line of cases in the Colorado courts have declared the free speech protections to be more broad than those provided in the First Amendment to the United States Constitution. However, the cases tend to be found in violation of the First Amendment to the United States Constitution, so the more broad state protections are need not applied. Lewis v. Colorado Rockies Baseball Club, 941 P.2d 266, 271-72 (Colo. 1995) (acknowledging the potential greater protections under the Colorado Constitution, but finding a violation under the First Amendment of the Constitution making a state constitutional analysis unnecessary); See also Holliday v. Reg’l Transp. Dist., 43 P.3d 676, 681 (Colo. App. 2001) (noting “that article II, § 10 of the Colorado Constitution provides greater protection for freedom of speech than does the First Amendment”); People v. Berger, 521 P.2d 1244, 1245-46 (Colo. 1974); People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 356 (Colo. 1985); People v. Berger, 521 P.2d 1244 (1974).
There are only a few cases that provide any guidance as to what the greater protections are provided by the state of Colorado. Two main conditions must arise before a court will consider deciding a case on state free speech grounds: 1. A violation of state free speech rights must have been claimed as well as federal rights in the initial lawsuit; and 2. The court must have found insufficient grounds under the United States Constitution.
Colorado Free Speech Applied
“The object of article II, section 10 is to ‘guard the press against the trammels of political power, and secure to the whole people a full and free discussion of public affairs.'” People v. Ford, 773 P.2d 1059, 1066 (Colo. 1989) (quoting Cooper v. People, 22 P. 790, 798 (Colo. 1889)).
Unfortunately there are few cases that provide some guidance as to the increased state protections.
Clause 2: “[E]very person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.”
Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991) (noting “we have highlighted the second clause of Article II, Section 10 of our own constitution, which is an affirmative acknowledgement of the liberty of speech, and therefore of greater scope than that guaranteed by the First Amendment”). The facts of Bock are an unincorporated political group wished to distribute pamphlets in the common areas of Westminster Mall. The Mall declined the request. The common areas of the Mall are open to the public, without charge, during Mall operating hours. The Mall has a “no solicitation” policy applied to the common areas which it strictly enforces against controversial or political activities. The Mall relied on the city’s trespass ordinance to enforce its policy. Footnote four notes both parties agreed the second clause of Colo. Const. art. 2, § 10, is the relevant clause.
“It is possible for interests, otherwise private, to bear such a close relationship with governmental entities or public monies that such interests are affected with a public interest. Moreover, with or without the benefit of that relationship, a private project may develop and operate in a manner such that it performs a virtual public function.” Bock v. Westminster Mall Co., 819 P.2d 55, 60 (Colo. 1991). The court reasons in this case that since the Mall receives/received public benefit then the broader protections of the state free speech kick-in. The City funded the Mall to make $2 million dollars of surrounding infrastructure improvements (roads, drainage systems, etc). There is a municipal police substation within the mall, rent free, and concluded as a municipal service. Thus the police are involved in enforcing the no solicitation policy. And there are military recruiting centers in the mall.
Basically the court expanding the zone of free speech. Under traditional First Amendment analysis this likely could be considered a private forum because it is owned and run by a private company.
However, under the Colorado Constitution, the Court treated it as a public forum.