First Amendment and tort law -- a twist

[Frank Cross]

It's an interesting hypothetical, but I doubt it's a First Amendment 
issue.  Consider the economic consequences

Option A:  Store may be liable absent security.  This means that the store 
would have to either hire more security or suffer risk of liability, some 
market penalty for content based on the government rule.

Option B:  Store may not be liable.  This means that patrons have an added 
risk.  Some who might want to be present and hear or buy the speech will 
decline to do so because of the risk.  This is functionally a market 
penalty, too.

So the real penalty wouldn't be the cost of security, it would be the 
degree to which the cost of security exceeds the benefit of providing 
security.  Which is a pretty uncertain amount.

But what about a duty to warn?  What if the law simply compels the store to 
provide a prominent warning of the risk of presence at the time of 
controversial speech?  A large "Beware" sign.  The costs of that would be 
pretty de minimis.  I think most stores would prefer the cost of added security.