On December 20, 2014, the Saturday before Christmas, between 2,000 and 3,000 Black Lives Matter demonstrators crammed the Mall of America rotunda to protest the Ferguson, Missouri and New York grand jury decisions not to indict the police officers involved in the two incidents.
The conversation has now moved from the essence of the Black Lives Matters demonstration to whether the organizers of the MOA demonstration should be charged for trespass, among other things, stemming from their demonstration.
At the heart of this debate is whether the United States Constitution’s First Amendment or whether Minnesota’s Constitution provides free speech protections to speech and expressions that occur in privately-owned shopping centers such as the Mall of America. There are far reaching consequences on how this question is resolved. Before plunging into the analysis of this debate, we should review the facts that have brought us to where we are today.
December 9th, 2014 Black Lives Matter creates a Facebook event to be held in the rotunda at the Mall of America 2:00 PM, Saturday, December 20th.
December 12th, 2014 The Mall of America’s Management Team’ sent letters via courier to the organizers of the scheduled Black Lives Matter MOA political demonstration. The letters state that (1) the MOA is a private commercial retail center; (2) the MOA “prohibits all forms of protest, demonstration, and public debate” at the mall to ensure “the safety and experience of [their] customers, tenants and employees…”; and (3) “a protest is a violation of [the MOA’s] policies and would subject” the Black Lives Matter group to removal or potential arrest. Finally, the letter states that the Mall of America had taken a proactive step to arrange a location to stage Black Lives Matter demonstration on public property immediately adjacent to the Mall of America.
December 17th, 2014 Black Lives Matter posts the letter from the Mall of America and the organizers’ response on Facebook. Black Lives Matter viewed the MOA’s actions to prohibit the organizers’ event as intimidation, and organizers planned to proceed forward with the demonstration at the Mall of America rotunda. Black Lives Matter posts on Facebook that it has established a bail fund “to support any [Black Lives Matter] arrestees”.
December 20th, 2014 A Black Lives Matter crowd of 2,000 to 3,000 began assembling in the Mall of America rotunda just before 2 PM. After about 30 minutes of chants and the song “I Can’t Breathe,” the Mall of America warned the demonstrators that they were trespassing and in danger of arrest posting on the rotunda’s screen:
“THIS IS A FINAL WARNING. THIS DEMONSTRATION IS IN CLEAR VIOLATION OF MALL OF AMERICA POLICY. ALL PARTICIPANTS MUST DISPERSE IMMEDIATELY. THOSE WHO CONTINUE TO DEMONSTRATE ARE SUBJECT TO ARREST.”
Shortly after the warning, Bloomington Police Officers in riot gear cleared a majority of the Black Lives Matter demonstrators from the rotunda area and attempted to usher the demonstrators from the MOA.
Hundreds of demonstrators moved to occupy two levels of the Mall of America adjacent to the rotunda. The demonstrators staged several die-ins in front of stores causing a number of the stores to shut down for a time.
The Police arrested 25 demonstrators for trespassing.
Just before 3 PM a text from BlackLivesMpls was sent stating “We shut it down y’all…Great work!” Later that afternoon, the Black Lives Matter Facebook page stated “[t]housands of people stood together, refused to be intimidated, and disrupted business as usual on the busiest shopping day of the year at the biggest mall in the country.” The organizers later posted on Facebook that “[t]he police and security shut down the ENTIRE mall for hours – amazing work everyone!”
January 14th, 2015 Bloomington City Police announced charges against 10 Black Lives Matter protestors for unlawful assembly, public nuisance, trespassing and disorderly conduct. These charges are in addition to the charges against 25 demonstrators who were arrested for trespassing.
Can the Black Lives Matter demonstrators rely on the First Amendment of the US Constitution freedom of speech protection for their protest at the Mall of America?
Protesting the Vietnam Draft
In 1972 the United States Supreme Court considered a case concerning the right of a privately owned shopping center to prohibit the distribution of literature on the shopping center property.
Lloyd Corporation was the owner of a retail shopping mall in Portland, Oregon located on approximately 20 acres of land. The mall includes 60 commercial tenants including small shops and several major department stores. At a few places within the Center small signs are embedded in the sidewalk which state:
“NOTICE – Areas in Lloyd Center Used By The Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May Be Revoked At Any Time. Lloyd Corporation, Ltd.”
On November 14, 1968, a group of five individuals from the “Resistance Community” distributed informational materials for a meeting to protest the draft and Vietnam War. The distribution was quiet and orderly and there was no littering.
After a complaint by one customer, Lloyd Corporation’s security guards informed the group that they were trespassing and would be arrested unless they stopped distributing the information at the Mall. The guards suggested that the Resistance group distribute their information on the public streets and sidewalks adjacent to the Mall. The group left and brought a lawsuit in order to allow them to distribute their information inside the parameter of the mall.
Sound familiar?
In its opinion, the US Supreme Court recognized that the limited scope of a privately owned shopping center’s invitation to the public is to “bring potential shoppers to the Center, to create a favorable impression, and to generate good will.” There is not an open-ended invitation to the public to use the Center for any and all purposes. A trespasser or an uninvited guest is not allowed to exercise general rights of free speech on privately owned property. A group or individual participating in a demonstration or is not otherwise visiting the shopping mall for the purpose of shopping or working, would be classified as a trespasser or an uninvited guest.
Is the Black Lives Matter Demonstration at the MOA Protected United the First Amendment of the US Constitution?
Similar to the Lloyd Corporation shopping mall, the Mall of America is privately owned. The MOA’s invitation to the public is to invite potential shoppers to the Mall, not protestors or demonstrations that would harm the favorable impression of the Mall and harm its good will.
The Mall of America property is not somehow converted from private to public for free speech purposes just because it is openly accessible to the public. Black Lives Matter is unable to claim that their demonstration at the Mall of America was protected Free Speech under the United States First Amendment to the Constitution.
But analysis does not end there.
Can a State Extend Free Speech Rights Afforded to Individuals to Privately Owned Shopping Mall Property?
The United States Supreme Court took up the issue as to whether a state can prohibit private property owners from preventing free speech on their property in a case that involved a group of high school students who were in opposition to a United Nations resolution against “Zionism.” The group set up a card table in a corner of a California Shopping Mall’s courtyard to distribute pamphlets and to ask passersby shoppers to sign a petition in support of the group’s opposition.
Soon after they had set up the table, a security guard approached the group to suggest that they move to the public sidewalk outside the PruneYard. The group left and thereafter brought a lawsuit claiming their right to free speech under California’s State Constitution was violated.
In the Court’s decision, the Court considered whether a State’s extension of free speech rights to a privately owned shopping mall property constituted a “governmental taking” of the private property. A State may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation.
While the Court concluded California’s Constitution allowing citizens to exercise free speech rights on private shopping center property did result in a limited “taking” of property rights, the Court determined that “not every destruction or injury to property by governmental action is a ‘taking’ in the constitutional sense”. Rather, the court must determine whether the state law’s application “forc[es] some people to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” This requires inquiry into such factors such as (1) the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. When a state law goes too far it will be recognized as a taking.
The Supreme Court finally concluded that California’s State Constitution permitting the group to exercise its state-protected rights of freedom of speech and preventing the shopping mall from prohibiting this sort of activity did not unreasonably impair the value or use of its property as a shopping mall and, therefore, did not constitute a constitutional taking.
How Does this Apply to Minnesota?
In 1999, the Minnesota Supreme Court took up this question in State of Minnesota v. Wicklund. A group of about ten people stood in front of Macy’s at the Mall of America carrying placards illustrating cruel treatment of animals and distributing leaflets urging shoppers to boycott Macy’s. The protestors were warned several times that they were on private property and that they would be arrested if they did not leave. Four protestors ignored the warnings and were arrested.
Following the United States Supreme Court, the Minnesota Supreme Court declined to extend constitutional protections of citizens to free speech on private property such as the Mall of America. As part of the Minnesota Supreme Court’s determination not to extend free speech to privately owned property, it considered whether the Mall of America’s significant public financing should be a factor resulting in the MOA being considered “public” and, therefore, triggering the state’s constitutional protections against state action.
Prior to its consideration of the Wicklund case, the Minnesota Supreme Court had determined that “if the conduct that is formally private has become so entwined with governmental character as to become subject to the constitutional limitations placed upon state action,” constitutional restrictions may be applied against private entities. More than just state funds or state regulations are required to place constitutional limitations on a private entity. The Court must be convinced that the “power, property, and prestige” of the state has been placed behind the private conduct to create a state action.[xi] Relying on the fact that the MOA (1) is managed by a private company; (2) pays for its public services such as police, fire and security just as any other private business; (3) hires and is patrolled by its own private 150-person security force; and (4) leases space to the Federal Government for a post office, the Minnesota Supreme Court concluded that there was no evidence of the “power, property and prestige” of the State of Minnesota or City of Bloomington with the actions of the MOA.
Both the United State Supreme Court as well as the Minnesota Supreme Court have continued to uphold the rights of private property owners over that of an individual’s right to free speech. Accordingly, the Black Lives Matter protestors at the Mall of America are not afforded constitutional protection under either the Minnesota State Constitution or United States Constitution. It is clear that their demonstration constituted a criminal trespass on private property.
This is not intended to be an opinion piece. It is predicated on points of law, thoroughly researched and presented in what we aspire to be in a fair, even manner. We hope it provokes thought and dialog, and serves to remind us how law truly underpins so much of our daily lives.
[1]https://www.facebook.com/events/538449759625878/?ref=3&ref_newsfeed_story_type=regular
[2]https://www.facebook.com/BlackLivesMatterMinneapolis/photos/a.840301319346996.1073741830.838424259534702/844958018881326/?type=1&theater
[3]http://www.payitsquare.com/collect-page/56349
[4]http://www.startribune.com/printarticle/?id=286443781
[5]http://www.myfoxtwincities.com/story/27740586/wired-calls-moa-anti-protest-sign-one-of-the-most-dystopian-symbols-of-2014
[6]http://www.startribune.com/printarticle/?id=286443781
[7]http://www.startribune.com/local/blogs/288560761.html
[8]https://www.facebook.com/BlackLivesMatterMinneapolis/posts/846406965403098:0
[9]http://www.startribune.com/printarticle/?id=286443781
[10]http://www.startribune.com/local/blogs/288560761.html
[11] 92 S.Ct. 2219 (1972)
[12] As an interesting side note, Supreme Court Justice Powell, in the Supreme Court’s 1972 decision, classifies this shopping mall as “a relatively new concept in shopping center design. The stores are all located within a single large, multi-level building complex sometimes referred to as the ‘Mall.’” I wonder what he would think of the Mall of America?
[13] 92 S. Ct. 2219
[14] State v. Wicklund, 589 NW2d 793, 798 (1999)
[15] PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980)
[16] Id. citing Armstrong v. United States, 80 S.Ct. 1563, 1569.
[17] Id. citing Kaiser Aetna v. United States, 100 S.Ct 383, 390 (1979)
[18] Id. citing Pennsylvania Coal Co. v. Mahon, 43 S.Ct 158, 160 (1922)
[19] State v. Wicklund 589 N.W.2d 793, 795 (1999)
[1] Id. citing Brennan v. Minneapolis Society for the Blind, Inc., 282 NW2d 515, 524 (1979)
[1] Id. at 801