Imagine organizing a protest, deep in the desert. Beautiful, natural surroundings, but not another person around for miles. Does a protest with no one to hear it make a sound? Well yeah, but it also doesn’t do much good. The point of organizing a protest, exercising one’s right of association, freedom of speech, to seek redress, is to get your point across to someone.
And that’s where the change in how Americans behave, and how our public infrastructure has changed comes into play. We used to be a nation of small towns, with village squares, that would be the center of public life. Been to a village square lately? If it even exists, it’s empty.
The reason there’s nobody there is because they’ve all gone to the mall. Like the Mall of America in Bloomington, Minnesota, which is why a big protest was organized there before last Christmas. And when the mall got wind of it, and Bloomington officials learned of it, things did not go well for the protestors.
The Mall of America and Bloomington have a “symbiotic” relationship that leaves the mall operating as an arm of city government, Black Lives Matter protesters say. And that means demonstrators should have the right to protest at the mall just as they would on the steps of City Hall.
At first blush, this might seem as if it’s just an unfortunate reflection of private ownership, which is what the Minnesota Supreme Court held in State v. Wicklund.
The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.
Nor does property lose its private character merely because the public is generally invited to use it for designated purposes. Few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center.
Or to put it more concretely, private property is private, so you can’t exercise your constitutional rights on someone else’s private property. Libertarians everywhere are cheering. But then, this 1999 decision is being challenged by a group of lawyers arguing on behalf of the protestors that Wicklund‘s exaltation of private property fails to recognize that the Mall of America is hardly as private as they want it to be.
When the mall and the city got wind of the Black Lives Matter protest, they met it with a tightly coordinated response that effectively had them functioning as a single unit, the legal briefs say. Lawyers offered a laundry list of actions that they said demonstrates the “intertwined” relationship between mall and city. Among them:
• City police and mall security conferred frequently before the protest and planned their response jointly.
• The mall sought legal advice from the city attorney, which the city attorney attempted to keep private as privileged attorney-client communication.
• The city attorney directed the mall’s personnel to investigate individuals on social media before the demonstration and preserve the information for possible evidence in prosecutions.
These and other actions, the lawyers argued, essentially transformed the mall into a public place where people should be free to exercise their right to free speech.
The issue of private property that intentionally assumes the attributes of public space has been a significant issue for quite a while, going back to labor strikes against mall businesses. Can a mall do everything within its power to give the appearance of the new village square, drawing in the public to its stores, food courts, tranquil waterfalls and two-for-one sales, while simultaneously asserting its private ownership to defend against the aspects of public space that don’t bring in money?
Where the situation arose in the reverse, that a mall was deemed to have the attributes of public property and so was open for the exercise of constitutional rights, the Supreme Court in Pruneyard Shopping Center held that it was not unconstitutional to require the private property owner to accommodate the public. Here, it’s not coming from government, but from the protestors. Do their rights trump those of the mall owner’s?
What is being argued here is that it’s not just some mall cops on Segways, but the integration of public government and private property. Nobody forced the Mall of America management to place a call on the hotline to the city attorney, but they did. Nobody made them enjoy the benefit of Bloomington’s police to safeguard a pleasant shopping experience from a bunch of people screaming about dead black guys, but they did.
Does this integration of public and private action transform a private mall into a public space, where the exercise of rights cannot be prohibited? And if so, how much integration is necessary before the owners of private property find their shoppers blocked by people uninterested in a 50% off sale?
This is a remarkably difficult and politically charged decision, as those who are absolute in their view that private property should not be taken for public use, whether by the government as prohibited by the Constitution, or protestors with the court’s approval, will draw a hard line that should never be crossed.
But in fairness, private places like the Mall of America go to extreme lengths to create the sense of a public space. They want to be the new village square. They make money by getting folks to come there rather than to actual public spaces, and by doing so, have eliminated the viability of the real public square as a place to exercise constitutional rights. Can they have it both ways?