The move by Black Lives Matter to plan a protest at the Mall of America for the second year in a row strikes at the often-tricky balance between free speech and the rights of private property owners.
In recent months, Black Lives Matter Minneapolis has drawn the eyes of the nation to its cause by staging die-ins on light-rail tracks, marching on freeways at rush hour, setting up camp outside the city’s Fourth Precinct police station. Those demonstrations have been effective, it must be acknowledged, specifically because they relied on a nonviolent disruption of systems in public spaces. Whether those incidents were properly handled by law enforcement authorities and elected officials is still a matter of debate.
What is not in dispute is that the Mall of America is not a public space and that it has the right to protect its property rights, business purpose and the safety of those who work and visit there. Hennepin County District Judge Karen Janisch acknowledged as much in a ruling Tuesday that barred three Black Lives leaders from the protest. But she noted that a restraining order could not be granted against an entire group that is not a legal entity and has no formal membership. Janisch was quick to note that her order was not to be interpreted as a sanctioning of the protest.
Free speech is one of this nation’s most cherished rights. But the First Amendment guarantees neither a specific place nor audience for the exercise of that right. The question of whether shopping malls constitute town squares that are open to the public was settled in 1972. In Lloyd Corp. vs. Tanner, the U.S. Supreme Court ruled that “there is no open-ended invitation to the public to use the [mall] for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.”
Similarly, the Minnesota Supreme Court in the 1999 Wicklund case examined whether the mall’s heavy public funding had transformed it into a public space. The court rejected that argument, ruling that “neither the presence of public financing alone nor the public financing coupled with an invitation to the public to come onto the property is sufficient to transform privately owned property into public property for purposes of state action.”
Hennepin County District Judge Peter Cahill, in dismissing charges against some of the protesters in last year’s incident, affirmed that reasoning. He also chided mall officials for not using all of the tools at their disposal, specifically their failure to seek a court injunction before the event and their decision to allow the protest to proceed for a time before moving in, which he said amounted to tacit approval.
Mall officials must feel a bit confounded at the moment. One judge chastised them for not seeking an injunction against the group; another judge says their request against the group was overly broad. Protesters, incensed that the mall also sought to legally force them to post a cancellation of the event on social media, say that to stand down now would mean the mall “would win.” Mall officials know that if they do not seek immediate dispersal, they risk being seen as offering tacit approval.
This sets the stage for a tense confrontation between protesters and law enforcement officers in the nation’s largest mall on one of the busiest shopping days of the year. The burden will be high on both sides to exercise restraint and good judgment.
Black Lives Matter protesters have every right to seek what they consider justice, but in a nation of laws they are not entitled to every means necessary. Their cause is unrelated to the Mall of America. Their protest could be held anywhere. Public officials can decide to allow protests on freeways, on train tracks and even in front of police stations, but they must draw the line at safeguarding private spaces. Holiday shoppers, retail workers and security guards should not become unwilling pawns in this larger contest of wills.