Just before Christmas there was a legal skirmish out in Minnesota where the Mall of America asked a court to block a Black Lives Matter protest on their property. (The group had illegally shut down the mall for all intents and purposes the previous year.) The court agreed that they could ban some of the protest organizers from showing up, but were unable to deliver a complete ban on a demonstration because of the diffuse nature of the “movement” and the lack of organizational structure to go after via the legal system. Still, the point had been made and there was a significant law enforcement response when the protesters showed up anyway. (Yahoo News)

Police made at least four arrests as hundreds of protesters with the Black Lives Matter movement briefly shut stores at the sprawling Mall of America and blocked traffic at Minneapolis airport Wednesday, officials and reports said…

Shops began locking up shortly before Wednesday’s protest was set to begin and security guards searched the bags of people entering the mall, according to images posted on social media.

The mall issued warnings that “this demonstration is not authorized” and that “those who fail to leave the property immediately will be subject to arrest,” before police in riot gear began escorting people out of the building.

It was a fairly unsatisfying result for both sides of the confrontation as near as I can tell. Security hustled the protesters out, leading to their relocation of the protest to the airport. (Where they shut down some flights for a time.) But the stores were still closed for a while and commerce ground to a halt as the agitators intended. Also, the tepid response from the court, being unable to identify a responsible party to issue an order to, left the door open to additional thuggish behavior such as this.

Still, the Social Justice Warriors are wringing their hands in dismay at the idea that anyone could ever be kept off of private property for one of their “protests” and see all sorts of threats to freedom coming from it. Alleen Brown at The Intercept gives a lengthy analysis of this strange line of thinking.

Mall of America’s ability to so zealously suppress the December 23 protest there highlights how, in a nation where more and more public life takes place in privatized spaces, the ability to exercise First Amendment rights has become increasingly contingent. From Zuccotti Park to Twitter, some of the last decade’s most iconic venues for dissent have been privately run. In cities like New York, privately owned public spaces have been proliferating for several decades, racing ahead of the case law that will ultimately decide their relationship to Constitutional rights. And legal experts expect social media to be a primary subject of First Amendment battles for decades to come.

“In the eyes of the law, those spaces for speech can be shut down and subject to arbitrary censorship in ways that the public square cannot,” said Teresa Nelson, legal director for the ACLU of Minnesota. “We either need to resolve to give up our First Amendment rights or get them to shift along with our changing technology.”

This argument, such as it is, has already failed the test of the Supreme Court and it makes no more sense today than when it was first attempted. There is no such things as a “privately owned public space.” There is public property (owned by the government at some level) and there is private property. Simply wishing it were otherwise doesn’t change this. Proponents such as Brown like to raise the point that public funds were incorporated into the original deal to build the mall and run the rail line there so commuters could more easily reach it. So what? Once the construction was done, Mall of America owned the property, along with the tangential interests of the merchants who rent shops there. They pay the taxes. They make the space open for shopping, not for anything you’d wish to do.

For a better parallel example, there are 31 places around the country where municipal government have (stupidly, in my opinion) put up public funds for the construction of NFL stadiums. That doesn’t mean that the public owns the stadium and can do whatever they want inside. (I say 31 because Green Bay is the exception.) Everyone can exercise their First Amendment rights in the public square. You can not go into people’s homes and businesses to protest as you please, however.

And on that note, I would add that the Black Lives Matter events aren’t really even protests and have very little to do with free speech. They are specifically designed to “disrupt” commerce and normal activity by private citizens. At Mall of America they were not there “to be heard” but to shut down the mall. Just ask their own leaders. That’s the goal, just as they wanted to shut down the airport at the holidays and stop regular commercial transport. It’s why they try to shut down the highways. This is not protesting. It’s economic terrorism.

Further court action is required, in my opinion, but not the sort the protesters are seeking. Law enforcement has a duty to protect the free operation of commercial activity and to arrest and remove those seeking to hold private business owners hostage. The lack of a “proper” legal entity to serve injunctions to should not act as an impediment to that duty.

MallOfAmerica