Tuesday, June 23, 2009

Protests at Shopping Malls

Protest minded right wingers in the Atlanta area were displeased yesterday when Simon Malls, owner of the Gwinnett Place mall, refused to allow a July 4th "Tea Party" to occur on its property. Immediately the right wingers assumed that the company and its owner wanted to support a Democratic agenda, but the real reason behind the company's objection is probably far simpler: they have a legal interest in not allowing protests on their property.

There is a long and storied line of case law establishing when private landowners that open their property to the public must allow members of the public to petition or protest on their property, and when they can remove such individuals. Generally speaking, private landowners are not bound by the First Amendment's rights to speech or assembly. However, many litigants have attempted to expand the First Amendment's requirements to private property that is opened to the general public. From hare krishnas in airports to union picketers at shopping centers, the last fifty years of Supreme Court jurisprudence is littered with cases defining the parameters for the owners of these "quasi-public spaces," such as shopping malls.

The essential rule after years of legal battles by owners of shopping centers and malls is this: as long as the owner of the mall has not dedicated their private property to "public use," they can legally exclude individuals who intend to conduct non-business activities on the property. This includes protesting, petitioning, gathering, and picketing. However, where a landowner has in the past allowed the property to be used much like a town square, such prior use of the property could be used as a bar by a court to prevent that landowner from arguing that his property should now be treated like any other private property (on which there is no right to free speech or assembly.)

So, Simon Malls could have faced future difficulty excluding other groups from protesting, petitioning, gathering or picketing on their property if they had allowed the Tea Party to occur there. I suspect that someone on their legal team finally told them that it was a bad idea from a legal standpoint to allow this protest to occur. It probably had very little to do with politics or PR, and everything to do with avoiding opening the floodgates to every crazy group that might want to congregate in the mall in the future. And it seems like a smart move.


RightKlik said...

Some important points to clarify:

1. The Tea Party organizers did not ask to be allowed to congregate in the mall; they had arranged to stage their event on property adjacent to the mall.

2. Simon Property Group does not own the property on which the Tea Party was to have been held.

3. George Thorndyke, the owner of the property in question, had agreed to allow the Atlanta Tea Party to use his property free of charge and had gone an extra step in sponsoring fireworks.

4. Although the event was to have occurred on private property not owned by Simon Property Group, the mall was able to assert authority on the matter due to reciprocal property easement agreements. Despite the fact that the right-wingers are a bunch of toothless rednecks, they understand that. They're not happy with the 11th hour interference, but unlike Congress, they vaguely understand the concept of contracts the rule of law.

5. The Tea Party organizers were under no illusion that the Mall was under any obligation to allow a protest on their private property ( or that the mall is a public space).

6. Smart move? That remains to be seen. Melvin Simon didn't become a billionaire by making lots of stupid moves, but a heavy handed approach of this sort could backfire. I'm sure the PR considerations were carefully calculated. We shall see.

Side note: Boston is a nice city (I lived there for a while), but like you I am also glad to be back down south. Good luck with your blogging.

Sara said...

Thanks for the clarifications. I was aware of the easement issue, but thought it was too complicated to explain here. Functionally, however, it might not have made a difference to the legal analysis of whether "the mall" had been held open to the public as a gathering place, in the event of a future lawsuit. Because Simon has the power they've exercised to either allow or deny such gatherings, a past allowance could potentially make it harder for them to deny in the future. The analysis is really about the appearance the public gets--does it look like the property has been used like a town square, with permission for the public to congregate freely?--and less about how individual parcels of the property are deeded. Besides, given the numbers expected it seems likely that tea partiers would not have been confined solely to Thorndyke's property and would have spilled over onto Simon property and/or had to pass over Simon property to get to and from the protest site. This means Simon still had the power to deny permission to protestors to pass through its property if it so chose.

Also, while the "toothless rednecks" reference was your assumption and not mine, you should probably go read the things that tea partiers are saying on Twitter and blogs about this before giving them so much credit. I have seen multiple complaints today about how the tea partiers' first amendment rights are being denied and this is illegal, etc. and very little discussion of it being private property with all the rights spelled out in deeds/contracts/easements/etc. I know part of that is just reactionary anger, but it's the overwhelming sentiment on the internets today.

Finally, as to the PR question--I have gotten several hits from Simon internet servers today, so they are obviously monitoring the PR fallout. I don't doubt they calculated the impact, but I think legal concerns probably overrode PR concerns here. There are a lot of other legal issues that would counsel against a gathering of this sort that could become unruly or even dangerous if 20,000 people or more really did show up. Risk adverse companies such as Simon would always prefer to minimize their liability by not giving any more access to their property and its surrounding areas than they have to in order to be open for business.

I guess the point of my post, which I hope was not obscured, is that there are a lot of good non-political legal reasons why a company wouldn't want to allow a protest to occur at their mall. And I hope people will consider those reasons as possible explanations for Simon's actions before they make the unsupported assumptions that I saw today on the internet that Democratic party insider machinations must be to blame. The simplest explanation is usually the right one.

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