Saturday, January 09, 2016

Why It’s Scary That the Mall of America Can Crush Dissent

Why It’s Scary That the Mall of America Can Crush Dissent

As I've been saying for many years...

"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 situation was, as many of you know, at the core of the Twin Rivers case that went to the New Jersey Supreme Court. Rutgers Law School Professor Frank Askin brought the case on behalf of homeowners who tried to establish freedom of expression rights on the private property of their homeowner-association run private community. I was the expert witness for the owners, the Committee for a Better Twin Rivers. And a similar situation exists in many shopping malls, which in many communities are the only public spaces available to contact large numbers of people for political purposes.

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