MOA protests: The First Amendment and public space vs. private

Updated: 4:14 p.m. | Posted: 2:34 p.m.

A Hennepin County judge has ruled the Mall of America can legally keep three Black Lives Matter protest leaders from demonstrating at the mall on Wednesday but rejected the mall's demand that Black Lives Matter be forced to post on social media that the protest is canceled.

The judge also did not approve a temporary restraining order against the "unincorporated entity known as Black Lives Matter Minneapolis."

The protest and the MOA's request have raised several questions about the First Amendment and about what's public space versus private.

What does the First Amendment say?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

So that means I can say whatever I want and gather wherever I want, right?

Simply put, no.

"No right is absolute," said First Amendment attorney Steve Aggergaard. "Regardless of what amendment we're talking about in the Bill of Rights, there are situations where free speech rights give way to other rights."

One such example is in regards to private property.

Is the mall public or private?

In 1999, the Minnesota Supreme Court decided the case of State v. Wicklund, in which protesters wanted to demonstrate against fur sales, arguing that the Mall of America is essentially Main Street. The court decided that the Mall of America is a private entity and has the right to exclude.

Aggergaard previously told MPR News that a few states, including California, Massachusetts and Colorado, have decided that shopping malls are essentially Main Street, "and you can't privatize Main Street, at least when you're talking about core political speech."

But Minnesota is not one of those states.

If the mall is private property, why are protesters gathering there?

Jordan Kushner, the attorney representing Black Lives Matter Minneapolis, said the mall should be viewed as public space.

"The problem is that they've appropriated the public forum where people used to go and congregate and demonstrate in the town square," Kushner said. "And now they've made the town square their own, they've got an amusement park, they got entertainment, they've got the rotunda. But they want to keep that private only for commercial purposes and for their own purposes."

Where are protesters allowed to assemble?

Protesters can freely assemble on public property.

What is considered public property?

Public property is government-owned — but not all government-owned properties have the same free-speech rights, according to attorney Teresa Nelson of the American Civil Liberties Union of Minnesota.

The courts consider public parks, streets and sidewalks a public forum — the "town square."

But other public property, where the business of government takes place, is not considered public forums. There are places within those buildings, like the Capitol rotunda, that can be designated public forums.

Can protesters be arrested if they gather on private property?

Possibly, because trespassing is a crime.

"Generally, if you're in a place where you don't have a right to be and you're told you don't have a right to be there while you're on that premises, that's enough," Aggergaard said. "You might be faced with the choice of leaving or the choice of not leaving and seeing where the chips fall, which might very well result in arrest."

Was the mall's request to remove or add posts infringing on free speech?

"In general, the idea that government can compel people to say certain things or to take Internet posts down is really frowned upon under the law," Aggergaard said.

Attorney Susan Gaertner, who filed the order on behalf of the Mall of America, said there aren't a lot of laws that set precedent for how social media plays a role in situations like these. She explained the rationale behind the request in an interview with MPR News' Cathy Wurzer.

"They are posting on Facebook, 'come to this unlawful protest,' " she said. "It only seems right and logical that the remedy for encouraging an unlawful protest is to simply put on their Facebook page it's canceled."

However, the American Civil Liberties Union of Minnesota said it was alarmed by the request to the court.

"Organizing a protest on social media is protected by the First Amendment to the Constitution and should not be restrained, the ACLU said, adding, "The Mall of America is trying to intimidate free speech activities with this aggressive lawsuit."