Minnesota high court finds no free-speech protection for mall protesters

Monday, March 15, 1999

The Minnesota Supreme Court has ruled that neither the First Amendment nor the free-speech provision of the state constitution extends to protect speech in the largest shopping mall in the country, the Mall of America.

The ruling, which was handed down last week, allows trespassing charges to proceed against four animal-rights activists who were arrested in May 1996 in a common area of the mall near Macy's department store. The activists targeted Macy's because the store sold items made with fur.

Ten activists handed out leaflets, held up anti-fur signs and attempted to speak to would-be store customers about the ethics of wearing fur products. Security guards warned the protesters that they were trespassing and asked them to leave. Six activists left but four continued to protest and were eventually arrested.

A trial judge ruled in July 1997 that because the Mall of America was funded by a significant amount of public money, it was “born of a union with government” and subject to the First Amendment.

However, in May 1998, the Minnesota Court of Appeals reversed, finding that the First Amendment did not apply to speech on private property.

On appeal, the Minnesota Supreme Court in State v. Wicklund agreed with the appeals court that the Mall of America was private property.

“The clear state of the law then is that property is not somehow converted from private to public for free speech purposes because it is openly accessible to the public,” the state high court wrote in its March 11 opinion.

The protesters argued that the Minnesota Supreme Court should interpret the state constitution to provide greater protection than the U.S. Constitution. They noted that other state courts — in California, Massachusetts, Oregon and New Jersey — had interpreted their own constitutions to provide some free-speech protection in shopping malls.

In 1980, the U.S. Supreme Court ruled in PruneYard Shopping Center v. Robbins that California could interpret its state constitution so that free-expression rights were protected even on private property.

However, the Minnesota high court noted that a majority of courts examining the question had not found any free-speech rights in privately owned shopping malls.

Next, the court noted that even the “small minority of state courts” that had interpreted their state constitutions to allow a measure of free-speech protection in shopping malls had limited that protection to petitioners seeking signatures on ballot initiatives.

The Minnesota high court distinguished the speech of the four animal-rights protesters from that of political campaigners, writing: “Appellants' speech was directed at persuading shoppers to forgo buying fur products and to boycott Macy's in an attempt to effect change in the retail and fur industries. Its purpose was not to achieve some political goal such as a ballot initiative — it is best characterized as protest speech, intended to be provocative.”

Finally, the court found that there was simply “no historical basis” for interpreting the free-speech provision of the state constitution any more broadly than the First Amendment.

The court also rejected the argument that because the Mall of America was born of a “union with government,” it was subject to the guarantees of the First Amendment.

However, the court noted that the Mall of America was managed by a private company, which paid for public services in the same manner as any other private business in the city.

“There is neither sufficient nexus nor symbiosis to establish that the Mall of America is the alter ego of a governmental entity,” the court wrote.

Larry Leventhal, lead attorney for the protesters, told Minneapolis' Star Tribune that the court's decision “means in Minnesota that the rights of free speech are less than they are in other states.”

David Garelick, another attorney for the protesters, said that “it is too bad that corporate interests trump the public's right to free speech especially in an age where the mall has become the modern-day equivalent of the town square.”

However, mall attorney John Sheran, of the Minneapolis law firm Leonard, Street and Deinard, applauded the decision. “The Mall of America is pleased with the result,” he said. “It reaffirms our position that we took from the beginning that the Mall of America is private property.

“While we recognize the value of free speech, we also recognize the value of private property rights,” he said. “The decision of the court focuses on the right of private property owners to maintain control over activities that take place on property for which they have responsibility and liability.”