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Mall of America is not a public forum, court rules

By Edmund Mander

Does public funding make a shopping center a public forum? Not necessarily, according to an April ruling by the Minnesota Court of Appeals in a public access case concerning the state's most famous center, the Mall of America in Bloomington.

Just because the Mall of America's construction was partly funded from public coffers does not oblige its owners to allow demonstrations and other freedom of speech activities there, the court ruled.

The April ruling, which was followed closely by developers across the country, overturned a lower court's verdict that the Minnesota Constitution permits people in the Mall of America to protest there, even though it is privately owned, because it was publicly subsidized.

This ruling is of great importance, according to John M. Sheran, a Minneapolis lawyer representing Mall of America in the case, because while there have been many attempts in the courts across the country to classify malls as public forums under the First Amendment, this was the first time plaintiffs (in this case, antifur demonstrators) used the public subsidy argument to make their case. "The importance of this decision is that it maintains a necessary system to assist municipalities in developing properties without having to impose on the potential developers a restriction of their property rights," he said.

The verdict affects thousands of property owners who have received a public subsidy in one form or another for their projects, Mr. Sheran said, adding that Minnesota alone has well over 14,000 such properties.

"Malls now do not have to worry about taking on obligations of policing demonstrations that really is more appropriate for municipal police forces," he added.

But Charles Samuelson, executive director of the Minnesota Civil Liberties Union (MCLU) called the verdict a setback for free speech. The MCLU had filed a court brief in support of the defendants.

"These large malls have been marketing themselves and, in essence, assuming the character of city centers, and once they adopt the role of a city center, they have to play by the rules of the city center," Mr. Samuelson said.

The International Council of Shopping Centers filed a friend of the court brief in support of the appeal citing several federal and state court verdicts, as well as state constitutional provisions that have upheld the private status of shopping centers. The Building Owners and Managers Association and League of Minnesota Cities also submitted briefs supporting testimony.

The case stemmed from a demonstration two years ago outside the mall's Macy's (also owned by Cincinnati-based Federated Department Stores), in which protesters urged people to boycott Macy's and Bloomingdale's over the sale of clothing made from animal fur. When four protesters refused security officers' demands to stop, police charged them with trespassing.

But the defendants called for a dismissal of the charges, claiming that because public funds helped pay for the construction of Mall of America, they had the right to assemble and protest there under the First Amendment. The mall received up to $186 million in public funding, amounting to more than 13% of its total construction cost, from the City of Bloomington and the Bloomington Port Authority, while its private investors put in about $700 million, according to court documents.

After a pretrial hearing on the matter last summer, trial court Judge Jack Nordby agreed with the defendants that Mall of America's public subsidy makes it a "public forum" in the context of the Minnesota Constitution's First Amendment. Judge Nordby, however, refused to dismiss the charges against the protesters, explaining that because they had not tried to obtain Mall of America's permission for their protest -- he noted malls are entitled to set a time and place for such activities -- it could not be shown that the center had violated their First Amendment rights by refusing. As of presstime, the defendants' case was pending.

This ruling was unsettling to Mall of America and many other private property owners. The following week, antifur demonstrators returned and were arrested again, and other groups also attempted to demonstrate at the mall, reported Teresa McFarland, director of public relations for the mall.

Fur protesters on one occasion turned up wearing nothing but boxer shorts and chained themselves to doors, Ms. McFarland said.

"With a lot of families and kids that are coming into the mall, it's not quite the environment you want to create for a family entertainment facility like Mall of America," she said. "You never know: If one group's allowed, you could end up having two groups squaring off, and innocent bystanders being injured."

State prosecutors, who filed the appeal the Court of Appeals, were concerned that the ruling would make it impossible to prosecute the protesters for trespassing.

The Court of Appeals cited several reasons for rejecting Judge Nordby's ruling, stating that the free speech component of the Minnesota Constitution does not apply to privately owned shopping centers, those partly financed with public funds. Moreover, the court ruled that Minnesota's Constitution only protects against speech and conduct infringement from "state action," and that public funding in itself does not amount to "state action."

The U.S. Supreme Court ruled in 1972, in Lloyd Corp. vs. Tanner, that because shopping centers are private property, no citizen has the automatic right to engage in First Amendment activities there. The Supreme Court amended this position in 1980, ruling that such activities are protected in states whose constitutions extend a broader protection than the federal Bill of Rights.

This has resulted in a series of cases in state courts around the country in which groups ranging from labor unions to the Ku Klux Klan have claimed the right to demonstrate or distribute literature in malls. All but a handful have resulted in verdicts favoring the property owners.

Mr. Samuelson of the MCLU predicted that the case will go to Minnesota's Supreme Court, and that ultimately malls across the country will be regarded as public forums.

"I think it's not an issue that's going to die. It has ramifications for all shopping centers that advertise themselves as some sort of a destination or some sort of a city center," he said. "This is going to be more and more of a public policy debate that the people of the United States are going to have to enter into, and it'll be discussed for decades and decades until some resolution comes about."

On the contrary, shopping centers clearly are not appropriate as public forums, Mr. Sheran said. "Malls are not in the business of making their space available for these purposes, which have the potential of being, in some cases, volatile."

Ms. McFarland said the mall is not perturbed by the prospect of the case being heard by the Minnesota Supreme Court. "We would welcome the chance to have it heard in the highest court possible and get it settled once and for all."