Court: Mall fur protest not constitutionally protected speech

ST. PAUL (AP) — State constitutional protection of free speech does not extend to the Mall of America simply because public money was used to build the Bloomington mall, the Minnesota Court of Appeals ruled Tuesday.
The pretrial ruling allows misdemeanor trespassing charges to proceed against four animal rights protesters arrested in 1996 outside Macy’s.
The four allegedly stood indoors in the courtyard in front of the department store carrying signs and distributing leaflets directed against the sale of furs. The demonstrators were advised there were public places to protest on the sidewalk outside the mall, but they refused to leave and were arrested.
The outdoor sidewalk alternative was key in the court’s ruling.
“Although no part of this area is immediately adjacent to the Macy’s store, and this alternative provides little opportunity for direct contact with pedestrians, the record does not show that this alternative is so distant or has so many disadvantages that it is not an acceptable alternative channel of communication,” the court said.
The protesters had moved to dismiss the charges, contending the trespassing law was unconstitutionally applied to them.
Tuesday’s ruling reverses a ruling by Hennepin County Circuit Court Judge Jack Nordby. He refused last July to dismiss the charges, determining that because public funding was used in its construction, the mall was not private in any real sense.
“This is a major victory for the Mall of America,” said John Wheeler, the mall’s vice president. “This ruling will allow us to continue providing our guests with a safe and enjoyable shopping and entertainment experience.”
The city of Bloomington had argued along with the mall that there was no constitutional right to protest inside shopping malls.
Larry Leventhal, the attorney for the four defendants, said they likely would appeal.
“The right of freedom of speech requires that people should be able to speak to one another where they’re gathering, and overwhelmingly now people are gathering in malls,” Leventhal said.
Randall Tigue, a lawyer with the Minnesota Civil Liberties Union, said the group would file a brief on the defendants’ behalf if they appealed.
“(The opinion) didn’t address the circumstances that make the Mall of America subject to constitutional protection. It is not merely the question of governmental funding. It’s the question of whether the Mall of America is in essence functioning as a town square,” he said.