On Saturday, Dec. 20, Minnesota’s Mall of America was partially shut down for hours as at least 1,500 people converged inside for a Black Lives Matter protest. No violence or property damage was reported, according to Minnesota Public Radio (MPR). Twenty-five people were arrested, cited, and released. But Bloomington City Attorney Sandra Johnson, citing the overtime incurred by police and the revenue lost by shuttered shops, says the organizers of the protests should pay a higher price.
“It’s important to make an example out of these organizers so that this never happens again,” Johnson told MPR on Tuesday. She said she plans to file criminal charges next week against leaders of the demonstration, perhaps for aiding and abetting unlawful assembly or aiding and abetting public nuisance. Along with mall security videos to identify the organizers, prosecutors plan to scour Facebook posts and media interviews. “Who led that march through the Mall of America?” Johnson said to the local CBS station Monday night. “If we can identify those people who were inciting others to continue with this illegal activity, we can consider charges against them too.”
Is this all constitutional? It’s complicated.
The First Amendment restricts the government from restraining free speech, but the government can punish protesters for trespassing on private property. In a 1999 decision, the Supreme Court of Minnesota ruled that a group of protesters—animal rights activists handing out anti-fur leaflets—weren’t protected from arrest for trespassing at the Mall of America. The protesters argued that the public funding that went into the mall, and the invitation to the public to gather there, should come with a chance to speak freely inside. But the justices weren’t convinced: “While the public is invited to many privately owned places to shop, dine, or be entertained,” they wrote, “the invitation creates only a license which may be revoked, as it was here.”
Mall owners can also pick which kinds of speech to silence, something critics say Mall of America did by expelling Black Lives Matter activists but not a group of thousands who gathered in the same rotunda last year to honor a man who died of cancer. Protesters could conceivably argue that the mall violated the state’s antidiscrimination law by treating them differently based on the race, color, or creed of the people protesting, says City University of New York Law Professor Ruthann Robson. (The legal meaning of “creed,” she notes, is “quite underdeveloped” so far.) But the Constitution doesn’t stop private companies, even places of “public accommodation” such as malls, from kicking people out based on the content of their speech, or stop the government from punishing them if they refuse to leave.
How about punishing people for speech that spurs others to break the law? Courts have concluded there’s room under the First Amendment for that—under some very specific circumstances. “The standard for criminal punishment of incitement is quite high,” says Mark Tushnet, a law professor at Harvard. In a 1969 decision rejecting the Ohio conviction of a Ku Klux Klan leader, the Supreme Court said the government could only forbid advocating that people break the law “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Under that precedent, “people can be punished for advocating illegal activity only if they intended that illegal activity ensue, only if they used explicit words of incitement, and, most importantly, only if they intended to incite ‘imminent’ illegal activity under circumstances in which such illegal activity was likely,” says Frederick Schauer, a law professor at the University of Virginia.
That last one could pose the biggest constitutional obstacle for prosecutors out to punish people for instigating protests. Under prevailing law, says Schauer, “imminence” is “a very strict standard approaching standing in front of an angry mob and encouraging them to immediate illegal action.” It’s particularly difficult, says CUNY’s Robson, to prove someone guilty of incitement based on Facebook posts or other written statements, which are less likely to have a provable immediate effect. Another obstacle for prosecutors: Some cases have also suggested that for incitement to be illegal, it has to be incitement to “pretty serious” crimes, notes Schauer, though those precedents are less clear.
Protesters are urging the city—and the mall—to relent. In a statement posted on the Black Lives Matter Minneapolis Facebook Page, activists wrote, “It’s clear that the Bloomington City government, at the behest of one of the largest centers of commerce in the country, hopes to set a precedent that will stifle dissent and instill fear into young people of color and allies who refuse to watch their brothers and sisters get gunned down in the streets with no consequences.” They urged supporters to call the city and the mall to register their opposition and to tweet at both with a new hashtag: #ChargeMeToo.