“The Poorly Financed Causes Of Little People”: In Black Lives Matter Protest, Corporate Rights Trump Free Speech
Minnesotans protesting police violence and institutional racism could face “staggering” fees and criminal charges for a protest at Mall of America, with the City of Bloomington announcing plans to force organizers to pay for the mall’s lost revenue during the exercise of their free speech rights, highlighting important questions about free speech in an era of privatized public spaces.
“Youth leaders of color [are] under attack,” Black Lives Matter-Minnesota said in a statement. “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.”
Around 3,000 people flooded the mall on Saturday, December 20, to sing carols and chants following police killings of unarmed African-American men like Eric Garner, Michael Brown, Tamir Rice, and Dontre Hamilton. The protests were peaceful, and some mall workers stepped outside of their businesses and raised their hands in support. Police closed around 80 stores during the two-and-a-half hour protests, and locked down several mall entrances.
Days after the action, Bloomington City Attorney Sandra Johnson announced that she will not only seek criminal trespass and unlawful assembly charges against the protesters, but will also seek to have them pay for the mall’s lost revenue and overtime for police officers–a cost that she says will be “staggering.”
Can the Mall of America prohibit the exercise of free speech and assembly on its premises? And can it pick-and-choose who it allows to assemble? Last year, for example, the Mall allowed around 7,000 people to gather in the same rotunda to honor a young white man who died of cancer.
The First Amendment protects against government suppression of speech, but not private responses to the exercise of free speech and expression. And the Mall of America is considered private property, despite receiving hundreds of millions in public subsidies since it was built, including an additional $250 million approved last year.
For decades, courts have struggled with how to protect free speech in public forums that have grown increasingly privatized.
Mall “Born of a Union with Government,” but Not a Public Space
In many communities, town squares and downtown business districts have largely been replaced by privately-owned shopping malls, particularly in suburban areas. In Bloomington, Minnesota, for example, there is no public space that offers the same level of visibility as a protest at the Mall of America–which is why protesters chose the location on December 20.
Even traditional public spaces like parks are increasingly owned by private entities, most famously in New York’s Zuccotti Park, where Occupy Wall Street was born, and where Occupiers faced eviction after the park’s owners changed the rules.
Mall of America’s status as a public space under the Minnesota state constitution was challenged in the 1990s by anti-fur activists who wanted to protest outside Macy’s. A Minnesota trial court initially found that, thanks to the Mall’s substantial public subsidies, the Mall of America was “born of a union with government” and could only impose reasonable time, place, and manner restrictions on protest.
The Minnesota Supreme Court, though, reversed the lower court in 1998 and declared that the state constitution’s protection of free speech “does not apply to a privately owned shopping center such as the Mall of America, although developed in part with public financing.”
Suburban Malls as Public Spaces?
Initially, however, the U.S. Supreme Court viewed privately-owned suburban shopping malls through the same lens as the public town squares they were replacing.
In 1968, in an opinion authored by Justice Thurgood Marshall, the Court held that suburban shopping malls were serving the same public function as a town square, and therefore should be subject to similar constitutional constraints.
“The shopping center premises are open to the public to the same extent that as the commercial center of a normal town,” Marshall wrote in the case, which involved the Logan Valley Mall in Pennsylvania. “So far as can be determined, the main distinction in practice between use by the public of the Logan Valley Mall and of any other business district … would be that those members of the general public who sought to use the mall premises in a manner contrary to the wishes of the [owners] could be prevented from so doing.”
Subsequent decisions, however, chipped away at that “public function” doctrine, most notably in a 1972 decision authored by Justice Louis Powell.
Powell, a former corporate lawyer who had authored the Powell Memo for the U.S. Chamber of Commerce the previous year, declared in the Lloyd Corp. v. Tanner decision that a mall does not “lose its private character merely because the public is generally invited to use it for designated purposes.”
A new opening for states to protect free speech in shopping malls emerged in the 1980 Pruneyard Shopping Center v. Robbins decision. In that case, the Court opened the door to states finding that their own constitutions protect free speech in shopping malls or other privately-owned public spaces. The California constitution’s broader free speech protections, for example, allow for protests and leafletting in that state’s malls.
Minnesota’s Supreme Court, though, came to a different outcome in that 1998 case involving the fur protesters. The state constitution, the justices declared, does not bar Mall of America’s owners from limiting the exercise of free speech on mall property, or choosing to allow some forms of speech but not others.
“The Poorly Financed Causes of Little People” Yield to Corporate Rights
In recent years, the First Amendment has undergone a revolution in the U.S. Supreme Court–in cases like Citizens United, Hobby Lobby, and McCutcheon–but largely in favor of expanding the “free speech rights” of corporations and the wealthy few, rather than protecting what Justice Hugo Black described in 1945 as “the poorly financed causes of little people.” When average Americans raise their voices in protest, they can still be muffled by corporate interests.
By: Brendan Fischer, The Center For Media And Democracy, December 26, 2014
“Because The NRA Tells Them To”: Republicans Are Blocking Ratification of Even the Most Reasonable International Treaties
The world got a present on Christmas Eve, when an international treaty to limit the sale of weapons to warlords and terrorists went into effect. The Arms Trade Treaty (ATT) aims to limit the number of civilians slaughtered around the world by requiring any country that sells weapons to establish the same kind of export criteria that the U.S. and other Western democracies have in place. It has been signed by 130 countries and ratified by 60, ten more than it needed to become effective. When the U.N. General Assembly put it to a vote last year, only three countries opposed the treaty outright: North Korea, Syria, and Iran.
While the Obama administration has signed the treaty, there is no chance it will get the 67 votes needed for Senate ratification. In October 2013, 50 senators sent the president a letter expressing their opposition to the ATT. They included every Republican except Mark Kirk, and five Democrats—Joe Manchin, Mark Pryor, Mark Begich, Mary Landieu and Kay Hagen. (Manchin was the only one of the Democrats who was not up for reelection last month, and all four that were lost.) So the Republicans stand together with the Axis of Evil 2.0 because the National Rifle Association opposes the treaty. The NRA sees it as a potential threat to gun ownership because it does not explicitly provide a guarantee of the “American people’s rights under the Second Amendment.”
In the Senate’s first two centuries, it approved more than 1,500 treaties. It rejected only 21; another 85 were withdrawn because the Senate did not take action on them. A treaty that is not approved, rejected, or withdrawn remains in limbo. At present, there are 36 treaties awaiting action by the Senate, dealing with everything from the protection of albatrosses to the testing of nuclear weapons.
While protecting waterfowl might seem like something reasonable people could agree upon, apparently no issue is too small for the foes of the imaginary threat of a world government. There are more serious questions not being addressed, however, including:
—The United States has six tax treaties with over 60 countries to prevent double-taxation and make tax evasion more difficult. Republicans have prevented approval of the six, costing the country billions in lost revenue each year.
—Drafted over thirty years ago, the Law of the Sea Treaty is designed to bring some order to the world’s oceans and lessen the chances for conflict in places like the South China Sea. Ratified by 162 countries and supported by the oil and gas industry, the Pentagon, environmentalists, and past presidents from both parties, it was opposed by Republicans because “no international organization owns the seas.”
—The Convention on the Rights of Persons With Disabilities would apply the standards found in American law to other countries. It is supported by veterans’ groups and corporate interests and has been ratified by 141 countries. Home-schoolers and right-to-life groups opposed it, however, believing false claims that it would interfere with their children’s education and increase access to abortion. When it came to a vote two years ago, 38 Republican senators voted nay.
—The Convention on the Rights of the Child, one of the most popular and respected human rights treaties in history, was negotiated during the Ronald Reagan and George H. W. Bush administrations with major American input. The United States may soon be the only country among the 193 members of the U.N. that has failed to ratify it. Opponents argue it would hurt traditional families and the rights of parents.
One of the most frequent criticisms of any treaty is that it undermines American sovereignty. But that is the price of international cooperation. Any relationship, whether between two people or among two hundred countries, requires some limits on what one party can do. Globalization has made such cooperation even more imperative; it is impossible for one nation to deal unilaterally with today’s gravest problems. Even the world’s only superpower cannot ignore that fact.
The term “American exceptionalism” never appeared in any party platform until the election in 2012. It made its debut in the Republican platform that year as an 8,000-word section, devoted to the concept that America holds a unique place and role in human history. If the GOP continues to let paranoia prevent this country’s leadership, or even participation, in addressing the challenges created by an ever-more globalized world, that role in history will be short.
By: Dennis Jett, Professor of International Affairs, Penn State University; The New Republic, December 26, 2014
“Resetting The Default Button”: The NYPD Is Using Fear As A Weapon In The “War On Cops” Crackdown
The New York Post‘s Christmas edition carried a red, but hardly festive banner on its front page: “War on Cops.” The hyperbole aptly captures the perspective of the New York Police Department, which indeed has behaved like it’s at war since officers Rafael Ramos and Wenjian Liu were murdered in their patrol car last week. Patrick Lynch, the head of the city’s largest police union, declared that there’s “blood on many hands,” specifically “those who incited violence under the guise of protests” and Mayor Bill de Blasio. Another police union has advised its members to remain armed even when they’re off duty and to keep a low profile on the street and online.
Never mind that the dead killer, Ismaaiyl Brinsley, had a long history of mental illness and had shot his ex-girlfriend in Maryland before traveling up to NYC. The only relevant fact, it seems, is that Brinsley had forecast his actions by posting a photo of a pistol on Instagram with the phrase “They Take 1 Of Ours… Let’s Take 2 of Theirs” and hashtag references to Eric Garner and Michael Brown. That’s all the evidence that Lynch, the Post, and their ilk need that there’s a war on cops—and that police must respond in kind.
The week after Ramos and Liu’s deaths has seen more than 40 threats against the NYPD, with seven arrests in connections with those threats, the department’s media office said Friday. One of those arrested, Devon Coley, an 18-year-old facing separate assault and weapons charges, posted on Facebook a photo—possibly from a movie—of a man firing a pistol into the driver’s side of a police car. He wrote “Nextt73,” an apparent reference to his local police precinct in Brooklyn, and punctuated it with emojis of a cop with a pistol by his head.
Under normal circumstances, that vague, semipublic comment might be reason for police to contact Coley for a conversation. But in these “blood on the hands” times, the NYPD is making it known that it will treat all threats as deadly serious. For his Facebook post, Coley faces up to seven years in prison. Brooklyn’s district attorney, Ken Thompson, told the Post that his request for $250,000 bail in the case fit the charge of making terroristic threats. (New York statute defines it as an actual threat that inspires “a reasonable expectation or fear” that a specified crime will happen.) While acknowledging that what Coley did was “stupid” and an “incredible inflammatory thing to do right now,” Circuit Judge Laura Johnson concluded, “I think that for me to set bail because of the current climate—it would be a misuse of bail.”
NYPD’s strong reaction does seem justified in at least one case: An informant with ties to Black Guerilla Family gang overheard talk of shooting up the stations, sources told DNAinfo, prompting two precincts to post heavily armed officers outside. But actual arrests have made for a less-than-ominous roundup. A Queens man was overheard talking on his phone about killing police; after receiving a tip, police searched his place and found guns, brass knuckles, and pot paraphernalia. A Manhattan man called Ramos and Liu’s old precinct in the middle of the night and claimed to be Brinsley, saying he’d like to kill more cops. Two men were arrested for making false reports of other people making threats. One Staten Island teenager wrote “kill the cops” on Facebook. And Jose Maldonado, 26, posted the same shooting photo Coley did, musing he “might just go out and kill two cops myself!!!” He surrendered to police and apologized, saying he was drunk. That didn’t save him from a trip to Riker’s after being arraigned on charges of terroristic threatening.
The NYPD understandably takes even drunken rants seriously, given Brinsley’s Instagram message. But throwing terroristic-threat charges at Facebook users who walk themselves into police stations when police contact them, as both Coley and Maldonado did, cheapens the very notion of terror. It might also make their jobs a whole lot harder in the coming weeks and months.
A basic principle of good policing holds that officers in the field should seek to de-escalate, rather than intensify, tension and use of force. (Police escalation of force was instrumental in many if not all the recent deaths that have sparked nationwide protests.) Yet thousands of New York’s finest created a political spectacle at Ramos’ funeral Saturday by turning their backs on the mayor during his eulogy. And while it’s Lynch’s job to antagonize the sitting mayor when his union is in protracted contract negotiations with the city, it’s also his job to represent police to the city. Cranking up the heat, especially at funerals, does police no favors. Even NYPD Commissioner Bill Bratton has started pointing fingers, saying on the “Today” show that the “targeting of these two police officers was a direct spinoff of this issue of these demonstrations.”
Connecting peaceful demonstrators to a cop-killer has had its presumably intended effect. The New York Times on Friday reported that the killing of Ramos and Liu has opened rifts in the protest movement in New York. “It is wrong to connect the isolated act of one man who killed NYPD officers to a nonviolent mass movement,” Joo-Hyun Kang, the executive director of Communities United for Police Reform, told the paper. But conflating a call to end police violence with violence against police, contradictorily or not, has worked in City Hall. The Times quoted Council Speaker Melissa Mark-Viverito, who earlier in December exhorted her colleagues to repeat “I can’t breathe” in memory of Garner’s last words, now calling “to end hateful and divisive rhetoric which seeks to demonize officers and their work.”
At the protests I saw two weeks ago, no one was demonizing officers’ work: The overwhelming mass of people were calling for police simply to do their jobs better, to avoid unnecessary deaths. The very inspiration for these protests was police overreaction, and yet here we are, charging nitwits with terroristic threats. Maybe this is how the NYPD de-escalates situations after all: By corralling elected officials and prosecutors, and letting the city know fear will now be the default. New York needs its cops to keep cooler heads. “Stop resisting” may be practical advice during an arrest, but it makes for contemptible politics.
By: Sam Eifling, The New Republic, December 28, 2014
“It’s Good To Be A Bush”: How The GOP Presidential Candidates Will Talk About Obamacare
One of my favorite factoids from the 2012 presidential race emerged when Mitt Romney released his 2011 tax return. There may not have been much scandalous contained therein, but Romney’s sources of income were so varied and intricate that the return ran to a mind-boggling 379 pages. And it’s starting to appear that Jeb Bush may have a similarly complex financial life, which he’s starting to unravel as he prepares for a potential presidential run. There’s one particularly interesting source of income, as this article in the Los Angeles Times explains:
And on Wednesday, Bush resigned from the board of directors of Tenet Healthcare Corp., also effective Dec. 31, according to a corporate filing. The Dallas-based company actively supported the 2010 Affordable Care Act, and has seen its revenue rise from it, an issue that could draw fire in Republican primaries.
Bush earned cash and stock awards worth nearly $300,000 from Tenet in 2013, according to corporate filings. He also sold Tenet stock worth $1.1 million that year, the records show.
If it’s like other big corporations, the services for which he was paid $300,000 by Tenet probably involved little more than going to a couple of meetings every year. It’s good to be a Bush. But let’s try to imagine the fire he might draw in the primaries over his association with the company. Are politicians from the party of capitalism and business really going to criticize him for making a ton of money, even if it involved the hated Affordable Care Act?
Yeah, they probably will. Which raises the question of exactly how the 2016 GOP candidates are going to address the ACA, which even as it becomes further embedded in our health-care system is still on many Republicans’ minds. Chances are they’re going to talk about it in the most general terms they can, in a discussion that stays at a symbolic level and avoids any specifics.
That’s because there are many more Americans who have a negative view of the ACA as an abstraction than there are who dislike the things it actually does. Members of the public are about evenly split when you just ask them what they think of the law. (In the latest Kaiser Family Foundation poll, 45 percent say we should move forward with the law or expand it, while 43 percent say scale it back or repeal it.) But with the exception of the individual mandate to acquire coverage, the specific provisions of the law are all supported by strong majorities. Even majorities of Republicans support elements such as the creation of the exchanges, the expansion of Medicaid and the provision of subsidies to help people afford insurance.
So if you’re a Republican candidate, you have to seek safe harbor on the terrain of the general and symbolic. Otherwise, you’d end up like Mitch McConnell did during the last campaign, insisting that while he wanted to repeal the ACA “root and branch,” he also wanted to keep almost everything the law does.
At the moment, lots of Republicans remain psychologically trapped in the days right after the problematic rollout of Healthcare.gov convinced them all that the ACA would collapse in a matter of weeks or months. At the time, they could barely contain their glee. As Ramesh Ponnuru and Yuval Levin — widely considered two of the more sober conservatives on issues like these — wrote at the time, “As ObamaCare’s failures and victims mount by the day, Republicans have so far mostly been watching in amazement. They expected the law to fail, but even among its most ardent opponents few imagined the scale and speed of the fiasco.”
Even if that was your honest assessment back then, you’d have to be in the grips of a nearly psychotic level of denial to believe it today. Every result of the law may not be perfect, but it has been an overwhelming success. Just about every prediction Republicans made has turned out false. The economy hasn’t tanked, 10 million people were newly insured even before this year’s open enrollment, premium increases are slowing, overall health costs are slowing, and conservatives looking for specific evidence of the law’s failure don’t quite know what to say.
So criticizing something like the fact that one of your opponents sat on the board of a company that benefited from the ACA offers a way to tell voters that you still hate Obamacare with every fiber of your being — and that opponent obviously doesn’t — without having to talk about what the law has accomplished.
Now let’s imagine something fanciful. What if one of the GOP candidates said something like this:
I opposed Obamacare. I wish it had never passed. But now it has been implemented, and just repealing the whole thing isn’t an option anymore. Too many people are now on either Medicaid or plans they got through the exchanges, and it would be wrong to just toss them off their coverage. And there are some things in the law that both conservatives and liberals support. So here’s a plan to keep what’s right about it and fix what’s wrong about it.
We all assume that if a candidate said that, he’d be condemned by his opponents as a traitor and all Republican voters would turn against him. The former would certainly occur, but the latter might not. He might be able to pull the other candidates into a discussion about the specifics of the law, where — if he were the only one with a plan actually grounded in the real world — he could win the argument.
But the truth is, that’s not too likely. If Romney, whose Massachusetts health insurance reform provided the model for the ACA, could win the nomination just shaking his fist at President Obama and insisting that his reform was nothing like Obama’s — which not a single person, Republican or Democrat, actually believed — then why take that chance? If you’re Jeb Bush, you can leave the board of Tenet and repeat over and over that your loathing for the ACA is as strong as anybody’s. In the primaries at least, that will probably be enough to neutralize the issue.
By: Paul Waldman, Contributing Editor, The American Prospect; Contributing Writer, The Plum Line Blog, The Washington Post, December 26, 2014
“The Choice Is Yours”: Demand That Those Who Ask For Your Vote Stand Up For Choice As Well
December 30, 1994 was the second day of infamy in this country.
That day, a radical anti-abortion activist named John Salvi murdered two employees–Shannon Lowney, 25, and Lee Ann Nichols, 38–at two Planned Parenthood facilities in Brookline, Massachusetts, and shot and wounded five others. He was later apprehended in Norfolk, Virginia after attacking another women’s health clinic.
This domestic terrorist was found guilty of murder in March 1996; he hanged himself in his prison cell just a few months later. (In 1997, his conviction was posthumously vacated on a technicality.)
Salvi was one of many depraved anti-abortion zealots who couldn’t stand the fact that women had the right to choose in this country. As MSNBC’s Rachel Maddow noted earlier this year:
Some of the people who were witnesses to [the Salvi] shooting were people who were there at the clinic working as clinic escorts because of the hostile and intimidating and occasionally violent intense protests that had been happening regularly outside of those clinics.
That day when John Salvi went into the two clinics in Brookline and opened fire and he shot all those people, there were antiabortion protesters right outside the clinic when he did it, as he did it. At the Brookline Planned Parenthood where he killed a 25-year-old receptionist that day, the protesters outside the clinic [attempted] to intimidate people [by] filming everybody as they arrived to work at the clinic, filming people as they arrived to volunteer, filming people who were working as escorts for patients coming into the clinic. And they filmed the patients, themselves, including taking great pains to be seen videotaping their license plates, trying to be very intimidating and very scary to people so they wouldn`t go into that clinic.
But that day when John Salvi got into that clinic and shot it up and he killed the receptionist and wounded other people, as they brought the bodies of the wounded and the killed out of that clinic that day, the antiabortion protesters in the parking lot, they kept filming. They filmed that, too.
I was seventeen years old when the Salvi shooting happened, and it rattled me to the core. Growing up in Massachusetts, I frankly took legal abortion for granted; in the Bay State, even the Republicans were pro-choice (and still are, as it turns out). I was stunned to learn that there were so many folks who were still angry over the Supreme Court’s 1973 Roe v. Wade ruling…so angry that they would actually result to murder in order to effectively overturn the ruling.
As Maddow has noted over the years, the radical anti-abortion movement has seemingly grown stronger and stronger in the years since Salvi’s terrorist attack. Anti-abortion radicalism has also been legitimized in our media: remember Bill O’Reilly’s crusade against Kansas physician George Tiller, a crusade that only ended when Tiller was assassinated in 2009?
Every day that we allow access to legal abortion to be restricted anywhere in this country, we give aid and comfort to these radicals. Every day that we choose not to stand up in absolute defense of a woman’s right to choose, we give another victory to these deranged deviants. Every day that we turn a blind eye to the importance of defending Roe, we help the haters.
The Salvi shootings were a savage signal that a woman’s right to choose is literally under assault in this country. The radical anti-abortion terrorist network in the United States is far more dangerous than ISIS. These people want to murder democracy just as much as they want to murder doctors who provide reproductive services.
We need to defend women’s reproductive rights with renewed intensity in this country. We need to demand that every man and woman we elect pledge allegiance to the sacred right to choose. We need to insist that Roe v. Wade be accorded the same respect we accord to Brown v. Board of Education.
Twenty years ago, my heart broke for Shannon Lowney and Lee Ann Nichols, two bright, beautiful, bold young women who were mercilessly slaughtered by a right-wing fiend who decided to do with a bullet what he could not do with a ballot. Twenty years later, my heart breaks again, because I know I haven’t been as vigilant in defending a woman’s right to choose as I should have been. I know I let choice slip way down on my list of political priorities. I know I didn’t remember their heroism and their legacy.
Although they are gone, felled by a fanatic, I apologize to Shannon Lowney and Lee Ann Nichols for not being as vigilant as I should have been in defending a woman’s right to choose. I ask their families for forgiveness. I promise that I will stand up for choice, and I will demand that those who ask for my vote stand up for choice as well.
By: D. R. Tucker, Political Animal Blog, The Washington Monthly, December 27, 2014
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