“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
“If Money Is Speech And Speech Is Freedom…”: Those With Less Money Get Less Freedom, Less Speech, Less Representation
If money is speech and speech is freedom, then it follows that those who have more money will have more freedom.
This includes the freedom to determine who gets to vote, the freedom to dictate how much workers are paid, and the freedom to impose their agenda regardless of public opinion.
It also follows that those with less money will have less freedom, less speech, and less representation.
These are the basic tautologies in logic that Conservatives refuse to address. By equating freedom with money, the Party That Loves Liberty and Freedom is actually reducing the liberty and freedom of the vast majority of Americans. Yet when the majority of Senators tried to correct this problem, obstructionist Senate Republicans killed the proposal with a filibuster. Conservatives accused the Democrats who supported the proposal of trying “to radically shrink First Amendment protection of political speech.”
Constitutional guarantees of free speech, it turns out, are only available for those who can afford to pay.
Bloviating pundits notwithstanding, speech is not an infinite resource. There are only so many radio and television ads that can be sold; only so many prime time hours; only so many websites. Perhaps the most finite of all resources is the attention span of voters. Once these resources have reached their full capacity, there is no room left. Other voices and ideas are simply unheard, no matter how brilliant, valuable, or vote-worthy they might be. Television stations cannot squeeze in one more commercial. Voters will not sit through another political ad.
In the war of voter attrition, the Koch brothers are winning.
The problem is exacerbated by judges that believe that political ads are not required to tell the truth. Politicians and the PACs that suppport them have the freedom to create a lie and to overpower any opposition to it, including opposing views that are based on actual facts. It’s a perfect propaganda machine.
Voter fatigue translates into skewed election results. Once in office, politicians rewrite election laws, gerrymander Congressional districts, and take other actions to ensure that their donors are rewarded and that they and their party remain in power. Laws that can’t be changed through legislation are manipulated through the budget process. New ideas are allowed to die despite having strong public approval. 92 percent of Americans think that requiring a background check before someone can buy a gun is a good idea. 72 percent of Americans support raising the minimum wage. Yet these and other popular ideas are routinely killed by a minority of Senators who represent a minority of voters.
Let’s be honest. Citizens United and the closely related McCutcheon were not about increasing freedom of speech. Both were 5-4 decisions from a Conservative majority and are about ensuring political control in the face of changing voter preferences. Both cases are about drowning out any opposition.
Which brings us to Net Neutrality. If money equals freedom, then startup companies and small businesses that have less money will have less freedom. This means, among other things, less freedom for innovation, less freedom for commerce, and less freedom of speech. The end of the Net Neutrality means a decline in the quality of service for everyone who uses the Internet. Ultimately, it is one step closer to the end of discussion, debate, and democracy.
Sir Tim Berners-Lee, the inventor of the World Wide Web portion of the Internet, envisioned and still supports an open and inclusive web. Conservatives are on record as opposing this freedom. Instead, they prefer a “free market approach” that will do to the Internet what Citizens United has done to political campaigns. American media is already dominated by an oligarchy of just six companies. Independent media outlets and commentators already face enormous challenges as they struggle to be heard. Banishing these websites to the slow lane of the Internet would mean less freedom, not more.
Free speech cannot exist when those without money are shut out of the conversation. Democracy, in political ads and on media websites, requires a diversity of legitimate ideas, not simply the repetition of the same biases and misinformation.
Instead of asking why Democrats oppose unchallenged speech for a few, the better question is to ask why so many in Washington seem to oppose freedom for all.
By: Bob Seay, Editor, NewsPrism.com; The Huffington Post Blog, September 15, 2014
“Donors Before Constituents”: The First Amendment, According To Mitch McConnell
Have you heard that Senate Democrats are working this week to repeal free speech?
I did, yesterday morning, from Mitch McConnell.
Have you heard that Democrats are going to go out and “muzzle” pastors who criticize them in the pulpit?
We did, from Ted Cruz.
Did you hear that Democrats are going to shut down conservative activists and then “brainwash the next generation into believing that this is how it should be”?
We did, last month, from the Family Research Council’s Tony Perkins.
A good rule of thumb in politics is that the scarier someone sounds, the more you should doubt what they’re saying. Another good rule in politics is not to trust what Mitch McConnell says about money in politics.
Because, yes, that’s what we’re talking about here. Not a secret new Orwellian regime. Not a new anti-pastor task force. What we’re talking about is simply limiting the amount of money that corporations and wealthy individuals can spend to influence our elections.
This week, the Senate is debating a constitutional amendment that would overturn recent Supreme Court decisions that have paved the way for an explosion of big money in politics. In those decisions, including Citizens United and this year’s McCutcheon, the Supreme Court radically redefined the First Amendment to allow corporations and the wealthy to drown out the speech of everyday Americans with nearly unlimited political spending. The Democracy for All amendment would restore to Congress and the states the power to impose reasonable restrictions on money in politics, just as they had before the Supreme Court started to dismantle campaign finance laws.
So, what are Mitch McConnell and Ted Cruz so scared of?
In fact, it wasn’t that long ago that Mitch McConnell supported the very laws that he is now dead-set on blocking. Back in 1987, McConnell said he would support a constitutional amendment to allow Congress to regulate independent expenditures in elections — just as the Democracy for All amendment would. And then he introduced that very constitutional amendment. Either McConnell has dramatically changed his mind regarding what constitutes a threat to the First Amendment, or he’s motivated by something more cynical.
So, if Mitch McConnell doesn’t actually think that limiting the amount of money that wealthy interests can spend on elections is a violation of the First Amendment, what is he up to? Could it be that he now finds it more useful to court the dollars of major donors than the votes of his constituents?
Washington is the only place where campaign finance reform is a partisan issue. A poll this summer found that 73 percent of voters support a constitutional amendment to get big money out of politics. Americans know that our First Amendment is about protecting the speech of citizens, not the interests of wealthy campaign donors.
Faced with a large, bipartisan grassroots movement that threatens their big-spending friends, the only arguments that Mitch McConnell and Ted Cruz have left are wild accusations, flat-out falsehoods, and outlandish interpretations of the Bill of Rights.
By: Michael B. Keegan, The Huffington Post Blog, September 9, 2014
“Paying Back Campaign Donors”: Whose Presidential Campaign Will Your Pension Finance?
Wall Street is one of the biggest sources of funding for presidential campaigns, and many of the Republican Party’s potential 2016 contenders are governors, from Chris Christie of New Jersey and Rick Perry of Texas to Bobby Jindal of Louisiana and Scott Walker of Wisconsin. And so, last week, the GOP filed a federal lawsuit aimed at overturning the pay-to-play law that bars those governors from raising campaign money from Wall Street executives who manage their states’ pension funds.
In the case, New York and Tennessee’s Republican parties are represented by two former Bush administration officials, one of whose firms just won the Supreme Court case invalidating campaign contribution limits on large donors. In their complaint, the parties argue that people managing state pension money have a First Amendment right to make large donations to state officials who award those lucrative money management contracts.
With the $3 trillion public pension system controlled by elected officials now generating billions of dollars worth of annual management fees for Wall Street, Securities and Exchange Commission (SEC) regulators originally passed the rule to make sure retirees’ money wasn’t being handed out based on politicians’ desire to pay back their campaign donors.
“Elected officials who allow political contributions to play a role in the management of these assets and who use these assets to reward contributors violate the public trust,” says the preamble of the rule, which restricts not only campaign donations directly to state officials, but also contributions to political parties.
In the complaint aiming to overturn that rule, the GOP plaintiffs argue that the SEC does not have the campaign finance expertise to properly enforce the rule. The complaint further argues that the rule itself creates an “impermissible choice” between “exercising a First Amendment right and retaining the ability to engage in professional activities.” The existing rule could limit governors’ ability to raise money from Wall Street in any presidential race.
In an interview with Bloomberg Businessweek, a spokesman for one of the Republican plaintiffs suggested that in order to compete for campaign resources, his party’s elected officials need to be able to raise money from the Wall Street managers who receive contracts from those officials.
“We see (the current SEC rule) as something that has been a great detriment to our ability to help out candidates,” said Jason Weingarten of the Republican Party of New York—the state whose pay-to-play pension scandal in 2010 originally prompted the SEC rule.
The suit comes only a few weeks after the SEC issued its first fines under the rule—against a firm whose executives made campaign donations to Pennsylvania Gov. Tom Corbett, a Republican, and Philadelphia Mayor Michael Nutter, a Democrat. The company in question was managing Pennsylvania and Philadelphia pension money. In a statement on that case, the SEC promised more enforcement of the pay-to-play rule in the future.
“We will use all available enforcement tools to ensure that public pension funds are protected from any potential corrupting influences,” said Andrew Ceresney, director of the SEC Enforcement Division. “As we have done with broker-dealers, we will hold investment advisers strictly liable for pay-to-play violations.”
The GOP lawsuit aims to stop that promise from becoming a reality. In predicating that suit on a First Amendment argument, those Republicans are forwarding a disturbing legal theory: Essentially, they are arguing that Wall Street has a constitutional right to influence politicians and the investment decisions those politicians make on behalf of pensioners.
If that theory is upheld by the courts, it will no doubt help Republican presidential candidates raise lots of financial-industry cash—but it could also mean that public pension contracts will now be for sale to the highest bidder.
By: David Sirota, Senior Editor, In These Times, August 15, 2014
“Is Corruption A Constitutional Right?”: Public Pension Contracts Would Be For Sale To The Highest Bidder
Wall Street is one of the biggest sources of funding for presidential campaigns, and many of the Republican Party’s potential 2016 contenders are governors, from Chris Christie of New Jersey and Rick Perry of Texas to Bobby Jindal of Louisiana and Scott Walker of Wisconsin. And so, last week, the GOP filed a federal lawsuit aimed at overturning the pay-to-play law that bars those governors from raising campaign money from Wall Street executives who manage their states’ pension funds.
In the case, New York and Tennessee’s Republican parties are represented by two former Bush administration officials, one of whose firms just won the Supreme Court case invalidating campaign contribution limits on large donors. In their complaint, the parties argue that people managing state pension money have a First Amendment right to make large donations to state officials who award those lucrative money management contracts.
With the $3 trillion public pension system controlled by elected officials now generating billions of dollars worth of annual management fees for Wall Street, Securities and Exchange Commission regulators originally passed the rule to make sure retirees’ money wasn’t being handed out based on politicians’ desire to pay back their campaign donors.
“Elected officials who allow political contributions to play a role in the management of these assets and who use these assets to reward contributors violate the public trust,” says the preamble of the rule, which restricts not only campaign donations directly to state officials, but also contributions to political parties.
In the complaint aiming to overturn that rule, the GOP plaintiffs argue that the SEC does not have the campaign finance expertise to properly enforce the rule. The complaint further argues that the rule itself creates an “impermissible choice” between “exercising a First Amendment right and retaining the ability to engage in professional activities.” The existing rule could limit governors’ ability to raise money from Wall Street in any presidential race.
In an interview with Bloomberg Businessweek, a spokesman for one of the Republican plaintiffs suggested that in order to compete for campaign resources, his party’s elected officials need to be able to raise money from the Wall Street managers who receive contracts from those officials.
“We see [the current SEC rule] as something that has been a great detriment to our ability to help out candidates,” said Jason Weingarten of the Republican Party of New York — the state whose pay-to-play pension scandal in 2010 originally prompted the SEC rule.
The suit comes only a few weeks after the SEC issued its first fines under the rule — against a firm whose executives made campaign donations to Pennsylvania governor Tom Corbett, a Republican, and Philadelphia mayor Michael Nutter, a Democrat. The company in question was managing Pennsylvania and Philadelphia pension money. In a statement on that case, the SEC promised more enforcement of the pay-to-play rule in the future.
“We will use all available enforcement tools to ensure that public pension funds are protected from any potential corrupting influences,” said Andrew Ceresney, director of the SEC Enforcement Division. “As we have done with broker-dealers, we will hold investment advisers strictly liable for pay-to-play violations.”
The GOP lawsuit aims to stop that promise from becoming a reality. In predicating that suit on a First Amendment argument, those Republicans are forwarding a disturbing legal theory: Essentially, they are arguing that Wall Street has a constitutional right to influence politicians and the investment decisions those politicians make on behalf of pensioners.
If that theory is upheld by the courts, it will no doubt help Republican presidential candidates raise lots of financial-industry cash — but it could also mean that public pension contracts will now be for sale to the highest bidder.
By: David Sirota, Staff Writer at PandoDaily; The National Memo, August 15, 2014
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