Law School Discussion

Law Students => Current Law Students => Topic started by: 🍟💵🌲🍥 on December 22, 2015, 11:28:31 AM

Title: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 22, 2015, 11:28:31 AM
http://www.csmonitor.com/USA/Justice/2015/1221/Why-the-Mall-of-America-is-suing-Black-Lives-Matter-protesters-video


Its been a few years since I was in conlaw, but weren't there cases that already said malls are defacto public places??
Title: Re: Use of a mall as a public place for protests
Post by: loki13 on December 22, 2015, 12:51:39 PM
http://www.csmonitor.com/USA/Justice/2015/1221/Why-the-Mall-of-America-is-suing-Black-Lives-Matter-protesters-video


Its been a few years since I was in conlaw, but weren't there cases that already said malls are defacto public places??

No. See, inter alia, Hudgens v. National Labor Relations Board. But see California (which has a specific protected right for malls, because of course California does). 
Title: Re: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 22, 2015, 01:22:29 PM
There was a case where people WON the right to protest in the malls (I just cant recall which one it was)
-Oh well, based on the CA specific laws you mentioned, how do you think this case will turn out?
I can't imagine any elected/or even appointed by an elected official, judge will want to rule against BLM

Stuff like this is why Supreme Court has to be appointed for life. Can you imagine the lynchmob that would out for Scalia otherwise??
Title: Re: Use of a mall as a public place for protests
Post by: loki13 on December 22, 2015, 01:28:48 PM
The case will turn out badly for the protesters.

They can protests outside the mall (so long as it is far enough outside to be public property). But the mall itself is private property. They can no more chose to protest there than they can in your house - they'd be subject to the same laws (trespass, etc.). Minnesota has no analogous laws to California.

I would also note that while this Court is, arguably, at the apex of Free Speech protection, it is close to the lowest in terms of protecting public forums (vis-a-vis the distinction between state and private actors). This doesn't seem very interesting from a ConLaw perspective- maybe back in the 60s.
Title: Re: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 22, 2015, 02:09:42 PM
The case will turn out badly for the protesters.

They can protests outside the mall (so long as it is far enough outside to be public property). But the mall itself is private property. They can no more chose to protest there than they can in your house - they'd be subject to the same laws (trespass, etc.). Minnesota has no analogous laws to California.

I would also note that while this Court is, arguably, at the apex of Free Speech protection, it is close to the lowest in terms of protecting public forums (vis-a-vis the distinction between state and private actors). This doesn't seem very interesting from a ConLaw perspective- maybe back in the 60s.
From a PURELY conlaw perspective I could see it as being "not very interesting" but as a public hysteria pumped up by the media, with the "lets burn the whole town down" mentality (a very real reality as the not very distant past has shown us) situation, it will be interesting to see what happens.

I mean, look at how scared people were to even ask people to stop going full retard on innocent brunchers in situations like this:  http://www.thegatewaypundit.com/2015/01/racist-black-protesters-target-white-people-eating-brunch-at-new-york-city-restaurants/ 
Title: Re: Use of a mall as a public place for protests
Post by: Maintain FL 350 on December 22, 2015, 06:00:47 PM
The case will turn out badly for the protesters.

They can protests outside the mall (so long as it is far enough outside to be public property). But the mall itself is private property. They can no more chose to protest there than they can in your house - they'd be subject to the same laws (trespass, etc.). Minnesota has no analogous laws to California.

I would also note that while this Court is, arguably, at the apex of Free Speech protection, it is close to the lowest in terms of protecting public forums (vis-a-vis the distinction between state and private actors). This doesn't seem very interesting from a ConLaw perspective- maybe back in the 60s.

Yes, that sounds right.

I'm drawing on conlaw that I haven't studied in several years, but I seem to remember that the "mall case" had to do with an outdoor, uncovered shopping center. An indoor covered mall is significantly different, if for no other reason that it's more difficult for shoppers to avoid noisy protestors if they don't want to be subjected to obnoxious chanting and ridicule.

The parking lot and sidewalk in front of the mall may be different, but inside is clearly private property.
Title: Re: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 22, 2015, 06:13:42 PM
The case will turn out badly for the protesters.

They can protests outside the mall (so long as it is far enough outside to be public property). But the mall itself is private property. They can no more chose to protest there than they can in your house - they'd be subject to the same laws (trespass, etc.). Minnesota has no analogous laws to California.

I would also note that while this Court is, arguably, at the apex of Free Speech protection, it is close to the lowest in terms of protecting public forums (vis-a-vis the distinction between state and private actors). This doesn't seem very interesting from a ConLaw perspective- maybe back in the 60s.

Yes, that sounds right.

I'm drawing on conlaw that I haven't studied in several years, but I seem to remember that the "mall case" had to do with an outdoor, uncovered shopping center. An indoor covered mall is significantly different, if for no other reason that it's more difficult for shoppers to avoid noisy protestors if they don't want to be subjected to obnoxious chanting and ridicule.

The parking lot and sidewalk in front of the mall may be different, but inside is clearly private property.
If it was ANY USUAL mall I'd be more inclined to believe that, BUT they are assuming the "regular state duties" in a lot of ways. Remember the cases with the privately owned towns? This is pretty much that. The place is HUGE, with full time residents living inside of it, STATE PAID police/post office/etc. It feels like a private town to me.
Title: Re: Use of a mall as a public place for protests
Post by: loki13 on December 23, 2015, 08:17:25 AM
The case will turn out badly for the protesters.

They can protests outside the mall (so long as it is far enough outside to be public property). But the mall itself is private property. They can no more chose to protest there than they can in your house - they'd be subject to the same laws (trespass, etc.). Minnesota has no analogous laws to California.

I would also note that while this Court is, arguably, at the apex of Free Speech protection, it is close to the lowest in terms of protecting public forums (vis-a-vis the distinction between state and private actors). This doesn't seem very interesting from a ConLaw perspective- maybe back in the 60s.

Yes, that sounds right.

I'm drawing on conlaw that I haven't studied in several years, but I seem to remember that the "mall case" had to do with an outdoor, uncovered shopping center. An indoor covered mall is significantly different, if for no other reason that it's more difficult for shoppers to avoid noisy protestors if they don't want to be subjected to obnoxious chanting and ridicule.

The parking lot and sidewalk in front of the mall may be different, but inside is clearly private property.
If it was ANY USUAL mall I'd be more inclined to believe that, BUT they are assuming the "regular state duties" in a lot of ways. Remember the cases with the privately owned towns? This is pretty much that. The place is HUGE, with full time residents living inside of it, STATE PAID police/post office/etc. It feels like a private town to me.

Doesn't matter. You have to look at the arc of ConLaw. The case you're thinking of was from the 1940s, and it involved a corporation owning all aspects of a town (a town being the quintessential example of an accountable state actor) . The state-actor doctrine is a confused mess since then, but has been steadily whittled away (see the contrasting decisions in Tarkanian and Brentwood). Moreover, there is precedent from a much more sympathetic Supreme Court that is directly on point.

To be honest, I don't even know that company towns, to the extent that they exist, would be labeled as state actors- there was litigation over Disney's "ownership" of towns and political subdivisions in Florida (pursuant to deal with the state, Disney and its employees control all political decisions) that determined that the corporate entity was not a state actor.

Title: Re: Use of a mall as a public place for protests
Post by: Maintain FL 350 on December 23, 2015, 12:57:01 PM
If it was ANY USUAL mall I'd be more inclined to believe that, BUT they are assuming the "regular state duties" in a lot of ways. Remember the cases with the privately owned towns? This is pretty much that. The place is HUGE, with full time residents living inside of it, STATE PAID police/post office/etc. It feels like a private town to me.

Let's not get lost in the weeds here.

There is NO WAY that the current Supreme Court is going to consider the Mall of America as a company town or state actor. Not even close. The company town cases are fairly old and obscure, and the level of control exerted by the parent corporation was far, far beyond anything that Mall of America is engaging in.

The mall is simply private property, open to the public for commercial retail purposes. Can you really imagine that there are five justices who will say "Yeah, we think that the mall is essentially a state actor even though it's private property, and BLM has the right to disrupt commerce." Who would be that fifth vote? Kennedy?

No, as Loki stated, this will end badly for the protestors.
Title: Re: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 23, 2015, 07:38:42 PM
If it was ANY USUAL mall I'd be more inclined to believe that, BUT they are assuming the "regular state duties" in a lot of ways. Remember the cases with the privately owned towns? This is pretty much that. The place is HUGE, with full time residents living inside of it, STATE PAID police/post office/etc. It feels like a private town to me.

Let's not get lost in the weeds here.

There is NO WAY that the current Supreme Court is going to consider the Mall of America as a company town or state actor. Not even close. The company town cases are fairly old and obscure, and the level of control exerted by the parent corporation was far, far beyond anything that Mall of America is engaging in.

The mall is simply private property, open to the public for commercial retail purposes. Can you really imagine that there are five justices who will say "Yeah, we think that the mall is essentially a state actor even though it's private property, and BLM has the right to disrupt commerce." Who would be that fifth vote? Kennedy?

No, as Loki stated, this will end badly for the protestors.
Supreme Court? Maybe not. But you know there are a few steps inbetween right?
Title: Re: Use of a mall as a public place for protests
Post by: loki13 on December 24, 2015, 07:33:03 AM
If it was ANY USUAL mall I'd be more inclined to believe that, BUT they are assuming the "regular state duties" in a lot of ways. Remember the cases with the privately owned towns? This is pretty much that. The place is HUGE, with full time residents living inside of it, STATE PAID police/post office/etc. It feels like a private town to me.

Let's not get lost in the weeds here.

There is NO WAY that the current Supreme Court is going to consider the Mall of America as a company town or state actor. Not even close. The company town cases are fairly old and obscure, and the level of control exerted by the parent corporation was far, far beyond anything that Mall of America is engaging in.

The mall is simply private property, open to the public for commercial retail purposes. Can you really imagine that there are five justices who will say "Yeah, we think that the mall is essentially a state actor even though it's private property, and BLM has the right to disrupt commerce." Who would be that fifth vote? Kennedy?

No, as Loki stated, this will end badly for the protestors.
Supreme Court? Maybe not. But you know there are a few steps inbetween right?

Wait. I just want to make sure I understand your position from a practice perspective.

You think that a trial court, and then a CoA, is more likely to follow a 1940-something case that is not on point, and represents the (arguably) largest expansion of the state-actor doctrine, and which has since *not* been followed by the lower courts in similar situations, over more recent Supreme Court precedent which is *directly* on point, on the subject of malls, and specifically states that they are not state actors? And they would do so in an environment which, overall, is incredibly hostile to *any* expansion of the state actor doctrine?

This is (roughly) analogous to someone, today, arguing that despite the caselaw, they believe that the Flast standing exception would likely be expanded to a different area of the law to allow taxpayer standing for any type of suit, despite the fact that Flast has been whittled away (see, inter alia, Valley Forge).

There is something, also, to be said for reliance issues; those states (California, and, I believe, maybe New Jersey?) that want to specifically enact laws regarding malls have done so. But private actors are not state actors for a reason. If the state wants to regulate a private actor, it can easily do so- but private actors are, by an large, not subject to the same rules as a state actor vis-a-vis the Constitution (with exceptions, such as the 13th Am.).
Title: Re: Use of a mall as a public place for protests
Post by: 🍟💵🌲🍥 on December 24, 2015, 10:35:48 AM
I'm saying that local courts are idiots and do whatever the hell they want
Title: Re: Use of a mall as a public place for protests
Post by: Maintain FL 350 on December 28, 2015, 01:00:52 PM
Supreme Court? Maybe not. But you know there are a few steps inbetween right?

Of course you're right, and I should have been clearer in my approach.

What I mean is that the Mall of America scenario is so far from meeting the "state actor" definition, that only a reversal by the SC would offer any hope for the protestors.

Simply having public law enforcement officers patrolling the mall, having people live there (for what?), and even taking on a few other public functions is not sufficient to convert a mall into a state actor. If that were the case, every stadium in America would be a state actor. So would Radio City Music Hall. Not gonna happen. It would be blatantly unconstitutional.

Could a lower court do whatever it wants and ignore the law? Sure, and they'd be quickly smacked down on appeal.   
Title: Re: Use of a mall as a public place for protests
Post by: loki13 on December 28, 2015, 01:51:34 PM
Supreme Court? Maybe not. But you know there are a few steps inbetween right?

Of course you're right, and I should have been clearer in my approach.

... [snip] ...

Could a lower court do whatever it wants and ignore the law? Sure, and they'd be quickly smacked down on appeal.

I think you were perfectly clear. Now, I completely agree that lawyers should always couch there answer in terms of probabilities (like the guy who wanted a one-armed attorney, because he was tired of hearing, "But on the other hand..."). But when we're discussing issues here, it's not very helpful to state things, when they are as definitive as this, with the constant caveat, "Well, sure, a trial court could completely ignore Supreme Court precedent that is 100% on point, and that was from a much more liberal time, and just decide to stick it to the Mall, 'cuz."

Not because that's impossible (every good attorney knows a few cases where judged have ignored, forgotten about, or disregarded binding precedent), but because of the extreme unlikelihood. It's hard enough to have a decent legal conversation without trying to account for crazy trial court judges. ;)
Title: Re: Use of a mall as a public place for protests
Post by: Maintain FL 350 on December 28, 2015, 07:46:43 PM
Agreed, I was merely responding to Trinitite's earlier post.

This would be like someone saying that Dodger Stadium is a state actor because LAPD patrols the parking lot, and county inspectors occasionally check up on the corndog guy. Not gonna happen. 
Title: Re: Use of a mall as a public place for protests
Post by: Maintain FL 350 on December 29, 2015, 09:06:11 PM
In my experience, trial court judges follow the law 99% of the time. They usually lay down entirely predictable opinions, even when you really hope that they'll stretch it just a little bit in your favor. Nobody likes to get reversed on appeal.