In the span of just a few months, the Mall of America (MOA) became the center of two debates regarding peoples’ rights in quasi-public spaces. On December 20th, 2014 the Black Lives Matter (BLM) organization staged a protest in the MOA rotunda:
If you’re unaware of the whole issue, bone up here. Specious allegations that masses of people in the rotunda disrupt shoppers aside, BLM was warned in advance by the mall. The MOA even graciously offered up a parking lot far from where people can see or hear their message. I guess I wasn’t shocked Black Lives Matter didn’t take them up on the offer. In response to the illegal actions of the protesters, 10 members may face charges from the City of Bloomington. It should be noted that, from a strictly legal point of view, the right to protest at the Mall of America has already been weighed by the MN Supreme Court. Despite tax increment financing and other public bone moneys used to improve the site and build infrastructure to serve it, the public is not granted right to free assembly as the MOA is still a private place of business.
A quick perusal of the (always-enlightening) comment sections of any article or Facebook post showed some considerable vitriol toward the protesters – the odds they may inflict bodily harm on other shoppers, their disturbance to the shopping experience during the busiest time of the year, the mall’s clear legal right to restrict free speech and assembly, to say nothing of some more insidious comments about race and BLM’s overarching mission. I distinctly remember questioning whether these exact folks would stand behind the MOA’s right as a private entity to ban guns on its premises.
Fast forward to February 2015. The Mall of America falls victim to a terrorist threat on Sunday, February 23, which may or may not have been credible. State of Minnesota Representative Tony Cornish (R, Vernon Center), a strong gun rights advocate, came out in strong opposition of the MOA’s policy banning guns.
Rep. Cornish’s logic follows the landlord/tenant/guest clause of MN Statute 624.714, Subdivision 17(e). I’m no lawyer, but this seems to be a clear continuation of the residential discussion in the sub-section (d) right above it, or at the very least the legislative intent seems reasonably clear.
As you might expect, this particular discussion of guns brought out a metric grip-ton of comments and social media shares. I have no direct proof, but again I would wager a strong bet that gun proponents commenting and sharing would tend to be the type of people disparaging the BLM protesters. The same is true the other way around – many folks I know who attended the MOA protest or supported it think the MOA is entirely within its right to ban guns.
Talking Past Each Other
Is an unused parking lot 100% exchangeable for a place with thousands of humans who might actually pay attention owing to slight inconvenience? Why was the MOA fine with a protest on their private parking lot but not in the mall itself? Are there real-world implications for building places with private security that now act as the social gathering places once handled by town squares, prominent parks, street-fronting retail districts, and more?
I don’t think anyone is advocating every private structure be forced to allow any assembly by any group, but we have to acknowledge the deterioration of the number, quality, and proximity to people of our public spaces today as a direct result of a few private sector businesses, and that this most likely has a negative effect on a healthy democracy. To top it all off, this definitely applies for malls receiving (continued) public subsidy. That’s the argument, at least (one I subscribe to, for the record).
On the flip side, many in support of conceal-and-carry at the MOA are arguing from a stance of how the law should apply to them regarding bearing arms as a right of personal protection (those with a loose grip on legislative intent notwithstanding), while gun control activists are more than happy to defer to current statute. We could argue whether or not you’re more safe carrying a gun than without one. In my opinion, you’re not, but just like we all believe we’re above average drivers, so too do gun owners think they’re less likely to injure themselves or others.
It’s obvious that political ideologies are at play in forming opinions about what activity is tolerable in public spaces, or even what should be considered “public” in the first place. Both sides could reasonably accuse the other side of hypocrisy. While neither has the law on the side of their current viewpoint, both believe they have the moral right to advocate for change based on personal beliefs shaped by a mix of science and perceived social good. Public space advocates see the harm done by a potential accident (no matter how unlikely) from a “good guy with a gun” as immensely worse than the impacts from free assembly. Gun rights advocates believe the slow trickle of inconvenience and loss of business is worse than the potential errant bullet or inability to defend oneself from a terror attack (no matter how unlikely).
How do we reconcile these differences, especially when no one directly engages with one another?
There are so many topics where this problem rears its head – the right to road space for different modes, the value of subsidized transit (and roads), how many parks should we have, the benefits/drawbacks of new construction in existing neighborhoods, etc. We need to identify more productive ways to have these conversations rather than simply talking past each other.
The issue of public access to private shopping malls has been a transit battleground for a long time. Certain mall owners have often tried to evict public transit buses from their property, or, in later years, prevent Metro Transit from building formal transit centers on their property. This happened at Brookdale (before it closed), Maplewood Mall and, most recently, Rosedale. The Mall of America initially tried to keep LRT out of the east parking ramp, which it owns.
Transit operators try to co-locate suburban transit centers with major retail, in order to combine destination ridership with transfers between buses. Suburban riders are hard to attract, and co-location is the best available strategy. Mall owners resist because they see this as an uncompensated taking of public property. Some also stereotype transit riders as undesirables and want to prevent “those people” from accessing their property.
Transit operators have three options available to them to counter this opposition.
1. Buy adjacent property if it’s not too far from the mall entrance. That’s what happened at Maplewood Mall, where an adjacent movie theater closed and the site was available.
2. Hope the city will intervene on behalf of transit. That’s what happened recently at Southdale, where the city made financial assistance to the mall contingent on acceptance of a new transit center. The Roseville city council forced Rosedale to accept a transit center, but the lease has a limited life and it may get kicked out in the future.
3. The transit agency can take the property by eminent domain. This is a last resort, is politically controversial and hasn’t happened to date.
The network of transit centers is pretty much complete, so I don’t anticipate new fights like this in the future.
Is there any way to do #4: demonstrate to the malls that it’s in their financial interest to be accessible via transit?
If there’s a difference (and I don’t know that there is) it’s that a guy concealing and carrying with no one the wiser isn’t disruptive to other shoppers or mall businesses like a loud obnoxious protest.
How do you distinguish between a loud obnoxious protest and a peaceful unobtrusive one?
What seems to have been primarily disruptive of shopping that day was the mall shutting large portions of itself down and arraying riot police around a group that was barely larger than the number of people typically in the rotunda anyway.
Also, is there a time when the MOA isn’t loud and filled with obnoxious people?
I remember one time back when I was in college. A few friends and I may have consumed some substances and took a trip to the MOA from apartments close to Normandale. We purchased those 3D bug-eye glasses from a novelty store and walked around yelling “boo!” and other stuff, I suppose, at random people.
I don’t know why we weren’t arrested for disrupting business or committing an act of terror, but we were left alone.
As I tried to get at, the difference is perceptions. Gun control advocates/Pro-assembly side: “Someone concealing and carrying is one misfire or poor judgment away from injuring or killing someone else, whereas a bunch of loud protesters is a slow, relatively non-harmful event.” Gun rights advocates/anti-assembly in private spaces side: “A group of protesters is one angry comment or poor judgment away from the entire thing erupting into a violent event, whereas a bunch of conceal and carriers, on the whole, represent a very safe group who rarely do anything harmful to others.”
There’s a LOT of similarity in those mindsets, just completely opposing.
A major issue in suburbia is that there *is* no downtown or “main street” for protests let alone other exercises of free speech for people to use: the private mall is all there is in some cases, especially where no town center exists only to have been engulfed by sprawl.
Yes. Some may not view this as a problem. I suspect that there are many folks out there to whom our current ‘system’ works pretty well: if you own a private house with a sizable yard, two cars, have decent paying jobs, have never faced systemic prejudice, etc etc etc. If that’s you, you probably don’t feel the need for good public spaces that promote healthy exchange of ideas and the ability to influence change (or at least have your voice heard in a meaningful way), and you’re probably comfortable with the privatization of those type of places that members of society get together to shop, eat, play, socialize, etc. Maybe some of the issues others might bring up make you uncomfortable and you’re glad the [mall, airport, big box store, whatever] doesn’t allow those assemblies. (using the general ‘you’ here)
Like I said in the post, it’s not the government’s job to ensure every piece of private property allows for free assembly and free speech. But there’s somewhere in between “every piece of land is privately owned” and “every piece of land must allow trespassing and free speech” that fits the bill of a healthy democracy better than the path we’ve gone down.
Thanks for the comment. From the post “I don’t think anyone is advocating every private structure be forced to allow any assembly by any group, but we have to acknowledge the deterioration of the number, quality, and proximity to people of our public spaces today as a direct result of a few private sector businesses”
I’m confused by your position. You state: “This isn’t a zero-sum game”
But then state “Just look at how downtown Saint Paul used to be the department store center of the Twin Cities, and now there isn’t even one anymore.”
Every issue isn’t an urbanism issue. But on this front, it seems to play a big role. It’s a tough argument to say that catering to the automobile (from cutting neighborhoods off from one another via freeway construction to the scale/distance destinations are from one another) has had a causal relation to the loss of:
1) streets as public spaces (for anyone outside an automobile)
2) sidewalk life/usage
3) importance/quality of public parks/plazas
Could places like malls exist in their scale/design without the near-ubiquity of driving? Are you saying malls (and other similar private spaces like skyways) are now providing 0% of the function that streets/plazas/town centers used to provide? If not, how much have they cannibalized?
I would hazard that this can be applied to downtown Saint Paul and Minneapolis skyways also. And there, the benefits do become (more of) a zero-sum game. There are only so many pedestrians, only so much reason to be out walking, if 100 people walk in the skyways that is removing some trips from what would have been taken on the sidewalk.
In Minneapolis’s privatized skyway system these protests would have 0 standing to inconvenience office workers.
The purpose of protest is to engage, often by making people uncomfortable. The loss of of public spaces (that people actually use) is driven by powerful forces, primarily the rise of corporate power and the use of automobiles (a private domain) as our dominant transportation technology.
These phenomena are not new, not nearly enough has been written about how the loss of public spaces has damaged our democracy. Civil protest in cities is still possible, but most people live and work in landscapes where the only public spaces are roads and freeways. One of the interesting strategies of the Black Lives Matter protests has been the invasion of freeway spaces.
A geography PhD thesis at Berkeley (1983 or ’84) studied why large Bay area companies were moving their back office operations out of downtown SF to suburban locations. The author interviewed company executives who explained they were moving because the City lacked large enough office spaces. A review of leasing data showed office spaces that fit the claimed corporate requirements were widely available in three locations in the region: downtown SF, downtown Oakland, and suburban Contra Costa County. But all the offices were being located in suburban Contra Costa County. Why?
After moving to Contra Costa County the nature of the workforce changed:
1) The labor market in Contra Costa County allowed work to be performed by part-time employees while in SF the workers had been full-time (union) workers;
2) the built environment contributed to the disappearance of unions because in the City union organizing (and pickets) could interact with workers as they entered and left the buildings, while in the suburbs workers arrived by auto and got in and out of their autos too far away from organizers and picketers (who were restricted to public streets and sidewalks far away from the parking lots on the corporate campuses).
I wonder if there are any unionized employees at MOA?
This, so much this. The suburban auto-centric development model destroyed even the concept of a town square where ideas were shared and exchanged and diverse groups interacted regularly. The isolation of low density development has led to a whole new wave of intolerance and prejudice for anyone different (which I guess is fitting since suburbs really took off in the first place thanks to the white flight of racists and extremely prejudicial housing policies). Now the closest thing we have is the internet and cable news where we can curate and select what we see and interact with, further distancing ourselves from any dissenting voices and pushing anything outside of our comfort zone into ‘otherness.’
Basically the suburbs destroyed any possibility of productive public discourse and led to our current ridiculously-polarized government.
I think it would be pretty easy to differentiate between the myriad of tax schemes we all benefit from (mortgage interest deduction, standard deductions, deductions for charitable giving) and benefits that are explicitly written into law. If everybody got government backed bonds and money to build a parking spot at their house, as well as a say in the design of the street outside our houses (without having to pay for it) it’d be a different case. I think the Mall pretty clearly receives tax benefits on a totally different level from the average individual.
All that said, none of the things I mention above that most people can benefit from involve opening their home to strangers as part of the condition, which the mall does.
This debate is interesting on several levels. One issue I’m concerned with is that in reality there are three kinds of property, not two. There is public and private property, of course. But what is not currently recognized by the law, but most people can understand instinctively, is that there are two kinds of private property: truly private realms, like your personal residence or the employee-only offices of a business, and places intended for public access, like malls.
For most legal purposes, “private property is private property”, meaning that even in a place intended for public access, you have only a revocable privilege to be there, not a defensible right, with one major exception:
The Civil Rights Act of 1964 restricted property owners whose property was in use as a “public accommodation” from discriminating against people on the basis of race and several other characteristics. This was the first time the law in the United States recognized that there is a difference between your living room and a shopping mall.
I am a proponent of what I call the “Civil Rights Act II” or, to me more modern, “Civil Rights Act 2.0” which would extend *all Constitutional rights* to public accommodations, even if they are on private property. This includes the First *and* Second Amendments. This would right many wrongs and solve many problems.
I really super seriously support this idea. And all those unintended consequences are just things that need a better legislative treatment than they currently have. We’ve dodged a lot of issues by pretending privately owned public space is somehow different than publicly owned public space and that different rules apply. Maybe we need to look at our rules for public spaces if they don’t work equally well regardless of who owns it.
For that matter why would anyone ever walk onto a public sidewalk or drive on a public road if they aren’t able to completely control the rules of that space, and merely be bystanders to how people behave around them.
It’s not like declaring a mall “public space” makes it a wild lawless frontier town. We have public sidewalks and roads and plazas that do not immediately descend into a mad-max dystopia merely because a private owner is unable to exert total control over the people who use it.
And, in the interest of a healthy discussion of many varying viewpoints and ideas, this site has a very loose control on comment sections. Which has value, I think. And certainly ‘the internet’ has helped democracy and debate in many ways thanks to its open nature. But when a place becomes closed off to new ideas, is seen as hostile to those who might raise questions, etc, it turns into an echo chamber – something the internet is also very guilty of.
What happens when you only ever experience echo chambers? When there’s no place where others can make you aware of market or government failures? Again, it’s not the government’s job to ensure every single place or internet site or house allows completely open debate and assembly. But it should be a goal to encourage this type of activity where it can, and I think most of our built-environment post-1965(?) doesn’t allow for that on any meaningful level.
So, I know the state supreme court already ruled on the issue, however rulings can be revisited especially when circumstances change (not that I think it will happen here). With that in mind, I’d like to point to exhibit A in my case against the MOA as a private space: The godawful city funded and constructed skyway across Killebrew to the south of the mall. The only way to access the north end of this skyway is via mall property. The city of Bloomington oh-so-wisely removed a crosswalk and forced all pedestrians to now use this bridge, where the exit drops you onto private property instead of a public sidewalk as before. Does this not create some kind of de facto public easement on mall property in order to reach and utilize the street crossing now? While there is technically one crosswalk left, it involves going probably 1/2 mile out of your way ON FOOT, which I’d say is not a reasonable alternative (especially on cold winter days like today).
For a couple years I had to take the train to the mall transit center and then walk to and across Killebrew. When the bridge went in I essentially *had* to pass through MOA ‘private’ property in order to reach my place of business. I’d say that probably constitutes some kind of implied easement at the very least. The mall even has signs posted on the ring road directing you to the transit center from the bridge (wisely directing people *around* the mall instead of through it), but wouldn’t that at least make that section of the ring road effectively equivalent to a public sidewalk with all the associated rights? I’m obviously not a lawyer and I’m sure they’d tear my theory apart (for several hundred dollars an hour), but doesn’t it make logical sense even if not technical legal sense?