The opening sentence of Henry Fielding’s Tom Jones:
I don’t know how well the English common-law concept of a ‘public ordinary’ applies to an American shopping mall, but it certainly seems to be talking about the same thing. Bricker, any thoughts?
Deep breathes Zoe. Deep breathes.
Er… while I am no expert on New York law, I did read SHAD Alliance before I posted. As you correctly summarize, SHAD stands for the proposition that neither the federal nor New York constitution affords protection under these circumstances. While I read the dissent, I was unpersuaded - and, since the majority was similarly unpersuaded, and since New York case law is as I said… I felt safe with my post.
I didn’t find (or look for) the California cases you cited, and while it seems that the California constitution does protect expressive conduct on private, public accomodation property, that’s of no moment when discussing a New York case. As far as I can tell, New York law permits the mall owner’s actions. I’m certainly open to hearing a contrary example, but dissenting commentary does not case law make.
- Rick
I don’t think the whole story is out yet.
I find it impossible to believe that a mall management company would impose any kind of political philosophy to the point of actually ejecting someone merely for what their t-shirt read. In today’s politically correct, lawsuit-ready world its just really bad business.
The articles say that there were demonstrations 3 months earlier with people wearing similar t-shirts. And I think the guy was discussing the war with other people at the mall, either at their instigation and/or his (I refuse to believe that a plain white t-shirt with black letters would get noticed regardless of what it said).
So I think the mall just wanted to maintain an orderly, friendly shopping environment (and have every right to do so).
I also think this is going to be one of those unending arguments based solely on political beliefs rather than the law or the facts. If you’re against the war you’re not going to care if he really was being too much of a nuisance and deserved to be arrested for it because you believe the end justified the means.
Rick,
I rechecked all your posts in this thread and never found you limiting your statements solely to New York. I was under the impression that you were speaking about these issues in all cases and all jurisdictions. Hence my concern that you may not have been completely correct when you said:
IIRC, there are three state court rulings that may allow limitations on shopping malls from limiting certain kinds of speech.
That being said, I disagree with those cases, and agree, for the most part, with you. I only wished to point out the old adage: YMMV.
Not exactly. He was arrested because he refused to leave private property.
Point well made.
I was writing in the context of this case, but I failed to make that clear.
Careless on my part.
Please substitute “this mall owner” every time I said “a mall owner” above.
- Rick
The police report says that Downs was causing the problem by harassing other shoppers, not the t-shirt. The t-shirt was his tool, his window of opportunity, his door to talk to people. It was his OP and he is basically a troll, a mall troll.
It looks like he intended to make a statement, not just in words but in action. When he refused to stop his activity of pushing his politically beliefs on mall patrons, he was asked to to stop. When he refused, he was asked to leave. He refused again, became beligerent and was arrested. Now he has gone to the media to show how “evil” all those people are who support the war are. And sure enough, people are swallowing hook, line and sinker.
Who do you believe, the police report or Downs? And why?
The police just wrote down what the security told them. I have no reason to believe a couple of sweaty, beetle-browed mall cops. Hopefully the CCTV will tell the whole story. It sounds like the rent-a-cops are claiming that one (probably fictional) patron whined to them about the T-shirts and they decided to act like a couple of tough guys. Threy’ll be applying for jobs at the food court next week.
BTW, I checked the MSNBC link. Looks like the charges were dropped.
I am a New York lawyer. Bricker is right. You are wrong. **
Unless we’re talking about a “company town” type situation (where a private company is, effectively, the government for a community), a private property owner can restrict free speech to his heart’s content. He can exclude customers for any reason he sees fit, even for illogical and stupid reasons. The only thing he can’t do is discriminate on the basis of membership in a protected class (race, gender, etc).
The Bill of Rights only apply to the federal government and, in some cases, to the state governments through the fourteenth amendment. It does not apply to private actors. Absent state action, there can be no first amendment violation.
Well, maybe.
The front page of the police report makes no mention of harrassment. It does say that the security guard “[r]eceived complaints that they were stopping other shoppers.”
Now, let’s look at the actual statements from the witnesses - the Macy’s store detective and the mall security guard.
The Macy’s store detective, Katie Light, is the first authority figure to enter the story. And all her statement tells us is that she was approached by a customer and told that “these two gentlemen [the two Downs men] were having a verbal dispute with another group of individuals.” There is absolutely no indication here of who started the dispute. For all we know at this point, it could have been caused by someone coming up to Downs and calling him a commie peacenik.
Further, the store detective never says that she told mall security that the Downs men were harrassing other shoppers. If we are to believe her testimony, she simply “informed them of the two individuals wearing the anti-war t-shirts.” As far as i can see, actually, the store detective acted quite reasonably, given that she was informed of a dispute that might have escalated into shouting or violence, for all she knew.
Now, let’s look at the testimony of security guard Robert Williams. He says that he was responding to a “complaint regarding persons protesting in front of Macy’s against the pending war with Iraq.” Well, given that he was responding to the call from Katie Light, the Macy’s store detective, he was NOT, in fact, responding to a call about protestors.
Light’s statement indicates quite clearly that she informed mall security about a “verbal dispute,” and that there were two men with anti-war t-shirts. The fact that these men were the initiators of the dispute is nowhere stated in Light’s statement, and i think it is reasonable to assume that if the shopper who complained to Light had stated who started the argument, this fact would have made it into her report. But it didn’t, and so far it seems that it is nothing but the security guard’s imagination (or prejudice, perhaps) that has assigned blame for the dispute to the Downs men.
Later in his statement, the security guard alleges that he observed the Downses “walking through the common area…[and] stopping customers to express why they were wearing the shirts.” He then says that he asked the men to “stop bothering customers and to please cover or remove the shirts.”
Well, if the two men were stopping other customers (something they both deny in all the stories i’ve read), then why was it necessary for them to remove the shirts? Why was it not enough, in the security guard’s mind (i know, oxymoron), that they simply stop harrassing other shoppers? His insistence that they remove the shirts suggests, to me at least, that this was the only thing they were doing “wrong,” and that their so-called protesting was something added to make him look better.
All the evidence we have regarding the alleged harrassment comes from the security guard. The Macy’s store detective makes no mention of it. And the front page of the police report blatantly contradicts the testimony of Katie Light and Robert Williams.
As i mentioned above, the the report says that the security guards “[r]eceived complaints that they were stopping other shoppers.” But, as we have seen, according to Light’s statement, they received no such complaint from her. And if there was another complainant, why was his or her name not mentioned in the report/s?
So, to review, we have a single security guard, whose statement is not consistent with that of the original reporter of the incident (store detective Light), and who is apparently the only person who saw the alleged “harrassment.” And we have the two Downs men, who deny any such harrassment, and who say they were simply shopping. It sounds to me like the whole “harrassment” or “protesting” issue is little more than a cover-your-ass to make the security guard look like he was actually doing something useful rather than just “harrassing” a shopper because he didn’t like the ideas expressed on his t-shirt.
My 2c.
Since when are mall security guards the moronic, untrustworthy dregs of humanity that so many people portray them here when defending Downs? Isn’t that kind of ignorant, not to mention insulting?
I only see one post that portrays security guards in an unfavorable light.
More to the point - people are not granting security guards the respect that is normally granted law enforcement personnel, and this is natural. Security guards commonly get the same respect as any other mall employee… and let’s face it, that’s not a hell of a lot. These people are not (at least in this case) highly trained specialists in their field. This is the same for the security personnel at my place of work: they check our ID’s, but that’s about all they’re trusted to do. They’re not cops.
So when people portray this as “Downs Vs. The Cops”, it’s irresponsible. It’s really “Downs Vs. Mall Security”, which to me (and many others it would seem) is equivalent to “Some Guy Vs. Some Other Guy”. Just because the Other Guy has “mall security” on his shirt doesn’t make me assume he’s being truthful.
Just one post ed? Not to mention the “rent-a-cop” references. They are mall security, they have a job to do like anyone else. Why are they less trustworthy than Downs, who by denying he was bothering anyone is covering his ass too.
And if people would read the police report, there was one security guard, the other was a police officer. After Downs was confronted by security and became beligerent, Officer Myers of the Guilderland Police force was passing by and Williams asked for his assistance. So a police officer was present through most of the confrontation and Downs was still arrested.
checkout the smokinggun.com for the rest of the story…they weren’t exactly just innocently walking around…
You’re right, i probably shouldn’t have been so all-encompassing in my attempt at humour. But i stand by my insult as it applies to this particular security guard.
That’s where i got all the information for my previous post - i should have made that clear.
And, as i pointed out in that post, there are enough inconsistencies in the police report and the statements by the store detective and the security guard to call into question whether or not the Downs men were actually stopping and harrassing other shoppers. It essentially their word against the security guard’s - there is no-one else, including the Macy’s store detective, who says that they were stopping shoppers - and i feel no more inclined to believe the security guard than i do to believe the Downs men.
Sorry, I missed mhendo’s reference there, I was thinking of the one you quoted from Diogenes.
My comment was not intended to portray the security guards in a negative light, honestly, and I retract any such implied meaning. My meaning was that the authority of a security guard is a far cry from that of a law enforcement officer.
I never indicated that the security guards are less trustworthy than Downs, simply that they are not necessarily any more. I stand by that assertion, based on the fact that they’re not authorized and trained law enforcement personnel. I believe cops more in these situations because they are held more accountable to their words than an average person. Not so with these guards.
In regards to the police officer being present: I’m speaking for myself here (naturally), but I’ll reiterate what I said about them handling things appropriately once they became involved. There’s no question in my mind that if a guard says “take off the shirt” and the person does not comply, that the police are now compelled to take action. That’s not what I’m contending. Rather, I’m simply arguing that the account of the guard prior to the police officer arriving is suspect for reasons of consistency and lack of evidence, and simply being a security guard doesn’t dispell those suspicions any more than Downs being Downs does for him.