Posted on 03/04/2003 5:22:02 PM PST by TLBSHOW
Lawyer Arrested for Wearing a 'Peace' T-Shirt
— NEW YORK (Reuters) - A lawyer was arrested late Monday and charged with trespassing at a public mall in the state of New York after refusing to take off a T-shirt advocating peace that he had just purchased at the mall.
According to the criminal complaint filed on Monday, Stephen Downs was wearing a T-shirt bearing the words "Give Peace A Chance" that he had just purchased from a vendor inside the Crossgates Mall in Guilderland, New York, near Albany.
"I was in the food court with my son when I was confronted by two security guards and ordered to either take off the T-shirt or leave the mall," said Downs.
When Downs refused the security officers' orders, police from the town of Guilderland were called and he was arrested and taken away in handcuffs, charged with trespassing "in that he knowingly enter(ed) or remain(ed) unlawfully upon premises," the complaint read.
Downs said police tried to convince him he was wrong in his actions by refusing to remove the T-shirt because the mall "was like a private house and that I was acting poorly.
"I told them the analogy was not good and I was then hauled off to night court where I was arraigned after pleading not guilty and released on my own recognizance," Downs told Reuters in a telephone interview.
Downs is the director of the Albany Office of the state Commission on Judicial Conduct, which investigates complaints of misconduct against judges and can admonish, censure or remove judges found to have engaged in misconduct.
Calls to the Guilderland police and district attorney, Anthony Cardona and to officials at the mall were not returned for comment.
Downs is due back in court for a hearing on March 17.
He could face up to a year in prison if convicted.
AMEN!
Disregarding the validity of the story, what we have here is a conflict of rights: The right of the business patron to free speech vs the right of a business property owner to limit free speech (or anything else) on his property. And that is a vast simplification of the rights issues. Our ancestors instituted a government to secure the rights of the business patron and the business propeerty owner, thereby consenting to the just powers of that government to secure those rights. As far as I can tell, one of those just powers was to arbitrate conflicts in rights judicially or legislatively.
We are the heirs to all this, as modified over time, though we have not personnally consented to all of it.
As much as the goverment should secure the rights of the property owner, it should also secure the rights of the members of the public who patronize business property open to the general public, and who are not otherwise actively interfering with the rights of other members of the public who are patronizing that property. All else being equal, if the owner of a business property bars the patronage of some members of the public while saying he is open to the general public, he is operating under false pretenses and everyone would be better off if he arranged his business to serve "members only."
Of course we can always revert to blood fued and if a business owner doesn't want a person's patronage he can just shoot him if the person doesn't shoot him first for the insult of being denied access to the business. And the decedant's relatives can shoot the survivor and so on. That's going to get messy.
Support them, yes. SHOP there? NO!
Try this: Do a keyword search on "Hari Krishna" and "airport".
AMEN, ARUANAN!
Great to see that someone else has noticed this! And since I know that you've been here a long time, does it not seem to you that FR has gradually changed that way over time compared to the "early days"?
Ok I go to that very same mall and I decide to say "F^@K Bill Clinton" over and over in a very loud and resounding voice. Do I have free speech rights there to do this?
Nice try!
Next.
Oh, absolutely.. In spirit I am with you 100%
But, as far as how a court will rule on this, I am still betting on the lawyer.
There is a hierarchy involved here. As important as private property is, there are compelling reasons for the law to intervene in certain instances.
On July 6, the Georgia Supreme Court in Cahill v. Cobb Place Associates, L.P. declined to extend free-speech protection to individuals soliciting at private malls. The court relied on its 1990 decision in Citizens for Ethical Government v. Gwinnett Place Assoc., in which it determined that the Georgia Constitution does not create "a constitutional right of access to private property." from Georgia high court backs mall's no-solicitation policy
Hey, it's very well-protected in all the avenues it belongs in. The mall owners exercise their full right to free expression by deciding what messages are allowed to be displayed on their own property. The shoppers enjoy their full right to free expression on their own properties, or out on publicly-owned roads and buildings. If it's organized by any group, though, then it ought to be subject to permits.
Mighty statist of you.
You have a perfect right to guarantee these rights. Just buy a mall and permit anyone with an axe to grind to speak out whenever he or she wants.
Just don't expect your tenants to stay. Or, should the government also require them to stay?
No, but not because it is "political speech," but because vulgar speech does not have to be countenanced.
However, if your T-Shirt said "Jail To The Chief!" during the Clinton years, you'd better BELIEVE it's protected.
Those laws have nothing to do with the issue here. The issue is whether someone can be removed from private property (the mall common area) for expressing an opinion that the owner of the mall disagrees with. Except in California (which I'll discuss further below) and other states which may have legislation on this subject, the answer under common law and standard state statutes is, YES.
The Congress in the Civil Rights laws expressly found that racism impacted interstate commerce and was insidious and could only be stamped out by forcing privately-owned places of public accomodation to comply. The Supreme Court compliantly went along with this revision of the Constitution. The mall is a public accomodation, and could not lawfully exclude blacks, asians, muslims, or christians. Those civil rights laws did not take property rights away so far as to require public facilities to allow any and all political beliefs to be expressed upon private property. There is some semblance of freedom left in this country, and a mall owner is still permitted to have his own beliefs and opinions (except when it comes to race).
Many people brought up the point that the offending shirt was purchased at a mall shop. IRRELEVANT. The shop is a tenant, free to do whatever is allowed under the lease and lawful under state law, within the confines of the store. The mall does not have to condone anything that goes on inside an individual store. Once the customer leaves the store and enters the mall's common area, the customer is subject to the owner's rules. As someone pointed out, the customer could buy a hotdog at a stand, and then be kicked out for eating it away from the food court.
Others have pointed out that pro-war t-shirts have been allowed. Again, irrelevant. Property owners can exclude people with whom they disagree. They can exclude people for being ugly if they want. When I represented a national retailer, it was standard practice to hand anyone who gave the store managers too much trouble, or who was suspected of exchanging clothing that they had bought with intent to wear and return, or who had been caught shoplifting but not convicted, a notice that the store did not want their business any more and that they were no longer authorized to enter the store. If they returned, they were trespassing, and police would be called. This is in California, by the way.
California's oddities have inspired confusion on this subject, too. In California, the parking lot area of a mall has been declared (I think by a court decision, not legislation) quasi-public, and the public has therefore been given the right to conduct free speech exercises that do not interfere with the store business. They can't block the entrance and take up the parking spaces, but they can set up unobtrusive tables, and picket a certain distance away from the entrance and other things. I disagree with this law, and I don't think it's been tested in the US Supreme Court, so it's not a settled issue whether the state can take away property rights in this fashion.
Under California law and the laws of most states, there is a "Merchant's Privilege", which allows a merchant to detain a customer in a reasonable fashion to conduct an investigation into whether a crime has been committed against the store. Any detention of a customer meeting the criteria is privileged from legal action.
In this case, it does not look like there was even a detention. Instead, the mall called the REAL police, stated the facts, and the Police arrested the bozo. In such circumstances, even in nutball California, the mall would not be liable for the action of the police in arresting the patron. There is another privilege, which protects citizens from liability for "unlawful detention" or "wrongful arrest" when they have fairly reported the facts to the police. The only exception would be if the mall misstated the facts on purpose in order to get someone arrested. That does not appear to be claimed by either side in this story. When the police make the arrest, and shouldn't have, the right of action by the party arrested is against the police, not the citizen who fairly reported the facts.
The mall seems to have gone overboard here as a business matter, but they were within their rights.
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