Mall Guard Loses Job Over T-shirt Flap

Times Union ^ | March 8, 2003 | Bruce Scruton

[Fred Mertz]

Exactly. They use Nazi-like intimidation tactics to get their political way.

You should know.

[TLBSHOW]

TODAY FAT WOMEN FOR PEACE ARE PROTESTING AT THE MALL

[Cultural Jihad]

What Nazi-like intimidation tactics should I know about, Fred? Perhaps you may be easily intimidated and cowered by open debate, but don't presume to speak for the rest of humanity.

[Colt .45]

Someone up in Crossroads should wear a T-shirt that says that Downs is a anti-American leech sucking off the lifeblood of American liberty ( ie. The Bill of Rights ). See what kind of crap flies then, and when he threatens to take legal action ... claim 1st Amendment rights.

[henderson field]

This is not a question of pro-war or anti-war. It is a question of free speech. Since the mall and the police violated the right of free speech, they should be deported. They took an oath to support the Constitution and failed to observe it. Therefore, they were fraudulently naturalized as citizens. Luckily for them, the INS is so incompetent and so corrupt that nothing will be done.

[henderson field]

Is anyone else bothered by the fact that the "customer" who filed the "complaint" is not named or identified in any way? Maybe we'll have a secret trial, too!

[Mad Dawgg]

"Since the mall and the police violated the right of free speech, they should be deported. They took an oath to support the Constitution and failed to observe it."

Huh?

[Cultural Jihad]

Is anyone else bothered by the fact that the "customer" who filed the "complaint" is not named or identified in any way?

No.

[Cultural Jihad]

This is not a question of pro-war or anti-war. It is a question of free speech. Since the mall and the police violated the right of free speech, they should be deported. They took an oath to support the Constitution and failed to observe it. Therefore, they were fraudulently naturalized as citizens. Luckily for them, the INS is so incompetent and so corrupt that nothing will be done.

You certainly advance an interesting theory which touches upon most of the usual hot buttons in the forum, Archie.

[Arpege92]

"This is not a question of pro-war or anti-war. It is a question of free speech. Since the mall and the police violated the right of free speech, they should be deported. They took an oath to support the Constitution and failed to obseve it."

Since when does a Mall take an oath to support the right of free speech? The Mall doesn't belong to the two anti-war t-shirt wearers, it's private and when they were asked to leave or remove the anti-war t-shirts, they should have complied. The motives of these two men were quite obvious, but it would be difficult to prove that in a court of law. The firing of that mall security officer was a lame attempt to appease the anti-war supporters.

All in all, the anti-war supporters got exactly what they wanted.....publicity for their cause at the expense of a mall security officer who lost his job following orders. Do they care about that?

[swarthyguy]

It's the mall mgmt who have their heads where the sun don't shine.

The whole arrest was a farce and this guy is taking the fall for it.

And mgmt skates. No winners here.

The Mall Managers - the Peter Principle and CYA personified.

[george wythe]

It is a question of free speech. Since the mall and the police violated the right of free speech,

Two Cases to consider:

Lloyd

In 1972, the Supreme Court in the case of Lloyd Corp. v. Tanner, etched out just how open to the public one's private property must be in order to lose the right to exclude members of the general public from participating in free speech.

In that case, anti-war protesters were enjoined from distributing handbills in an Oregon shopping mall. The Supreme Court held that the mall literally opened itself up to the public because the mall did business with the general public. However, the Court reasoned that the mere fact of doing business with the public did not constitute a company town, as in Marsh, or a business block, as in Logan Valley.

Rather, the Court held that the mall did not sufficiently lose enough of its private character to have its right to exclude outweighed by free speech rights.

Pruneyard

In 1980, the free speech/ private property rights struggle took on a more complicated form in a case called Pruneyard Shopping Center v. Robins. The Supreme Court dealt with an appeal by a shopping center from a California State Supreme Court decision upholding the free speech and petition rights of individual citizens on property owned by the shopping center.

The Court recognized that the nature of the California shopping mall was similar to the shopping mall in Lloyd. Also, as in Lloyd, the Court recognized that

free speech rights guaranteed by the U.S. Constitution would not outweigh the California shopping mall's right to exclude.

Yet, the Supreme Court acknowledged that the California Constitution also guarantees free speech rights to California citizens. Moreover, the Court held that the California Constitution could provide greater protection for free speech rights than the U.S. Constitution.

Furthermore, the Court held that those free speech rights guaranteed by the California Constitution, or any state constitution for that matter, even in a privately-owned shopping mall, like the one in Lloyd, could outweigh the shopping mall owner's right to exclude.

My non-lawyer reading of the above leads me to conclude that there is no federal protection for private protestors inside a mall, but there might be state protection depending on the particular state's constitution

[You Gotta Be Kidding Me]

The problem, of course, is the fact that NOBODY stated that the two hippies were the ones who started the "verbal confrontation". Just wearing a shirt that others don't like is not a crime. If two Klansmen harrassed a black man, would it be fair to eject the black man because he had been the "focus" of a "verbal confrontation". It has not been stated that these father and son hippies harrassed anyone. It was ASSUMED that they had started the "verbal confrontation". Free speach is free speach, either way.

[razbinn]

if this BULL$HITdoesn't stop,we're going to have to return to the "back to basics" of the old west!!!!

[george wythe]

NY Constitution, article I, § 8, considered in light of both history and modern conditions, does not preclude the owner of a private shopping mall from enforcing a blanket no-handbilling policy and does not compel the owner to permit use of the mall for the distribution of leaflets opposing nuclear energy.

The adoption and enforcement of such a policy does not infringe any rights under the First Amendment to the US Constitution because the actions of the owner do not constitute the State action necessary to trigger Federal constitutional protections; similarly, the State constitutional guarantee of freedom of speech protects the individual against action by governmental authorities, not by private persons, and the State action requirement will not be abrogated.

Plaintiffs have shown no significant government participation in private conduct that limits free speech rights, and accordingly, since there is no State action involved, the provisions of the State Constitution have no role in the resolution of a dispute between private parties.

SHAD Alliance v Smith Haven Mall, 66 N.Y.2d 496

[george wythe]

"T-shirt could be considered a leaflet in another medium"

Ayres v. Chicago, 125 F.3d 1010 (7th Cir.1997); Chicago Acorn v. Metropolitan Pier & Exposition Authority, 150 F .3d 695, 703 (7th Cir.1998)

[all_mighty_dollar]

>>>And mgmt skates. No winners here.<<<

Society loses again because of a lawyer, how typical. Maybe it's time to start closing law schools - starting with Cornell Law School?

[ambrose]

bump

[rmvh]

Paraphrasing your # 6.....Its right to be allowed to picket and complain about everything"...

The arrested man was alleged to have been engaging other shoppers in a disruptive way and people began to complain. This is hardly as American as Mom & apple pie

The outrage is that the mall guard lost his job.

[Richard Kimball]

Hey, this is America. Employers should, and do in most states, have the right to fire anybody at any time for any reason other than bad cause.

Couple of important points here:

The mall fired the security guard for following legal orders. This is bad cause. Getting fired as a security guard is like getting evicted from a dumpster, but when an employee follows legal orders, it is ridiculous to fire him for following orders. This is simply allowing the lawyer to get away with causing a disturbance, and the mall to get away with gross mismanagement.

As to your statement that the firing was "good, perfect", please click here.