Marketplace of Ideas

MINNEAPOLIS ATTORNEY Larry Leventhal isn't known for losing in court or for shying away from a tough fight, but his most recent case puts him in a position where many have fought and few have won. Leventhal, who has mounted successful defenses in high-profile cases involving Qubilah Shabazz and an uprising at Wounded Knee, is representing four anti-fur activists who were arrested at the Mall of America on May 19, 1996. Toting signs emblazoned with pictures of skinned animals, the protesters were picketing Macy's, encouraging people to boycott both Macy's and Bloomingdale's because they sell fur.

In court last week, Leventhal asked Hennepin County District Court Judge Jack Nordby to throw the case out because his clients were exercising their rights to free speech in a public place. Prosecutors say the mall is private property and the First Amendment doesn't apply. To date, most of the cases that pit property rights against free speech have resulted in rulings that privately owned businesses have no obligation to allow free speech on their property. Leventhal, however, notes that local taxpayers anted up $189 million for the mall's construction, which he says makes it public space. He's banking that that fact, plus a handful of court decisions in other states that say shopping malls must respect free speech, will make this case different.

To get the charges dismissed, Leventhal must convince the court of two things: that the Mall is a public place, and that his clients have a protected right to speak there. Associate Bloomington City Attorney Sandra Johnson says the "overwhelming majority" of states to consider the issue have ruled in favor of the property owner.

The prosecution's position is straightforward. It argues the mall is private property and there are many public locations where the defendants could have protested instead. In court documents, Johnson cites a 1972 Supreme Court case that says the Bill of Rights doesn't protect speech on private property. But the same case also provides a key part of Leventhal's free-speech argument. The justices said state constitutions could grant people greater speech rights than the federal government. Three states have ruled that their constitutions grant greater free-speech protection than the Bill of Rights. One California case dealt specifically with free speech at a mall.

"The (U.S.) Supreme Court found that the state of California Supreme Court was correct to find, under the constitution of California, it was required that individuals be allowed to express free-speech rights at malls," says Leventhal. "This (case) is under the Minnesota Constitution, which we think has a great deal of similarities." The Minnesota Supreme Court has never heard a case on the issue.

One difference between the cases is the nature of the protest. Johnson argues that the defendants were trying to disrupt business at two mall stores. The California case involved students passing a petition at a mall. The court there ultimately decided that they were assembled peacefully and not disturbing business.

The state Constitution says "all persons may freely speak, write and publish their sentiments on all subjects," which Leventhal says gives his clients greater speech rights than the First Amendment gives them; the U.S. Constitution protects individuals only from government interference against free expression, while Minnesota gives an absolute right to expression. Johnson argues those words don't address speech on private property, only the way in which governments control speech.

As for defining the mall as a public place, Leventhal's clearest evidence is the $189 million in taxes used to build the complex. Since tax money may only be used for public purposes, he argues, the mall is a public place. To bolster this point, he cites Minnesota property law, which says that tax-financed facilities must be used in a way that benefits the community, whether a business ultimately reaps a profit or not.

Leventhal also argues the mall is a public place for social reasons; the shopping centers that are replacing downtown business districts nationwide have also replaced the traditional "Main Streets" of America. The Mall of America offers entertainment, restaurants, mass transportation, and community events, making it more of a city than a shopping center, he says. And because it is like a city, it must allow free speech.

It will be July or early August before there's a decision, but no matter how he decides, Judge Nordby figures someone will appeal the case, and the final decision will be left to someone else. CP

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