March 05, 2003
A GUY WAS ARRESTED AT ALBANY'S CROSSGATES MALL because he was wearing an antiwar t-shirt and refused to take it off or to leave when asked.
A reader wonders if he's got a First Amendment lawsuit. The answer is no, because the mall is a private entity and doesn't have to observe the First Amendment (he may, however, have an action under New York law or New York's state constitution).
Unlike the government, though, the Crossgates Mall is regulated by the market. The "crossgatesmall.com" website is one of those bogus entities run by an outfit that hits you with popups and tries to hijack your homepage. But this page lists businesses at the Crossgates Mall, with their phone numbers and websites, in case you want to contact them and express your disappointment with the mall in which they operate.
I think anti-war t-shirts are dumb and wrong, of course, but that doesn't mean that people should be thrown out of malls for wearing them. And as these shirts were entirely unobjectionable in terms of their presentation, the only possible reason for the mall to act this way was because it didn't like the message. As a private business, the mall is free to take that attitude, of course.
But other people are free to take their business elsewhere.
UPDATE: I 've gotten a lot of email about this. If you're interested in free speech and shopping malls -- and you should be -- you'll be interested in this article by a former student of mine on the subject. It started out as a paper for my Advanced Constitutional Law seminar.
And, even more bizarre, apparently the t-shirts were bought at the mall. Jeez.
And Michele emails:
The man in question, Stephen Downs, is the director of the Albany office of the state Commission on Judicial Conduct. His office has been made all but obsolete by the recent ruling regarding the free speech limits of judges running for election.
While I totally disagree with those security guards, I just thought this was an interesting ironic twist in the story.
A censor censored. Heh. Bill Hobbs is offering comments from a journalist's perspective.
ANOTHER UPDATE: Eugene Volokh has comments.
YET ANOTHER UPDATE: A media reader sends a copy of the mall's press release in reply:
STATEMENT BY TIM KELLEY, DIRECTOR OF OPERATIONS,
PYRAMID MALL MANAGEMENT REGARDING CROSSGATES MALL
On the evening of March 3, Crossgates Mall security received a complaint regarding two individuals disrupting customers. The individuals were approached by security because of their actions and interference with other shoppers. Their behavior, coupled with their clothing, to express to others their personal views on world affairs were disruptive of customers.
Crossgates’ management is committed to maintaining the mall as a family-friendly facility that provides a secure and enjoyable experience for all its visitors while allowing merchants a prosperous place to do business. While Crossgates Mall is perceived by some to be a public place, it is privately owned. The courts have affirmed that private properties, including shopping malls, have the right to restrict actions and behaviors deemed inconsistent with its intended purpose -- in this case a shopping environment.
The existing rules of conduct at Crossgates Mall strictly prohibit loitering, disorderly or disruptive conduct, harassment, offensive language, fighting or any illegal activity. The Mall will not tolerate violations of these regulations. In this instance, mall management given the information provided to them, determined the customers in question were violating mall policy.
Information has surfaced regarding future demonstrations at Crossgates Mall. Mall management cannot and will not allow this type of activity to occur and will be vigilant in enforcing the rules of conduct which provide a safe and comfortable environment for visitors, merchants and employees.
In light of recent events, it is important to note that Crossgates Mall has long been a safe, friendly atmosphere for shopping, dining and entertainment.
Well, there you are. Somewhat short on details, though.
YET ANOTHER UPDATE: The Smoking Gun has the police report. It seems there was more to this story than just t-shirts.