Barbarians breach the gate at the MOA

There has not been a great deal of other-than-superficial legal analysis of the rights of the participants in the large Black Lives Matter rally that took place at the Temple of Conspicuous Consumption (“TCC” or “MOA”) on Saturday, December 20th. You won’t get a lot more here, except a couple of what I think are salient points.

Maybe extra salient in view of the fact that the slavering-dog city attorney in Bloomington wants to make an example of these people.

In my long years of observation, whenever someone tries to use the law to make an example of people or to send a message, he — or she — usually winds up stepping on a rake. There is a reason for this. It’s called crusader’s myopia, and yes, I coined the term; it makes the teacher or messenger forget the elements and legal requirements of the case in favor of the desired message.

These are often wonderful tragedies, complete with multiple choruses commenting on the action. Who knows what the fates have in store for Bloomington city attorney Sandra Johnson?

Setting the Stage

As has been extensively reported, there was a large rally, organized by Black Lives Matter Minneapolis, that took place in the rotunda of the Mall of America on Saturday. The crowd was estimated by some at 1,500. On a normal day, the MOA would love to have the people there, and the fire marshall wouldn’t be herding them out the door, either.

In the run up to the rally, the MOA was saying, No, don’t you dare; this is private property. You may not disturb the sacred shopping grounds. Your apostasy will be punished, you heretics.

Well, undeterred, the rally took place on the sacred shopping grounds on, as some members of the media wailed, the biggest shopping Saturday of the year. (The media, incidentally, are one of the choruses I mentioned earlier.)

That free speech and assembly should stand in the way of commerce like this is unconscionable.

In spite of the fact that the rally was peaceful, dignified, and moving, the Bloomington city attorney takes the stage and says:

“It’s important to make an example out of these organizers so that this never happens again,” [Sandra] Johnson said. “It was a powder keg waiting for the match.”

Johnson is a hysterical, fabulist twit.

The Law of Shopping Center Trespass

In her oration, City Attorney Johnson relies on the 1999 Minnesota Supreme Court case of State v. Wicklund in support of the proposition that the protesters were common trespassers, subject to ejection and prosecution. The case has never been directly challenged, at least in a reported case that I can find, but it might be now.

Apparently, according to Johnson, the rally organizers are also guilty of some kind of conspiracy to commit trespass, but the city attorney was understandably a little vague about that.

Private property vs. First Amendment rights has been an issue since the advent of enclosed malls in America. And right here, we have to take a detour to discuss the grandmom of all malls, Southdale. Southdale was designed by Victor Gruen, an Austrian immigrant and socialist (you read that right), who thought up Southdale because he:

wanted to design a building that would be a communal gathering place [my emphasis], where people would shop, drink coffee, and socialize, as he remembered from his native Vienna.

As the article continues, Victor’s vision for Southdale and malls in general was not realized. No shit.

There was, incidentally, a TPT documentary about Southdale and Victor’s vision that aired some time ago. You might even be able to find it in the TPT archives. That malls went from communal spaces to retail citadels, in spite of the millions of public dollars that went into them, is obvious. The MOA is Exhibit A.

It is apparent that Sandra Johnson is also an ahistorical twit.

Some of you may remember the case that Johnson relies on. There were a handful of protesters who gathered at a second floor entrance to the MOA, near the Macy’s store entrance, to protest the destruction of fur bearing animals for ornamental garments, which Macy’s sold. The mall cops told them to get out, and when they didn’t, the mall cops called the real cops and had the protesters arrested. Everybody, up to and including the Minnesota Supreme Court, said, Private property. Lock ’em up. Never mind that there is a bazillion in public subsidies in that sucker.

The protesters defended on the grounds that the MOA was the “functional equivalent” of a public space, that it had substantial tax support, and ought to be available for First Amendment activities.

This was not, my friends, a moment when our Supreme Court covered itself in glory.

The Black Lives Matter Minnesota rally was not at an entrance; it was in the rotunda, and didn’t block commercial activity, or people coming for going from the mall, at least it didn’t until the Bloomington police, dressed as Imperial Stormtroopers for Christmas, moved in.

But, you say, the rotunda at the MOA is never used for activities of large groups of people unrelated to the sale of the bric a brac available at the MOA. Oh, wait:

Several days [before the Black Lives Matter Minnesota protest], six times as many people showed up for a sing-a-long [also in the rotunda] to raise money for cancer research and no shoppers were terribly inconvenienced. That, presumably, was authorized.

Wicklund is a slender reed upon which the city attorney leans; the present situation is easily distinguishable. But when you are a lap dog for commercial interests, and you have a terminal case of crusader’s myopia, you don’t see it.

Functional equivalence to a public space is recognized in other states.

A review of the uses to which the rotunda of the MOA has been put would reveal pretty quickly that it is the functional equivalent of public space. If necessary, a court ought to say so. Victor would be proud.

So, what can you do, my friends?

Well, first, you can contact Sandra Johnson and point out her fabulist and ahistorical twittism. Second, you can cross the MOA off as a place you will ever visit again, as long as you live. And cut off any offspring who go there from your will. For many of you, this is largely symbolic, I know, but it is still important.

And lastly, you can tell your council members, if you live in Bloomington, and your state legislators, wherever you live, that it ought to be a cold day in hell before the MOA ever gets another dime of consideration.

Update: The MOA netted up to a quarter of a billion dollars in tax breaks from the legislature in 2013 for the MOA’s expansion.

Further Update: Even publicly-subsidized buses take people (and shoppers) to the Mall of America. Not to mention the light rail, of course.