by Paul Alan Levy
In a case litigated over the past few days, the Mall of America filed an action against several leaders of Black Lives Matter in Minneapolis who had called a demonstration, to be held inside the famous shopping mall, to protest a police shooting in the area. The TRO sought to bar the holding of the demonstration by four named defendants, by John Doe defendants, or by the voluntary association “Black Lives Matter Minneapolis,” or by “all of their respective agents and other persons acting in active concert or participation with any of the defendants.” In addition, the requested TRO would have barred any of the defendants or those “acting in active concert” from soliciting or encouraging a demonstration, including by online messages or through social media; would have required that existing messages be taken down; and would have required the affirmative posting of messages saying that the demonstration had been canceled. As some of the defendants noted in a press release, “If the motion is approved by a judge, activists could face jail time for refusing to make social media posts or send texts in accordance with the demands of a private corporation.”
The Judge's Order and Its Limits
After hearing argument two days before the planned protest, the judge issued a narrow order barring the three identified defendants on whom personal service had been effected from “engaging in any demonstration on the [Mall of America] Premises on December 23, 2015, or thereafter [without the Mall’s permission].” The court reasoned that Minnesota, unlike California and some other states, has not extended state-constitutional-law protection to recognize the right to protest at private shopping malls on the theory that they are comparable to the sort of company-town situations that led the Supreme Court to extend free speech rights under the First Amendment. However, the court limited the emergency relief that she was willing to issue to a prohibition on conduct within the “enclosed structure” housing the mall, because the only state-law basis for the complaint and for the TRO motion was civil trespass, which is limited to conduct on the plaintiff’s property. In light of that state-law limitation, the court did not have to consider the serious First Amendment ramifications of relief seeking a prior restraint against public advocacy on issues of serious public concern, or of compelled speech in the form of directed postings on social media. Although disclaimers are a standard form of relief in the commercial speech arena, such as when trademark infringement has been found (and even then, subject to First Amendment limitations), such compelled speech would be highly suspect in the realm of core political commentary.
The court also declined to issue relief beyond the three individual defendants who had received personal service of the complaint and TRO papers. She refused to bind the "John Doe defendants" or the voluntary association "Black Lives Matter Minneapolis), and even refused an injunction against the one named defendant whom the Mall had been unable to serve personally. In this regard, the judge relied on her understanding that Minnesota law requires personal service before a court can acquire sufficient jurisdiction over an individual defendant to allow issuance of an injunction. Minnesota law in this regard is apparently more limited than federal law, which has long been understood to authorize issuance of a preliminary injunction based on notice, even if service cannot be obtained. In one of the cases I brought on behalf of a union insurgent candidate seeking the right to do a mailing in support of his candidacy, for example, the union was apparently ducking service of the summons and complaint, but the trial court was nevertheless able to schedule a preliminary injunction hearing and, subsequently, issue the preliminary injunction that we sought.
Concerns About the Language of the TRO
Although the court’s limited TRO might have been based on a fair reading of Minnesota law about a citizen’s right of free speech inside a private shopping mall, the injunction itself seems to me dangerously vague — what does it mean to “engage in any demonstration” within the premises of a shopping mall? Any of the three defendants can be held in contempt of court and, without a jury trial, subjected to fines and even coercive incarceration if they guess wrong about the meaning of that phrase. Certainly the impact of such vagueness would have been magnified had the trial judge extended the TRO to unnamed Doe defendants, to the defendants’ “agents,” and anybody “acting in active concert or participation with any of the defendants.”
It is perhaps understandable that the Mall worried about the impact of a large demonstration on customer attendance on one of the last shopping days before Christmas, and did not want to have to turn away individuals based on a suspicion that they were coming to advocate rather than to shop; instead, the mall preferred to obtain injunctive relief against advocacy. But from a First Amendment perspective, I wonder whether the law might not have been better served by denying the requested restraining order and leaving the plaintiff to have the police eject specific individuals whose behavior was objectionable, as well as to a claim for damages based on actual observed behavior that interfered with the commercial conduct of business at the mall.