posted on March 7, 2003 07:35:42 PM new
Birth of an Urban Legend
"Man Arrested for 'Peace' T-Shirt" read the headline on the Tuesday Reuters dispatch. "Marchers Protest Arrest of Man for Wearing Peace T-Shirt at Crossgates" the Albany Times-Union reported the next day. (Crossgates is an Albany-area shopping mall.) Sounds like an outrageous case of censorship, doesn't it? But it turns out to be an urban legend.
First, as even the early news stories made clear, the man in the shirt, Steve Downs, was arrested not for wearing a shirt but for trespassing. According to Reuters' "report," a mall security guard asked Downs to remove his "Give peace a chance" shirt or turn it inside-out. "When Downs refused the security officers' orders, police from the town of Guilderland were called and he was arrested and taken away in handcuffs, charged with trespassing."
Although the mall may have the legal right to eject someone for wearing an offensive shirt, the action as described by Reuters certainly sounds like overkill. But Reuters leaves out a crucial part of the allegation, which appears on the arrest report, obtained by The Smoking Gun: The security guards had received complaints that Downs and his "partner" (actually his son, according to the Times-Union) "were stopping other shoppers." The security guard's deposition says that a customer had complained "that the two gentlemen [sic] were having a verbal dispute with another group of individuals in the mall. The customer was afraid of what may come out of the dispute, so she wanted to let someone know."
Sounds more like disturbing the peace than protecting it.
There's another odd angle to this story: The New York Law Journal reports that Downs is the chief lawyer for the state's Commission on Judicial Conduct. "Last month, U.S. District Judge David N. Hurd in Utica, N.Y., shot down as unconstitutionally vague provisions in the Code of Judicial Conduct that restrain the political speech of judges and judicial candidates." Downs's office had prosecuted a judge for taking part in political activities. The law journal notes that "there are no allegations that Downs violated any ethics code -- he is not a judge, and therefore not subject to the Code of Judicial Conduct."
posted on March 10, 2003 06:05:23 AM new
From what I have been reading, that little flap about the complaints and the guy arguing with others was pure CYA fiction. They were unable to find ANY witnesses except the guard.
The mall dropped the charges because they knew they had no case. They fired the guard because he was only harassing the guy.
Things to consider...
IF he was arguing with others....why was he at first told to turn it inside out? Anybody who argues with others should be ejected immediately. Or was it others attacking him? And why weren't the other parties ejected, it takes two to argue.
If other customers complained about the shirt and you are not allowed to wear them then, WHY THE HECK DO THEY SELL THEM if they are such believers?
I know, I know. Such things take some INTELLIGENT thought rather than knee-jerk Limbaughism.
"Beware the leader who bangs the drums of war in order to whip the citizenry into a patriotic ervor, for patriotism is indeed a double-edged sword. It both boldens the blood, just as it narrows the mind. And when the drums of war have reached a fever pitch and the blood boils with hate and the mind has closed, the leader will have no need in seizing the rights of the citizenry. Rather, the citizenry, infused with fear and blinded by patriotism, will offer up all of their rights unto the leader and gladly so. How do I know? For this is what I have done. And I am Caesar."
- Julius Caesar
[ edited by mlecher on Mar 10, 2003 06:23 AM ]
posted on March 10, 2003 08:53:05 AM new
Whether the Mall had a trespass case or not is irrelevant. What is relevant is that it is not a First Amendment case. The Supreme Court has already ruled that a private Mall is not a public place and they can eject anyone. This was the second ejectment for the same reason, and they dropped that case too. In any event, the Mall accomplished what it wanted, and that is to eject people wearing a shirt they felt disturbed their commerce.
It is little different than private clubs not allowing anyone to enter wearing "gang colors".
The Mall dropped the cases not because they couldn't win, but because even if they win they lose. Commercial entities learned long ago that to publicly support any position in a contraversy costs them business. They do not want to be seen as for or against war, because customers on one side of the issue will be offended.
What is General Motors position on abortion ? What is Honda's position on religion in public schools ? They will not publicly state a position because it will effect the attitudes of the consumers on the other side of the issue towards their products.
The Mall is the same way. They do not want either side of the position making statements on their property. They can not win. The solution is to ask them to leave or remove the shirt. If they refuse to leave and remove the shirt, it is trespass.
But the right also has a reporting problem with the Pledge of Alligence case. They blast the headline that the Pledge has been outlawed in schools, when the court did no such thing. All it "outlawed" was the term "under god" which was not even a part of the original Pledge. Therefore, the pledge can be said without offending the constitution. The right media always reports the ruling as outlawing the Pledge.
posted on March 10, 2003 09:46:36 AM new
Have to agree, T-shirts are not a cause for a public outcry or anything... they should of been left alone...
Especially seeing some of the T-shirts kids wear today... I would rather see those...
posted on March 10, 2003 10:22:37 AM new
That was a good summation, REAMOND.
This case reminds me of one guy that I worked with who was a "Born Again" Christian. He was very polite about it, but he began to wear these T-Shirts which I considered hideous and offensive. It was the usual depictment of a bleeding, dazed, nearly dead Christ's head wreathed and throny with blood all over and applicable bits of cross in the background. It was like someone wearing a T-Shirt promoting a funeral. I told him that I thought that the depiction was hideous and distasteful to me. He was polite enough not to wear them to work again.
posted on March 10, 2003 11:31:33 AM new
Here we go again. ... someone doesn't like the fact that their allegation has been completely disproved in one thread, so they go and start a whole 'nother one so they can spin the story the way they want to without pesky voices of dissent letting everyone know they're dead, dead wrong.
YES, it was "brought out" in the other thread that Downs was arrested for trespassing. It was in the FIRST LINE of the story linked in the FIRST POST that mentioned it.
Nothing has changed in this story. The mall is still 100 percent in the wrong.Having someone arrested for trespass is the means via which private-property owners act against an "invitee" on their property when they don't like what they are doing or saying. If what the "invitee" is doing is protected by the First Amendment, and the property is considered to be "private property dedicated to public use" (like, say, a mall) then the property owner has violated the invitee's rights.
reamond, do you have a case citation for what you've claimed? Becuase I previously linked to a case that says you're dead wrong. For those who don't want to wade through all four pages of that thread, here's a link to a summary of the relevant case law on which Downs may base his civil suit (assuming he sues, in which case he will win.) The most relevant case is Pruneyard Shopping Center v. Robbins (1979) which involved a shopping mall and political speech.
The guard absolutely should have been fired. He's landed his employer in a heap o' steamin' trouble. The mall absolutely should have dropped the charges. The first rule of tort-law defense is "stop the bleeding." Their lawyers are probably negotiating feverishly with Downs right now, trying to come up with a settlement.
I'm going to go out on a limb and predict that the settlement will eventually involve 1) an apology 2) public notices posted at the mall that spell out their (constitutionally sound) policy, and 3) an agreed-on training program that mall employees have to go through in the future. I'm also going to guess that malls across the country start doing the same if they haven't already.
Finally, I'll predict that no money changes hands, though Downs might negotiate a payment to the NY-ACLU or some other non-profit or charity group.
[ edited by msincognito on Mar 10, 2003 11:33 AM ]
posted on March 10, 2003 12:13:41 PM new
The Pruneyard case is irrelevant because it is based on the free speech doctrine of the California State constitution - and as far as I know, the california constitution has no force in New York. The Supreme Court ruled that California has interpreted its own constitution to allow such a right and that it did not violate the shopping center owner's free speech or property rights.
Thus far, California is the only state with such an interpretation of its own constitution, but each case can still be scrutinized regarding the federal rights of the owner depending on the facts of what the protestors were doing.
Better learn how to interpret court cases before you start pronouncing federal constitutional rights.
See Hudgens vs NLRB 424 US 507.
'neither labor picketers, anti-war activists'... "nor any other citizens have a First Amendment right to express themselves in shopping centers over the property owners objection"
I don't know where you people get the idea that the First Amendment gives you the right to use private non-media property over the owner's objection.
Now I'll make a prediction. If the mall owner does anything for Downs, it will be a gratuitous public relations ploy, because there is no basis in law to support a civil claim based on the First Amendment. Also, I bet that Downs (himself a lawyer) will not file a suit for fear that the Mall with come back with a huge counter-claim.
The guard was not fired for violating any First Amendment rights, but for violating the commercial principle of not keeping the situation under enough control to keep thing quiet.
The guard probably has the best civil case, second only to the Shopping Mall's civil and criminal case against Downs. Downs has no case at all.
posted on March 10, 2003 02:31:15 PM new
Other people will get bored with legal semantics, so I'll sum up: Hudgens is older than Pruneyard, and California and New York's constitutions are nearly identical in the area of free speech. More importantly, Pruneyard is generally read as applicable to all states, albeit in the very limited realm of "shopping malls" and "political speech." (Rehnquist, by the way, wrote Pruneyard and I haven't heard that he changed his mind.)
At any rate, the mall doesn't have any basis to claim any kind of "taking" based on the most credible accounts of Downs' behavior. There may, or may not have been, an "altercation" with another customer. The fact that Downs was arrested, and his son was not, makes it clear that the behavior the mall was seeking to punish was Downs' refusal to take off the shirt. (The son took his shirt off.) So the altercation is really irrelevant, if indeed the mall can prove that Downs was at all at fault.
Without backing down on the legal point - 'cause I'm pretty darn sure I'm right - the practical implications of this are huge.
There are tens of thousands of t-shirts with various political slogans sold every week in this country. Personally, I find some of them very offensive ... like "It's Not a Child, It's a Choice." Someone else might not like my "Doing My Best to Annoy the Religious Right" shirt. (As a matter of fact, I have been confronted by people who didn't like it. I just grinned and said "Hey, it's working." )
If you've ever been caught up in a campaign, you know that even seeing a bumper sticker for your candidate's opponent can cause a red mist to float before your eyes.
Yet people go in and out of grocery stores, gas stations and yes, shopping malls wearing these shirts every day. If there had been a mass forced disrobing, I think we would have heard about it.
Political T-shirts are classified as "pure speech." The only exception I could imagine would be one that crossed the line into being obscene. That's been distinguished from clothing that acts as a criminal modality (like gang colors, which help people engaged in a criminal enterprise identify each other.) Also acceptable: Bans on clothing that violates community standards (thong-back bikinis come to mind) or health/safety rules (no shirt, no shoes, no service)
If you're going to ban anything, you also have to give people notice.
In Daytona this week, bars banned "club patches" on people here for Bike Week, on the basis that they furthered gang activity. But people were selling and wearing t-shirts that said it was a stupid policy. (The one I saw - at the mall, no less - was "If Bikers for Christ patches are outlawed, then only outlaws will have Bikers for Christ patches." ) Those t-shirts weren't banned because they're pure political speech.
[ edited by msincognito on Mar 10, 2003 02:32 PM ]
[ edited by msincognito on Mar 10, 2003 02:35 PM ]
posted on March 10, 2003 02:49:38 PM new
Well I'll go with Steven Emanuel's (Harvard Law 1976) interpretation of Pruneyard and posit that it only applies to California.
Emanuel makes his living publishinging law outlines. If his interpretation is wrong, it would have made the headlines.
But here is a dead giveaway that you are wrong. If Pruneyard applied to all other states, which it does not, then Hudgens would have been completely overturned. Pruneyard states clearly that you have no federal First Amendment right in a shopping mall , it has nothing to do with legal symantics, and everything to do with the reach of the federal constitution.
In any event, there can be no dispute that there is absolutely no federal First Amendment right of free speech in a private shopping mall anywhere in the US. A state may give you that right, but the United States Constitution clearly does not.
"Legal semantics" are what makes or breaks a legal interpretation. Had you advised your New York client that the US Constitution gives you a Free Speech right that voids trespassing in a private Shopping Mall, you would be guilty of gross malpractice.
posted on March 10, 2003 02:53:03 PM new
"In Daytona this week, bars banned "club patches" on people here for Bike Week, on the basis that they furthered gang activity. But people were selling and wearing t-shirts that said it was a stupid policy. (The one I saw - at the mall, no less - was "If Bikers for Christ patches are outlawed, then only outlaws will have Bikers for Christ patches." ) Those t-shirts weren't banned because they're pure political speech."
I would have never thought of you as a biker type.
They do band thongs in Daytona and all of Volusia County. Doesn't make a difference if they say something political or not.
BTW Daytona's beginning to really suck. That will make a good shirt.
You can have anything you want on your shirt, No one cares.
You can't wear colors (motorcycle club patches) in most of the bars in the Daytona, and many other places, because "it's private property."
You can wear "colors" and there's not much they can do, except hassle you, give you tickets for Bull Sh*t, hold your bike for a couple days to make sure it's not stolen and on and on.
Yea, Being a biker all my adult life, I've usually had the feeling ...Authority sucked big time. Sometimes it still does.
The incident in the Mall was overblown BS. Small time lawyer looking for the lime light.
Sniping works up a thirst"