\ ON MINNESOTA PUBLIC RADIO

Broadcast Date: 8/4/97

Moderator: It's six minutes past nine o'clock. Good morning and welcome to Midmorning on Minnesota Public Radio, I'm Paula Schroeder. We ' re gonna be talking about a relatively new issue today, whether a shopping mall should be considered a public space. Well, six anti-fur protesters were arrested on trespassing charges at the Mall of America this past Saturday, just days after an appeal was filed against a ruling that said the Mall is a public space that must allow freedom of expression. That same ruling by District Judge Jack Nordby said, however, the protesters must first gain permission to demonstrate from Mall management. Four University of Minnesota students protesting the sale of fur in 1996 had not done that, nor did the six arrested on Saturday, and they have all been charged with trespassing. In ruling the Mall is a public space, the judge noted the use of $186,000,000 in public funds used to build the facility. Mall officials say the shopping center is private property, an opinion shared by the U.S. Supreme Court, and has appealed the judge' s ruling. Free speech, the rights of property owners, and the role of shopping malls in today 's culture are all part of this case, and we' ll talk about those issues and more in this hour of Midmorning. We encourage your views and your questions, you can call in to 227-6000 in the Twin Cities, or toll-free 1-800-242-2828. Joining us this morning in our studios are Larry Leventahl, who is the attorney for the students charged in the animal rights demonstration in 1996, and John Sheran, who is an attorney with the law firm of Leonard, Street and Deinard, representing the Mall of America. Good morning, gentlemen.

Leventahl and Sheran:

Moderator:

Sheran:

Moderator:

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Good morning.

This is a relatively new issue, and John Sheran, I'd like you to start if you would, and just explain a little bit the position of the Mall of America, and then I want to get into just a little bit of the legal manifestations of this case as well.

The overall ...

But, first of all. yeah, the position that the Mall takes on people who want to protest; in this particular case, it was people who did not want furs to be sold, specifically at Macy's , they 've been protesting in front of Macy 's Department Store at the Mall of America.

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Sheran: Well, it has always been the position of the Mall that it is a private entity and the owner of private property. The Mall itself is private property, and it's the position of the Mall that as a private property owner they're entitled to control the activities that take place on its premises, including demonstrations· such as those that were participated in by the fur protesters. It's our position that the recent order of the court, Judge Nordby's order, is a denial of our right to control the· private property, and that is why we· have encouraged the City of Bloomington to appeal the order.

Moderator: Okay, I want to get into that just a little bit; I should mention first of all, that the reason Judge Nordby gave for saying the Mall was a public space is because $186,000,000 in public funds were used to help construct the Mall of America. But let's get back to this, what you just said, the City of Bloomington is actually working with the Mall of America in appealing this case. Why is the City involved in this case?

Sheran: Paula, this case, the posture of this case is a criminal prosecution by the 'City of Bloomington against these four defendants. The Mall is not a party to that prosecution, but it is certainly interested in the outcome and the Court's order and the effect that that has not only on the Mall, but any private property owner that has the involvement of public financing. And for that reason, the Mall of America asked to participate in the underlying case as an amicus. We filed a brief setting forth the position of the Mall. But we're not a direct party to this prosecution. As I indicated, the Mall is very interested in the outcome of this particular case and the Court's ruling, and for that reason, they have very much encouraged the City of Bloomington to appeal the case. But the appeal itself is an appeal by the City of Bloomington.

Moderator: Larry Leventahl, you're representing the protesters who are charged with trespassing. And one of the reasons that the Judge let the charges stand, even though he said that this was a public space, is because they did not first ask permission of Mall management to protest. Do you think they should not have to do that?

Leventahl: Well, what the Judge did was not to say any legal conclusion regarding the requirement of asking for permission or getting permission. The Judge had before him a motion to dismiss, saying this should be dismissed without a trial--that's what we argued. He accepted our arguments that under the Minnesota Constitution there is a broad right for freedom of speech and expression which is broader than under the U.S. Constitution and that individuals had the right to freely assemble and speak in areas such as Mall of America. That he issued a very lengthy 62-page opinion discussing. Now, on the factual issues, which .are normally reserved for trial, he said that it had not been established that the Mall would have refused permission and thus it is not that the trespass charges should be dismissed on the record that was there. Once we get to trial,

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then it would be the burden of the State to show beyond a reasonable doubt that every circumstance leading to a guilty charge would be established. including that the Mall would not have given permission--they won't be able to show this. and we're awaiting the trial, which is now set for September 15th. But there is a difference between him saying that you must ask permission in all instances to saying that the record isn't complete as to what he needs to examine.

Moderator: There were, as I mentioned at the outset here, there were six protesters arrested at the Mall on Saturday, and they too, even though this case had underscored the need to ask permission to demonstrate, they did not ask permission, and they were arrested on trespassing charges. Do you think that this was a deliberate effort to try to challenge that position?

Leventahl: I don't even know who these individual protesters were. I did see press releases that were sent to me by a media source, released by Mall of America and released by the protesters. What disturbed me was Mall of America in a press release saying that they didn't agree with Judge Nordby, they didn't intend to follow Judge Nordby's decision, they didn't think it was applicable. I thought that that was a rather high-handed view for the largest commercial mall in the United States to be taking saying, essentially, they don't care what the Courts say.

Moderator: Well, on the other, well, John Sheran, if you could respond to that, I guess that when you have a ruling such as this from Judge Nordby saying, okay, the Mall is a public space, it should allow freedom of expression; however, he lets stand trespassing charges that were filed against four previous protesters. Now you'v\! got six new protesters showing up in front of Macy's once again, protesting the sale of fur on Saturday after the ruling had been filed. How do you handle a situation like that?

Sheran: Well, the Mall, as I've indicated previously, as a good corporate citizen has to take into account Judge Nordby's ruling in their consideration as to how to handle· these matters. However, in addition to Judge Nordby's decision, there are a multitude of Court of Appeals and Minnesota State Supreme Court decisions as well as a decision of the United States Supreme Court, which in our opinion directly contradict the order that has been issued by Judge Nordby. Consequently, it is the position of the Mall that it is obliged and entitled to follow what it understands to be the law in the State of Minnesota according to those Court of Appeals. State Supreme Court and U.S. Supreme Court decisions.

Moderator: And those said that the Mall, that malls are privately owned and are considered private property?

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Sheran: The U.S. Supreme Court decision has held that relative to the First Amendment, the State Court decisions have indicated that the free speech provision of the Minnesota State Constitution should not be interpreted any more broadly or permit rights any greater than those recognized under the First Amendment.

Leventahl: The U.S. Supreme Court, as a matter of fact, has stated in dealing with a California constitutional provision that the California Supreme Court was correct in saying that in California, individuals had the right to free speech and demonstration at malls in that state under their constitution. The Minnesota Constitution is akin and similar to the California Constitution, indeed by its language appears to be somewhat broader. Thus, the U.S. Supreme Court directly supports the ruling of Judge Nordby, and in fact the ruling by Judge Nordby is the only ruling that has adopted and dealt with the Minnesota Constitution in these issues. It is the law in Minnesota, Mall of America should follow it instead of trying excuses as to why it should not abide by the law.

Moderator: You know, it seems that having this requirement that anyone who wants to demonstrate for or against anything, has to ask for permission first, that the Mall certainly has the power to decide well, whose views we're going to allow to be heard in the Mall and whose we're not. You know, isn't that a violation of the First Amendment?

. Sheran: To permit the Mall to ...

Moderator: To permit the Mall to say who is going to be able to demonstrate and who isn't.

Sheran: Well, e\·en under Judge Nordby's order, the Mall is entitled to place reasonable restrictions of time, place and manner on any demonstration. The reason why the court refused to dismiss the charges against these defendants is because they failed to even give the Mall an opportunity to impose those reasonable restrictions. The same is true of the trespassers this weekend. They did not approach the Mall officials and go through the process that is available to determine whether or not the demonstration would be permitted or under what circumstances. Again, because they did not do that, and consistent with the Court's order, they were arrested by the Bloomington police force.

Moderator: Have there ever been any protests allowed at the Mall of America that have asked for permission?

Sheran: There have been many demonstrations that have been permitted at the community booth. In fact, I don't have the precise numbers, but in the five years that the Mall has been in operation, I think there have been one, perhaps two organizations that have requested an opportunity to make a presentation at the community booth that have been denied. And that denial was in connection with a commercial, rather than a controversial protest.

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Leventahl: There was some testimony regarding that community booth at the hearings. The community booth is available only to certain types of organizations that Mall of America approves of their message, it's not being in conflict with the commercial nature of Mall of America. It is not used as a forum for people to express their views. There is no way in which the individuals who wish to protest fur being served, ah, sold at Macy's would be able to use the community booth. It's never been used for that type of purpose, and it never will be unless Mall of America chooses to now allow individuals consistent with Judge Nordby's order and the Minnesota Constitution to express themselves.

Moderator: Well let's hear what our listeners have to say. Should the Mall of America allow people to express themselves on whatever topic they think needs to be expressed? And we're talking with Larry Leventahl, who is an attorney representing four University of Minnesota students who were charged with trespassing at the Mall after staging an anti-fur protest back in 1996. John Sheran is with the law firm of Leonard, Street and Deinard, and he represents the Mall of America; the Mall says that, well, if anybody wants to stage a demonstration, they first have to ask permission because the Mall is private property. 227-6000 in the Twin Cities is the number to call, or you can reach us toll-free at 1-800-242-2828. It's twenty minutes past nine o'clock, you're listening to Midmorning on Minnesota Public Radio. David is calling from Roseville today.

(Caller#l) David: ... you again, I can hear them just fine.

Moderator: Hi, David, you're on the air now.

David:

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Yes, hi. I wanted to mention that it's important to state the protester's assertion in the form of a principle and see if the logical extension of that principle makes sense. And that is that if public money is used to create a facility, some:Qow that private property owner, without having prior consent in the contract itself for that public money, has given up some of their property Now, certainly there are government, there are court cases where situations such as Title IX has been held to be legal, but let's follow the principle and see if an individual, for example, receives money in the form of an earned income tax credit, does that give protesters the right to protest on the person's front yard? Is a commercial space that gives that principle standing? I don't think so, I think that the private property rights need to hold true here, unless there is prior contractual understanding. I also don't think that if a mall, if the mall owners happen to create internal pleasing public spaces, not public in the sense of owned by the public, but public in the sense that people walk around them and socialize, that that automatically gives someone the right to call that space a non-privately owned location. I think that the protesters would not be claiming the right to protest if the Mall did not have the central spaces, and that's an architectural

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Leventahl:

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consideration, so essentially what it comes down to is, if a property owner, commercial property owner decides to create a commercial space that has pleasing and comfortable internal spaces for use in the winter time and also in the heat of the summer, that that somehow undermines their property rights. I'd like the two speakers to address that, and I' 11 listen.

Sure. Okay. Well, Larry Leventahl, I think I'd like to start with you, because it's certainly the position of yourself and the protesters as well that this is a public space, and a lot of it based on the fact that public money was used. But, as David pointed out, anybody can get some form of public funding one way or another. Maybe all of us in the form of tax credits for the interest that we pay on our home mortgages would be considered public funding.

Well, what the Judge says is that a private party who receives Minnesota taxpayers' money, at least in any significant amount, and surely when the quantity is multiple-millions of dollars, is bound to respect these constitutional rights. Here it was S186,000,000 out of $700,000,000, 26%-plus as public money, that's certainly a major public involvement. It's interesting that the caller did state that there's architectural considerations. The dean of the school, Tom Fisher, of the School of Architecture at the University of Minnesota, testified during the hearings, and he has said that the malls are an outgrowth of the old main street of town square in that architectural design, they're designed exactly as would be the case for public streets to provide that type of facilitation, at least public sidewalks without vehicles, that they're designed that way by architects. He also said that the elimination of malls from venues where constitutionally protected free speech and assemblies can be conducted, would serve to dramatically curtail the exchange of ideas and thus the tolerance and understanding of other peoples' views. That is a very important issue to keep in mind. When the caller suggests that because there is private ownership that the public interests need not be served, I think he's taking a very narrow view, which Judge Nordby refused to subscribe to. The narrow view he would apparently take is if there's private ownership there can be no public interests. There is all sorts of public interests in private property. and the right to speak and communicate is one of them.

Well the point, John Sheran, that Larry Leventahl is making, that in fact the Mall of America was designed to be a small city of sorts, it even has street names; there are central gathering spots. You know, doesn't it give the impression, at least, to anyone who comes there that this is a gathering place, much as a town square was.

Well the Mall is certainly not a city, and the superficial marketing slogans of "city within a city" or the appearance, the decision about whether to restrict or apply constitutional rights is not based on so superficial a consideration. The caller is right on the money as far as I'm concerned, about the concern that this recent order creates relative to public financing. As I'm sure you're aware, public financing in the development by cities is commonplace. I think it's a very

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dangerous analysis to apply because the question is raised, do individuals risk loss of their constitutional rights simply by accepting some public funds? Would that be true of, for example, government-sponsored mortgages? Does an individual that has a VA mortgage suddenly risk the possibility that his Fourth Amendment right against unreasonable searches and seizures might be lost. Or student loans, or welfare recipients. There is no line drawn by Judge Nordby in his order that would give any answer to those questions, and I think it's a dangerous precedent for that reason, and I don't think it's supported by the law. The issue of whether or not public financing has been used in the development of a private property project has never been a consideration for determining whether or nor it is private or public for constitutional purposes. The ultimate issue is whether the alleged infringement ofrights of the individual is attributable to a state or private actor, in this case the limitation was entirely private, not public.

What would happen if a protester just stood on one of the sidewalks in front of the Mall, or one of the entrances to the Mall. Does the private property position still stand?

These particular protesters were invited to take their protest out on the public sidewalk which surrounds the exterior of the Mall. They refused to do that, and it's for that reason that they were arrested.

Leventahl: The area that surr ...

Moderator: Okay, go ahead, sorry Larry.

Leventahl: The area that surrounds the Mall is not a place that customers of the Mall are likely to be at. The Mall is a self-contained unit of over 500 stores, the parking ramps are attached to the Mall, the outside the parking ramps are parking drive-in spaces and outside that is the sidewalk that John is talking about. It's not an area that people frequent unless they happen to be cutting across highways to run into the Mall.

Moderator: So it's your position, obviously, that free speech should be allowed anywhere within the Mall? What about if it's at, you know, the dish at Camp Snoopy or something where a lot of families tend to gather. Do you think that that's an appropriate place to be protesting?

Leventahl: The ability to protest and to speak inside the Mall should be identical to city streets, and both are subject to reasonable time, place and circumstances. If individuals block the doors or block the lines at Camp Snoopy, that wouldn't be reasonably, likely, and thus it has a right to be controlled. But they have a right to be heard somewhere inside the Mall.

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Moderator: We're talking with Larry Leventahl, who is an attorney representing four protesters charged with trespassing at the Mall of America for staging a protest, and with John Sheran, who is an attorney representing the Mall of America, saying that it is private property and should have the right to decide who can be there and who can't. Polly is calling from St. Paul today. Hi Polly.

(Caller #2) Polly: Hello. I was very pleased to read about Judge Nordby's ruling about the right of

protesters to be seen and heard in spaces that are so large and have be.en funded with government money, because the Mall of America is not the only one, the skyways is another one. I have tried to demonstrate at such places, and I've been successful in very, very few. And I want to question the fact, though, of Judge Nordby' s ruling that has to do with where the protesters are permitted to stand. And the one place that I was given the right to demonstrate, I was given a space that was near empty, empty shops and absolutely no customers, no visibility whatsoever. So if the protesters do ask for permission and are given it, it most likely \\ill be in someplace that's absolutely unsuitable. The other part of my comment has to do with protesting outside in the winter in Minnesota, when we have all these shopping malls that are more and more taking over places which once were public, to demonstrate outside is unrealistic, you know, if it's 20 below zero.

Moderator: Well, so you feel like you're having your right to free speech denied by not being able to protest in a mall?

Polly: Absolutely, especially when government funds have been used to fund that building. And I just consider that attorney Sheran's comments about, you know, the smaller amounts of money and mortgages and that sort of thing, are absolutely not applicable to this.

Moderator: All right. thanks for the call. John Sheran, do you have a response for Polly?

Sheran: It's purely a matter of degree. I do believe that they do have application. If we pursue this analysis, there is no limitation in the Court's order that would mitigate against the possibility of that approach being taken in some other case. Our concern is that this is private property. These particular demonstrators were asking patrons of the Mall to boycott one of the tenants of the Mall. This is a direct contradiction to what the purpose of the Mall is, and for that reason, and in addition to, that the Mall is of the opinion that demonstrations of this sort interfere with the safe and convenient use of the Mall by its patrons, and consequently they are entitled to. once they've made that decision, to prohibit those sorts of demonstrations.

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Moderator: It's 29 minutes before 10:00; we're talking about the Mall of America, and other shopping malls. for that matter, whether they are indeed public spaces where free speech should be allowed in all its forms. You can give us a call with your thoughts on that at 227-6000 in the Twin Cities, or toll-free, 1-800-242-2828. I'm Paula Schroeder. this is Midmorning on Minnesota Public Radio, 28 minutes before 10:00.

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Moderator: And we're back on the air here with Larry Leventahl, who is an attorney representing protesters charged with trespassing at the Mall of America for a protest that it staged in front of Macy's against the selling of fur, that was back in 1996, that trial going to court in September; and John Sheran is also with us, he is an attorney representing the Mall of America, he's with the law firm of Leonard, Street and Deinard. Before we go back to our callers, I wanted to ask you, Larry, one of the things that the Mall points out is that they have a private security force there, they do not have police powers. And as we all know, those of us who grew up in the '60's and '70's, once in a while protests can become rather active. They could even become violent at some point. In a case where, you know, there is not a police force on hand to quell some potential disturbance, is it a good idea, do you think, to just allow anyone to come in at any time and say whatever they want to say?

Leventahl: Well I think they certainly should be allowed to say whatever they want to say. As far as the place and circumstances, there are considerations as to where it is so it doesn't interfere with other people. The Mall, however, does have the full force and effect of the Bloomington Police Department. There is a police substation that it there inside the Mall, the Bloomington police are available at their beck and call to come, and they pay them on a private basis, 150% of what their normal salary is, and they call them to come out in forces of 6, 8, 10 or 12, they very much have the Bloomington police force.

Moderator: Is that who was used to arrest your clients?

Leventahl: Yes.

Moderator: Okay. So it was not the Mall security, it was the police.

Leventahl: Mall security were involved as well, and also the Bloomington Police Department, who were there even before this demonstration started; they knew it was coming, and six of them were there to assist in making arrests.

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Moderator: You know, I'm kind of curious why it is that the protesters, well I know that in this particular case on Saturday, much of the media was alerted, and yet the Mall management was not told that this protest was about to occur. What's the point in doing it that way?

Leventahl: Well I don't know exactly what took place on Saturday. I do know the Mall management must have known because they issued a press release, and I have their press release, and they were speaking about a demonstration that was coming up.

Moderator: Hmm. Did they know about this one, John Sheran, do you know?

Sheran: I believe that they did know by virtue of radio, some radio program had announced that this was going to happen. The press release itself was issued, I believe, after the fact. I would like to comment on Mr. Leventahl' s remarks concerning the City of Bloomington police and its involvement with the Mall of America. It is inaccurate to suggest that the Mall of America has the Bloomington police force at its beck and call, as Mr. Leventahl indicated. There is no greater relationship between the Mall of America and the Bloomington police force than any individual citizen of the City of Bloomington. The Mall of America security force is entitled to call the Bloomington police force when situations develop that require their involvement. Beyond that, there is no direct involvement between the City of Bloomington police force and the Mall of America. His reference to a police station at the Mall is also inaccurate. It's simply a room that is available to the Bloomington police where they can do the necessary paperwork concerning any arrests that might be made there. But the police are called from the Mall of America at the Bloomington police station just as any private citizen would do, and they are dispatched from the police station to the Mall. just an any other private citizen call to the police.

Moderator: Well at the same time, they sure have a lot of economic clout in Bloomington, and a lot of people involved there, I wonder if they would get a little bit better response than from a private citizen.

Sheran: Well, all I can tell you is that I don't believe that the Mall of America gets any favorable treatment from the City of Bloomington beyond what is expected by any citizen of that city.

Leventahl: Any citizen cannot afford and does not hire the police on their off-duty time to come with police uniforms, paying them 150% of their regular salary and having a location at Mall of America that's designated as a police substation. Individual citizens don't have that, Mall of America does. They buy the services of the Bloomington Police Department; they pay for it, they can afford to pay for it, and that's going on every time the Mall of America desires to purchase these services, they do.

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Sheran:

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(Caller #3) Geri:

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That's simply inaccurate.

Well, let" s go to the phones. We' 11 talk to Geri, who's calling from Shoreview today. Hi Geri.

Hi there. Ah, well, I'm calling, not that I'm taking sides one way or the other, but I would suggest that maybe my case would be a situation that you could look at. I had picketing at my home for five years, and I think it's much more of an invasion that it ·would certainly be in a mall, and the irony is that we're talking about, (ineligible) women, women who might be wearing furs, or women who might be taking a (ineligible) contract, contrary to some men. And in my situation, I feel I could go through a traffic light maybe 16, 1 7, maybe 18 times, and have the Ramsey County Patrol give me a warning because, despite all of my cotirt orders, everything that I had as a private citizen to protect myself from this intrusive, terrorizing experience at my home, whenever there were people out in front of my home, they were given a warning. And the warning was given simply because the city attorney didn't feel, because he wasn't there on the spot, that he could be successful in court. And I think the issue of success had bearing upon the topic and upon the fact that I was female and that I was essentially powerless. Now the Mall has a lot of power, it has a lot of money, so maybe this time it will work in favor of women. So I just want you talk on that.

Okay, yeah, so what Geri is saying is that she wasn't able to successfully have people arrested for trespassing even though they were picketing in front of her home, her private home, and yet they have been arrested for trespassing at the Mall of America.

I don't know the circumstances of the caller's situation, perhaps these individuals were on the public sidewalk, and if that were the case, it would distinguish that situation from the one that we have relative to these fur protesters.

And our view is that Judge Nordby's order makes the Mall of America's streets equivalent to public sidewalks and there should be no difference.

Okay, and that's what's going to be argued in court, I would imagine.

Well I think Judge Nordby's made that opinion already and has issued that determination; what is going to happen at the trial is what the facts and circumstances relating to these protesters in accordance with the law that Judge Nordby has analyzed in his opinion.

Once again, the City of Bloomington has filed an appeal of Judge Nordby's ruling on behalf of the Mall of America, correct, John Sheran?

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Yes, that is true.

Yeah. And that goes to the Minnesota Court of Appeals now?

Yes it does.

Has there been any time scheduled for a hearing on that?

No, Paula, that appeal was just filed, I believe, last Tuesday or Wednesday, and I don't think that there has been any activity on it at all.

One of the articles in the newspaper said that this particular ruling by Judge Nordby was going to be awfully hard to appeal, that it looked like it was pretty solid based on constitutional law. How do you intend to argue that?

The position of the City of Bloomington, and again it is the City of Bloomington's appeal, not the Mall of America, but I anticipate that the position that they will be taking is that the ruling in effect, has the effect of a dismissal of these charges because the court has essentially raised the standard beyond what we believe the law would ordinarily apply. Consequently, this order has a critical impact on the ability of the prosecution to successfully prosecute its case, and for that reason I believe it's appealable.

Okay, so it doesn't really get to the point of whether the Mall is a public space or not, that particular appeal.

Well, I don't know if I agree with that. I think that that issue will have to be addressed by the Court of Appeals, and it not in this case, certainly in another that may come down the road at a later time.

Yeah. Larry Leventahl, did you want to say something?

Well, the appeal that was filed is really hard to explain. The motion was made to dismiss; the judge did not dismiss it, it goes to trial ...

Okay, the judge did not dismiss the trespassing charges?

He did not.

Okay.

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(Caller #4) Chris:

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Chris:

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And thus the City won. They opposed the dismissal, it was not dismissed. It goes to trial. I don ·t know how they can appeal an order which gave them what they were asking for. for it not to be dismissed. When it goes to trial, if the defendants are found not guilty, as I'm confident they will be. the City doesn · t have an opportunity to appeal because the government can not appeal "not guilty" decisions. Their attempt now to appeal is totally misplaced in my view, and what I hear Mr. Sheran is basically saying is that he thinks they'd be found to be not guilty and therefore the court should be able to set down some parameters for a trial that comes up. I don't understand that. The "not guilty" is non-appealable, and certainly a feeling that they're going to be found not guilty does not give rise to an appeal.

For those of you who are just tuning in, this ruling that was just issued about a week ago or so, a little over a week ago, from Judge Jack Nordby in Hennepin County District Court, was that the Mall of America is a public space that must allow freedom of expression; however, he did let stand trespassing charges against four protesters, and that is who Larry Leventahl is representing. It's 16 minutes before 10:00, and Chris is calling from Port Wing, Wisconsin today. Hi Chris.

Good day. I was hoping just to raise a philosophical point. I'm with the Northern Futures Foundation, and we've been researching the closing of these common areas referred to as malls, and it's pretty interesting watching the history of it, because corporations and, at times, municipalities and cities, have tried to close off common spaces for people to interact and exchange information freely for a long time. It can be intrusive of commerce, and it can actually enlighten the public, \Vhich we well know is a dangerous thing, but I'm very encouraged by the Judge's ruling, and I do hope that the plaintiffs are found not guilty. The thing we have to watch out for is a rising tide of what appears to be a much more fascistic, or fascism in our culture. If we choose to keep closing down public spaces and limiting people's ability to exchange information freely, then what we move to is a much more homogenized day-glow, commercial consumer culture that will truly move to pervert a society which up until 50 years ago was fairly free flowing and full of ideas.

Chris, I think we get what you're saying here, and I'd like to have some response and get on to some other callers. But, I also want to encourage you to tune into our program tomorrow, because we're going to be talking about community and where it has gone and where it is going, and it sounds like you might have something to add to that discussion too.

Yeah, it definitely should be in the heart of malls. Thanks very much.

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Okay, thanks a lot Chris. Well, you know, here's a point, that supporters, I would think, of Judge Nordby's are making, is that we don't really have any public spaces any more other than malls and shopping centers. That is where people go. that is ·where they gather; why not have an opportunity, maybe even a spot in the mall, to stand and say your peace.

Well, as I indicated, Paula, they do have that, and it's because these particular protesters did not give the Mall an opportunity to determine whether or not their protest \vould fall within the limitations that the Mall has, ...

Well, right, and I think that it would really be helpful for the Mall to spell that out in terms of well, what are the limitations. I would have to think that there are an awful lot of people who say there's no way the Mall of America is going to let me go out there and stand at their community booth and protest the sale of furs or, you know, to talk about abortion, or any other controversial issue, because it could disrupt that flow of commerce.

These particular protesters were putting the Mall of America in the position of having to provide them with a forum to directly attack one of its tenants, Macy's. It was their position, clearly stated in their placards and leaflets, that they wanted the guests there at the Mall of America to boycott one of the tenants. That's a direct contradiction, not only to the purpose of the Mall, but the contractual obligation that the Mall has to one of its tenants. That particular situation is simply unacceptable. Now whether or not a particular protest would or would not fall within the guidelines offered by the Mall for this sort of activity, it's unclear right now. because that situation has not presented itself. All I can say is what I've indicated previously, that groups have been permitted to make presentations at the Mall. There are limitations placed on them relative to moving about the Mall, interfering with the flow of traffic in the Mall, the degree to which they can use placards and things such as that, and primarily attempting to attack tenants. Those sorts of things are not permitted, but there are other situations where demonstrations are permitted. These particular demonstrators, for example, this weekend in the face of Judge Nordby's order, did not follow even the limitations that the Court's order placed upon the Mall.

Well, John Sheran has clearly, I think, stated what the Mall of America's policies are, and that is that commercialism of the Mall has precedence, free-flow of ideas has no weight whatsoever, it's only allowed to the extent that it's consistent with the commercialism they wish to see. The Mall of America, as was suggested by the last caller, is an area where people go and frequent. This is where people are found. Where is downtown Bloomington? Downtown Bloomington is Mall of America. If we do not allow people in malls to communicate and demonstrate, we' re going to be cutting down the range of free speech of ideas considerably. As a society. we can't afford to see that happen.

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Moderator:

Leventahl:

Moderator:

Leventahl:

Sheran:

Leventahl:

Moderator:

(Caller #5) Robert:

Moderator:

Well, you know, at the same time, don't people who visit the Mall have the right to be free of harassment ...

Absolutely .

. . . and what they might perceive to be harassment on the part of protesters? And doesn't the Mall have a responsibility to make sure that doesn't happen to them?

Individuals who frequent merchants downtown have a right to be free from harassment. Everyone has a right to be free from harassment, and if somebody is harassing someone, that's not a proper exercise of free speech, it should not be allowed.

I would ask Larry where the public square was in the City of Bloomington before the Mall came along. The Mall of America has not displaced any of the public forums that were available to individuals prior to its opening in 1992. And the suggestion that somehow the fact that the Mall has come in place since 1992 that there has been a total change in the environment of where a public discourse can take place is simply not true.

The Mall of America, in its own research, shows that over 50% of the people prefer to shop in shopping malls, a much, much lesser percentage prefer to shop in downtown areas or individual stores, and somewhere in between are stores such as the large discount stores. Over half now are preferring to shop in the malls that has drawn people from where they congregate otherwise, and the individual merchants in the main streets to the malls, that is something that has been happening, it's undeniable, the Mall of America's own research is the clearest example of it I've seen.

Let's go back to the phones. We're going to talk to Robert, who's calling from Bemidji today. Hi Robert.

Good morning. The question I have to ask is going to Mr. Leventahl's argument that these common areas, you know, being built with public financing then become public, let's talk about the City Center, let's talk about the Trade Center in St. Paul, Dayton Hudson is building a new building here downtown on the mall, and all these common areas then, going by Mr. Leventahl' s argument, should in fact be public and be able to have public discourse in these. Any comment?

Yeah, Larry Leventahl, is that what you think?

Leventahl: Yes.

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Moderator: They should be allowed anywhere? They should be, where public money has been used?

Leventahl: Yes, and certainly like Civic Center is public, and it clearly is allowed there. Dayton Hudson is a private store, but the streets are public streets.

Moderator: Well, again, I think that, you know, that's another area where people might think it sounds great in concept, but if they're confronted with it, face-to-face, it might not be as comfortable for them. Let me just given an example, just a couple of weeks ago there was, a, thanks for the call Robert, there was a huge group of people, mostly Laotians, who were walking down the streets of St. Paul protesting proposed most favored

[end of tape side 1, start of tape side 2]

trade status with Laos, going from Kellogg Boulevard up to the State Capitol. Now, that is something that is surprising to see on the streets of St. Paul these days, but at the same time, it is not disturbing, as opposed to having people stand right in front of a door where you're trying to get in and encouraging not to go in, such as the case as Macy's. Do you see the difference here, of just making your point of view known as opposed to trying to change other people's behavior?

Leventahl: If instead of being near Macy's they were near Dayton's downtown with a similar flyer as protesters espousing animal rights have been, nobody believes that that is a violation of rights. And they have done that without being harassed and without being arrested. Now, if individuals in either place are blocking doors to people cannot get in, that's not just free speech, that's a physical action that's interfering with someone's rights. But as far as whether the flyers say you should or should not frequent this place, it should be identical inside Mall of America as it would be a store downtown.

Moderator: Well, John Sheran, clearly you don't agree with that.

Sheran: Of course I don't agree with that, and standing in front of the door and at least requiring the guests at the Mall of America to walk around these individuals is exactly \vhat these protesters were doing, not only Mr. Leventahl' s clients, but also the protesters over the weekend.

Moderator: Just a few minutes left in our discussion here today with Larry Leventahl, who is an attorney representing four people accused of trespassing at the Mall of America during an anti-fur demonstration, and with John Sheran, who is an attorney representing the Mall of America. Steve is calling from Minneapolis today. Hi Steve.

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(Caller#6) Steve:

Moderator:

Sheran:

Moderator:

Leventahl:

Sheran:

Moderator:

(Caller #7) Jack:

Sheran:

Moderator:

(Caller #8) Lee:

Moderator:

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Hi there. I just had a brief comment. It seems to me that the name "Mall of America" says it all. When did they decide that they could be the "Mall of America?" It seems to me they're really a shopping mall, the mall of shopping, and the attitude toward free speech is completely contained in the name. That's really all I have to say.

Okay, any comment? John Sheran?

Well, as I indicated before, marketing slogans such as "Mall of America" or the slogan that they use "city within a city," perhaps suggests something along those lines, but that is not the criteria that courts use to decide the very crucial issues of whether or not it's public or private property. It simply is not that simple.

Do you see this case as possibly precedent setting in terms of how malls will be used, can be used, by the public? Larry Leventahl?

I hope so. In Minnesota it certainly should be.

If this case became law, it would be precedent setting because the current precedent is a ·contradiction to the Court's existing order in our opinion.

I think that we've got time for another caller here before we wrap up this morning. Jack is calling from St. Paul today. Hi Jack.

Hi. I'm just curious. If 26% or whatever number it might be, public money causes these commons to be public space, then wouldn't Bloomington be willing to offer up say another 26% reduction in property taxes? If it's public space, are you paying property taxes on it?

First of all, I don't agree with the number. The $186,000,000 is an inflated number; actually it's more in the area of $100,000,000, but that's really neither here nor there. Most of the financing is the result of tax increment financing and it's a means through real estate taxes for developing the property.

Well, let's see. I think that we have time to take one more caller here, very quickly. We'll talk to Lee, who's calling from Minneapolis today. Hi Lee.

Hi, how you doing?

Good.

17

Lee: Listen, my question you've touched upon and a couple of comments have been made earlier, but I want to ask particularly, what is the difference between a space just a few feet away from the outside door of Macy's where the protesters were asked to go and the difference between a few feet away from the door inside the Mall. It just seems that there's a roof over the head of the, ah, in one case, and not in the other, and I'm wondering from a legal standpoint, what is the difference?

Leventahl: They were not asked to go a few feet away, they were asked to get out, leave.

Lee: Yeah, but would it have been lawful for them to take their signs outside the door?

Moderator: Yeah, if they had been on the sidewalk right outside, 'cause there is an outside entrance to Macy's too, correct?

Sheran: I'm wondering if the caller might misunderstand the situation. The protesters in both situations, Mr. Leventahl's clients and also the protesters over the weekend, were in the common area just outside of Macy's, they weren't in Macy's itself.

Moderator: Right, no, I think he understand that, but at the same time, they were still outside the store and we heard earlier that it would be okay if they were to protest on the sidewalk in the outdoor area outside the store. And what's the difference between, you know, being outside the store inside and being outside the store outside.

Sheran: That area, called the ring road, is also private property. The sidewalk area where they were permitted to conduct their protest is beyond that on the perimeter of the Mall, and that is public property.

Moderator: Okay, and that, so they would have to be away from the outside entrance to Macy's as well.

Sheran: That's correct.

Moderator: All right. Well I want to thank both of you for coming in and helping us to understand this issue a little bit more. It doesn't sound like we've really settled anything, but I guess that's what courts are for. John Sheran, thank you so much for coming in today.

Sheran: You bet.

Moderator: John Sheran is an attorney with Leonard, Street and Deinard, representing the Mall of America. Larry Leventahl, thanks to you as well.

Leventahl: Good to be here.

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Moderator: Larry Leventahl is representing four protesters arrested for trespassing at the Mall of America; that trial will be in court on September 15th. You're listening to Midmorning on Minnesota Public Radio.

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State of Minnesota,

Appellant,

vs.

Freeman Algot Wicklund, Alethea Ruth Jean Schaffer, Peter Benson Eckholdt, and Alissa Ifetayo Eggert,

STATE OF MINNESOTA

IN COURT OF APPEALS

AFFIDAVIT OF DEBRA K. JOLLY

APPELLATE COURT CASE NO. C7-97-1381

Respondents.

STATE OF MINNESOTA ) ) SS.

COUNTY OF HENNEPIN )

I, DEBRA K. JOLLY, being duly sworn on oath, state that:

1. I am an employee of Leonard, Street and Deinard. I transcribed an audio tape

received from Minnesota Public Radio relating to the August 4, 1997 broadcast of"Midmorning on

Minnesota Public Radio."

2. A true and correct copy of the transcript that I prepared is attached hereto.

FURTHER YOUR AFFIANT SA YETH NOT.

Subscribed and sworn to before me of August, 1997.

\< DEBRA K. JOLLY

A-88