That will be an interesting court case.
Since they were on private property, and the First Amendment doesn't (few people understand this, but it's the law) apply to private property or persons, just to government actions, Crossgates may well have been within their rights to have him arrested for trespassing when he refused to leave.
On the other hand, in some states malls have been accorded the status of quasi-public gathering places, where a higher standard of rights is provided for. That will be a significant issue in the legal case, if it gets to trial.
Crossgates did have a public notice that they prohibited clothing which was likely to provoke disturbances. The mall was perhaps in a "Catch-22" situation; if they had failed to act, and a disturbance had arisen, and some innocent bystander had gotten hurt, would that person hold the Mall liable for not enforcing their stated policy? You can bet your bottom dollar that their lawyer would make that argument, that their client relied on the written policy to keep them safe from disturbances caused by inappropriate apparel, and that the Mall was negligent in not enforcing its policy and protecting its patrons.
I have been as staunchly supportive of free speech rights as anybody here, and have several times recommended (and will again) Nat Hentoff's excellent book "Free Speech for Me but Not for Thee." But we also have to understand that there are right and wrong places and times for free speech.
I hope that nobody here wants to argue that if a person I have invited into my home changes into clothing that I find objectionable, I am not entitled to ask them to leave? Is there any argument about that? Does anybody believe that we should be forced to listen in our own homes to messages we don't want to hear?
The question, therefore, becomes, in terms of free speech rights, is the Crossgates Mall more like a home, or more like the front lawn of the Courthouse? Is wearing such T-shirts in public for the express purpose of making a provocative public statement an innocent expression of free speech, or is it the equivalent of shouting "FIRE" in a crowded theater?
Thanks, Karen, for bringing this to our attention. It's an interesting issue, with good points on both sides. |
