If the public space is corporatized and organized around commercial business, what happens to free speech and free religion?
Reports circulated a mall security guard in Dublin, Georgia, stopped a group of Christians from holding prayer while eating in the mall’s food court earlier this month. The outraged group spoke with the mall manager who reportedly responded to questions about it like this:
‘Sir, are you saying that people who eat in the food court can’t bow their heads and pray.’ ‘No ma’am.’ That’s exactly what he said.”
Christian groups in the community expressed their outrage over the incident, contacting the Dublin Mall and its owner GMK Properties. Vice President John Engler issued this vague and waffling statement:
“The mall first and foremost has no issues or objection whatsoever with anyone of any religion denomination privately and quietly praying over [their] food before they eat,” said Engler.
“The Dublin Mall and the management are not opposed to prayer or any religious affiliations which has also been stated in the last week; however, these practices should be done in the appropriate locations under the appropriate laws and confines with-in Dublin or anywhere in the state of Georgia.”
But where is “the appropriate location.” Clearly, the mall’s manager and security team have been instructed that it is nowhere under their roof. But the Christian goes everywhere.
This is an important issue not only with the freedom of religion, but of other First Amendment issues – notice the rules against soliciting, etc. Although many people may have felt “annoyed” or even “pestered” by people pushing flyers, etc. on passersby, leading to policies against “congregating, soliciting and disturbing.” The mall managers will say it is private property; private property protections are important. However…
There is a very good chance that this mall, like others [see here, here, here and here], or its owner received tax breaks and/or incentives from government somewhere along the line. That makes those with taxpayer-funded benefits even more quasi-public.
Malls, like train stations, airports, halls, squares, universities, sporting arenas and even grocery stores are quasi-public places. A great deal of society depends upon these markets for basic needs, they are clearly places of public interest, and depending upon the arrangement, there may be numerous ties between the public & private sector which are of importance to the rules of the game established by the private business.
This ground is gray, but has been protected and recognized in numerous court cases. The Justia US Law website explains:
Quasi-Public Places.—The First Amendment precludes government restraint of expression and it does not require individuals to turn over their homes, businesses or other property to those wishing to communicate about a particular topic.1219 But it may be that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it. In Marsh v. Alabama,1220 the Court held that the private owner of a company town could not forbid distribution of religious materials by a Jehovah’s Witness on a street in the town’s business district. The town, wholly owned by a private corporation, had all the attributes of any American municipality, aside from its ownership, and was functionally like any other town. In those circumstances, the Court reasoned, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”1221 This precedent lay unused for some twenty years until the Court first indicated a substantial expansion of it, and then withdrew to a narrow interpretation.
These places shouldn’t lose all private property protections, but with respect to the fact that have invited the general public to their premises (not a private club, for instance) there should be recognition and respect for Constitutional rights – first and foremost with the freedom of speech.
Some forms of leafleting, picketing and protesting have been defended on such private premises as malls and privately-owned cities while others have not. Justia outlines that here.
We all know that you can’t yell ‘Fire!’ in a theater, but doesn’t that imply – by extension – that quietly whispering it or holding prayer at an audible decibel should be tolerated, however reluctantly? There probably are some common sense limits – the private property manager at a quasi-public space probably has cause to intervene with ‘disturbances’ and disorderly behavior; but that exception should not be used to infringe upon speech in general. It’s obviously not OK to persecute Christians for holding hands at a dining table.
Christians and any religious peoples should be outraged over this; so should everyone else. If you want to chew upon some other implications of others in the Bill of Rights – which shall not be violated by government, and should be respected by all as the floor for a decent society, consider the many stores that have skirted around using TSA style checkpoints in the name of controlling “shrink” from theft; but these shoppers should be insulted at the treatment – the vast majority have not and would not steal from the place; no accusations were made, no police called to investigate; many stores won’t actually call the police or apprehend suspected shoplifters for fear of lawsuits, yet they will rely on the appearance of a required search and treat everyone with suspicion (Walmart is a prime example here).
Walmart Pre-Crime Treats All Customers Like Criminals
Is it OK to search these customers? Sure, they could probably shop somewhere else; but what if this was done in grocery stores and there was no where else to buy food (Venezuela is currently requiring fingerprints to purchase food due to shortages)? Would it be ok then to require consent or at least resigned complicity with a search at the door?
What about even the 2nd Amendment? Many malls have no gun policies; but terrorist and crime organizations have identified malls as public targets to achieve political objectives; various authorities have identified the risk of attack in malls; numerous shooters have randomly opened fire on shoppers; though the media failed to report it, armed citizens have stopped mass shooters dead in their tracks in malls, stopping them from killing more. Do people have a right to defend themselves in such a place or not? Should they only shop there if they consider the possibility of people being caught helpless there, waiting for official assistance that may or may not come in time?
Have malls and other public places been miscategorized as “private property” when they are actually quasi-public/quasi-private? Are there any protections in place for the rights of Americans when they are shopping in places where many in the public go and depend upon? What if this were not just about Christians, but Christians handing out flyers in the parking lot near the entrance?
I for one believe free speech, popular or unpopular, should be protected in most instances… what about you?