Give Peace a Chance:

I really hate to cover up the poem below, but somebody asked me a question so I have to answer it here. Still, scroll down and look at the tale of Ben Saintclair.

Anyway, Kathleen asks (The 5.3.03 post, her hotlink seems broken, but here it is), whether/why a shopping mall owner can kick people out for wearing "peace" shirts.

As usual, Eugene Volokh deals with this well, but I'll try to sum things up here. First of all, it's worth noting that it looks like the protesters were doing more than just wearing shirts, they were bothering customers, which is what prompted a complaint to management. Copies of the complaints are here.

But that's not important. Suppose the cases was really as simple as the NYTimes reports it. Kathleen questions the "It's like a house justification," somewhat rightly so, by pointing out that the same justification is not allowed to keep black people out of the mall. Here it's worth remembering that race is different. So is religion, and a few other things. A shopping mall owner cannot discriminate on the basis of race or color, but he *can* discriminate on almost any other basis he wishes. The case that establishes this broad property right is Lloyd v. Tanner which overruled the case from four years earlier, Amalgamated Food v. Logan Valley. In fact, this may be one of the few free speech issues where the law is actually clear-- so far as free speech laws are concerned, private property is not a public forum. This is different from the distinction used for discrimination-type law, where certain types of private property can be "public accomodations" (like a hotel or a restaurant). In general, free speech rights apply mostly to public fora (and to a limited extent to other public property), but not to private property. The best example might be a T-Shirt that says "Fuck the Draft". The Court held that the First Amendment protects your right to wear this shirt inside a public courthouse, even if people may be offended by it. Yet when the Maitre'D at Seasons demands you cover the shirt with a blazer, you have no First Amendment claim against him. Ditto shopping malls.

So. Racial discrimination is one thing, and speech is another. The former applies in places of public accomodation, which can be private property. The latter applies to a limited extent on public property (non-public fora) and to a much greater extent in public fora. If you own a lunch counter, you have to serve black customers, but you don't have to take any lip.

Now, go read about Ben Saintclair (below).