The complex role of malls: private but sort-of-public spaces

Courtesy of the Minnesota Historical Society
Southdale Mall, 1956.

Victor Gruen, inventor of Edina’s Southdale Mall, had dreams of saving ruined cities. As he saw it, postwar America had fallen on hard times, ruined by planners and their monolithic neighborhoods. Gruen wanted nothing more than to resurrect the vibrant street life of his native Vienna.

“A healthy urban heart pulsates with life day and night,” he wrote, “[and] attracts creative people … those who would value intimate contact with urban features and for whom, whether they are wealthy, middle-class, or poor, the city is a way of life.”

Today, of course, along with cream cheese wontons and Post-It Notes, Gruen’s indoor shopping mall is Minnesota’s most influential invention. Southdale’s two-story enclosed atrium, parking-moated shopping building is so widely copied that it’s banal. Walking around Southdale today, it’s difficult to discern its utopian past because, as a shark must move forward to survive, the nature of a shopping mall is to endlessly remake itself. Thus the Mall of America’s official slogan is “always new.”  

But over the last few months, conflicting claims have emerged about how malls fit within Twin Cities society. (“#Itsmymall!” “No, #itsmymall!”) The seemingly audacious protest by the #blacklivesmatter movement and subsequent reaction by the Mall of America and the Bloomington prosecutor illuminate the complex relationship that shopping malls have as public and private spaces. Like it or not, they are simultaneously massive private companies and rough, if degraded, facsimiles of Gruen’s public sphere.

A brief history of shopping in quasi-public

In writing about Minneapolis’ new Downtown East park, I outlined how the concept of “public space” is not a given. Rather, public space is an outcome of conflicts large and small, a kind of massive social game with rules, territory, borders and police. From unspoken social norms (think George Costanza screaming “We live in a society!”) to large-scale political demonstrations, what’s allowed in public becomes the battleground of everyday democracy.

In the capitalist city, these contestations are particularly vivid touching our shopping spaces. The definitive work on the matter is likely Walter Benjamin’s posthumous (and famously messy) work, “Arcades Project,” where the leftist sociologist cataloged changes surrounding shopping streets and department stores in 19th-century Paris. The book is an encyclopedic compendium of news clippings, quotes, observations and short essays arranged by theme: boredom, sales clerks, social movement, the streets of Paris, advertising. 

Benjamin’s “arcades” were kind of like 19th-century skyways, narrow interior corridors lined with shops, “a recent invention of industrial luxury … extending through whole blocks of buildings, whose owners have joined together for such enterprises,” as Benjamin describes.

“Lining both sides of the corridors, which get their light from above, are the most elegant shops, so that the arcade is a city, a world in miniature,” he writes.

What obsessed Benjamin, and other Parisian contemporaries like Baudelaire and Balzac, were the radical urban transformations taking place around the new streets. Entire neighborhoods of sometimes-unruly peasants were demolished and replaced with high-class consumerism. Even in the chaos of urban Paris, to read through the literature is to feel the sharp distinctions between private and public.

Southdale: Victor Gruen’s failed utopian dream

Victor Gruen’s Southdale, built in 1956, remains a definitive case study of the paradox of public malls. Gruen himself, a loquacious Austrian émigré (and an admitted socialist), had particular notions about what made a good city.

“We must learn how to vary the elements of urbanization if we do not want to lose the rich differentiation in human experience that is the salt of the earth,” Gruen wrote in his manifesto, “The Heart of our Cities.” “If we do not succeed in accomplishing this, we shall lose the city forever, and with it will go urban culture.”

As he sketched it out, Southdale was meant to be a dynamic public space that welcomed many different kinds of activity.

“What is novel and revolutionary [about malls like Southdale] is the manner in which the store buildings are placed,” he wrote. “The buildings form a cluster of great compactness, with spaces between them reserved for pedestrian use only and equipped with such amenities and improvements as landscaping, rest benches, fountains, and even, in some cases, the work of creative arts. … Some of them are as esthetically as pleasing and as busy as the long-lost town square of our urban past.”

Gruen’s dream of public malls never quite came true. Instead of a “town square,” malls evolved into places dedicated to the pursuit of profit. For example, today’s malls are painstakingly designed to reduce “threshold resistance,” our reluctance to enter into new stores, by creating permeable walls and borders. “Adjacencies” between like commercial spaces create particular modes and micro-climates of consumption, and how two-story malls interact with surrounding roads and parking lots is often carefully calculated to maximize exposure to products. (Think about the labyrinthine design of an Ikea, or about how mall escalators are often found only at the far ends, and you get the idea.)

Changing tastes in mall design

As Frank Bures pointed out, today’s malls “have been on decline,” and examples of defunct malls are a familiar sight in every city; the Mall of America (and its planned, even larger, Miami sibling) is more the exception than the rule. Malls have been an object of ironic critique for so long — “Mallrats,” “Dawn of the Dead,” “Fast Times at Ridgemont High” — that retail designers are trying again to reconfigure the relationship between commerce and the city.

Emily Fedoruk is a cultural studies graduate student at the University of Minnesota who studies malls across North America, and calls the Mall of America “one of the most highly securitized malls” she’s ever seen. Fedoruk’s research examines how many contemporary malls have begun incorporating elements of public space and street life into their designs, particularly public art, murals and even poetry.

“I really like Southdale,” Fedoruk told me this week. “When you look carefully, its modernist design is still there even though they’ve catapulted stores like PF Changs onto the outside. Gruen’s socialism tried to push back on the idea of the space of the mall as this all encompassing commercialized space.”

Fedoruk points to the way that the rules of conduct at the Mall of America restrict access. For example, the mall prohibits “conduct that is disorderly, disruptive, or that interferes with or endangers business,” along with a list of clothing restrictions and a thoroughly enforced age curfew for certain hours of the day. While many malls have similar rules, and the Mall of America certainly has legitimate concerns about being a symbolic target, the idea that malls cleanly fall outside the public realm is problematic for many people.

“Malls bring out the mini-Marxist in everyone, these shrines to consumption that bring out ennui for people by just being there,” Fedoruk explained. “What’s at stake in the question of the Mall of America is the possibility that this is something that is interesting to everyone. Symbolically, malls are more public than they can be concretely. I think that is the public-ness, that everyone has something to say about malls.”

And the problem of public space malls is not going away. Fedoruk points to trends that increasingly blur the line between public and private, indoor and outdoor spaces. Around the country outdoor malls like the Shoppes at Arbor Lakes or the new outlet mall in Eagan are being built, though as a recent policing incident reveals, disparities around security and race are still a problem.

MinnPost photo by Bill Lindeke
Shoppers at the “Shoppes at Arbor Lakes” outdoor mall in Maple Grove.

The public claim to malls

Pushing against the boundaries of public space, as the #blacklivesmatter has done by demonstrating at the Mall of America or on Interstate I-35W, has long been the most crucial kind of political activity. (Think of lunch counter sit-ins, or the private bus company that transported Rosa Parks.) Both freeways and suburban malls play crucial parts in creating the Twin Cities’ landscape of racial inequality, by limiting how and where public encounters can take place. After all, malls are carefully designed to be places to maximize shopping to the point where it is the only remaining kind of “free speech.”

Mapping the evolving intersection of public space and shopping reveals how difficult this tension has been to resolve. Urban retail spaces like Nicollet Mall, downtown skyways, branded business districts, or shopping malls are carefully shaped to encourage particular behavior. And, inevitably, these choices have important social implications.   

If Victor Gruen had had his way, there would have been no doubt; modern shopping malls would be public space. But the way that history played out, Gruen’s utopian dream remains difficult to grasp. Toward the end of his life, he began to condemn contemporary shopping malls, calling them “customer traps, [disfigured by] the ugliness and discomfort of the land-wasting seas of parking.”

I’d like to think that Gruen is wrong, and that Twin Cities malls can still be places for important public conversation. As the debate about the Mall of America shows, people remain emotionally invested in what happens in the Mall of America atrium. 

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Comments (35)

  1. Submitted by Paul Udstrand on 03/27/2015 - 09:39 am.

    Consumerism

    Just because you shop someplace doesn’t mean you own it. Gruen is one of a long line of architects who thought they could do social engineering, this delusion is persistent, even today.

    Listen, you create a place for people to go shopping… you will attract shoppers, you know, the kind of people that camp out in parking lots over night so they can be the 1st in line when the doors open? Is THAT your idea of community? You put those shops inside a big building that’s privately owned, you’re creating a shopping mall, not a town square.

    Not only do shopping mall attract shoppers, but more importantly they attract shops and shop owners. These people are there to make money, they pay rent to do so, they’re not there to be a gathering place. In fact, if people “gather” but don’t shop… the mall goes under.

    Shopping is not a civic duty, nor are shoppers the equivalent of citizens. A consumers only responsibility is to consume, find stuff they want to buy and buy it. Consuming is about satisfaction.

    Citizenship is not about satisfaction, it’s about responsibility, governance, community, justice, freedom, etc.

    The idea that people somehow meet or fulfill they’re obligations as citizens by being consumers is one of the most toxic mindsets to emerge in the 20th century.

    You’re never going to convert shopping malls into real town squares for soooooo many reasons. The best you can do in a mall is create the illusion of community, ever been to Downtown Disney? The “real” functioning downtown in Disney World? I have, there’s nothing “real” about it.

    We gave ourselves a 1st Amendment guaranteeing a right to speech, but we forgot to guarantee that we’d have a place to speak. Let’s stop pretending that we can elevate these monuments to consumerism into “free” spaces and start building actual free spaces. You want a real Town Square? Build a REAL Town Square.

  2. Submitted by Ray Schoch on 03/27/2015 - 11:40 am.

    Adding to the difficulty

    …of viewing a mall as a purely private space is the fact that most of them have been constructed with the active participation of local, tax-supported governments, and many have received incentives from those communities in the form of tax relief, TIFF arrangements for development, and sometimes, as in the case of MOA, direct financial support (i.e., taxpayer dollars). I don’t personally see how an operation that requires taxpayer dollars to exist can be reasonably treated by the law as purely private.

    On the other hand – as the #blacklivesmatter demonstrations showed pretty conclusively – if we treat a mall as purely public space, it’s easy to disrupt what business owners reasonably see as its primary purpose. A big, public demonstration almost certainly inhibits some shoppers from spending their money or visiting as many retail outlets as they might otherwise do.

    It’s a thorny issue. If commerce is the only kind of activity allowed, there’s truly not much reason to spend any time at a mall beyond the exchange of goods for money, a line of thought that’s self-defeating for any mall, and a good reason why the MOA has bells, whistles, roller-coasters, etc., to entertain people in between periods of adding to their consumer debt. If a mall exists strictly so that people can exchange goods for money, many people will (and do) simply fire up their computers and shop online – not something mall owners and/or developers want to encourage.

    Robert Putnam at least hinted at this set of conflicting purposes in “Bowling Alone.” For many, and not just teens looking desperately for a place to hang out, the mall is the equivalent of the town square. One problem with than analogy, of course, is that the town square in centuries past, was purely public space – often surrounding the county courthouse or whatever passed for City Hall. While a case can be made that malls are “sort of” public space, I have the same difficulty thinking of them as “purely public” space that I have thinking of them as “purely private.” We’ve created our own monster, so to speak.

  3. Submitted by Tim Milner on 03/27/2015 - 12:27 pm.

    Question for Ray

    in 1995, the city of Farmington offered my business a Pay as You Go TIFF financing package that allowed me to turn a piece of farm land generating ~$1500 an acre of property tax into one housing my business that now generates ~$40,000 an acre of property tax. The TIFF was available for the 1st 7 years, after that, it expired. Pretty good deal for the city wouldn’t you say?

    But, following along with your first paragraph, my business must be partial “public” space.

    Really?

    • Submitted by RB Holbrook on 03/27/2015 - 12:37 pm.

      Point of clarification

      Is your business premised on acting as a sort gathering space for the public? In other words, do you depend on the physical presence of masses of customers who are invited to come in and spend money (even to the point of encouraging them to remain for some time?

    • Submitted by Michael Hess on 03/27/2015 - 12:59 pm.

      Good point overlooked by many

      People claiming that despite the court ruling the use of public funds somehow converts the mall to a public space tend to ignore the many more mundane public subsidies that other private developments in the state have taken advantage of.

      The question below – if the business does or doesn’t require consumers to visit is irrelevant – if you are on private property you are subject to their rules and regulations.

      For example Mayo Clinic requires lots of people to enter their buildings to be successful. Mayo Clinic is a private hospital and you can bet they would not suffer a huge uninvited protest that was unrelated to their business. Mayo clinic has received state aid for their expansions. 3M has received state aid to expand their R&D center. Other companies like Baxter are recieving aid to relocate here. The state, all states, use this mechanism to drive a private commercial entity they think will in the long run boost the states economy, never creating quasi-public entities in the process.

      • Submitted by RB Holbrook on 03/27/2015 - 01:40 pm.

        In other words

        Let the state shovel money at private businesses, but make sure the businesses who get the money have no obligation to the public. Now, that’s what I call “mooching.” It doesn’t matter how many states do it (how many of the business people who accept this money would cast themselves as proud deffenders of free enterprise, do you think?).

        The Mayo Clinic and 3M do not style themselves as public gathering places, and the state money they get was not premised on that role. The Mall of America, like Target Field and the impending Stately Wilf Manor, received the aid premised on their role as a gathering place.

        • Submitted by Michael Hess on 03/27/2015 - 02:44 pm.

          Misrepresentation, again

          No one said “no obligation to the public”. it just may not include the very specific obligation you and others would like to see, which is to allow public assembly wherever and whenever you want for whatever cause.

          In fact I think many of these public subsidies which the government seems to think work out positively for the state do have specific obligations like a certain amount of investment, or certain hiring targets, and probably in some cases some public space development. That the politicians job to “shovel money” where they think it will drive a payback for the state and we have to hope they pick well.

          The mall did not get their investment from the state to be a public gathering space. They got their investment to drive more shopping which means more jobs and more tax revenue for the state. Do you seriously think Minnesota would hand over subsidies for warm and fuzzy goals like public gathering? If all the MOA generated with their big expansions was more public gathering, that would be a big loss for them and the state. Conversely if people zipped in and out of the mall as quick as possible and bought stuff, they’re big winners with no “gathering”. Don’t confuse the purpose of the investment or the establishment of the mall itself.

          • Submitted by RB Holbrook on 03/27/2015 - 03:28 pm.

            Misunderstanding, again

            I remember how the MOA was presented to the taxpayers back when it was being planned The developers sold it as an entertainment as well as a shopping destination. If people ” zipped in and out of the mall as quick as possible and bought stuff,” much of its justification would be lost.

            “Do you seriously think Minnesota would hand over subsidies for warm and fuzzy goals like public gathering?” We build public parks, but that’s beside the point. Has anyone ever been driven from the Mall of America just because they didn’t spend enough money? It is hoped that allowing the public to congregate will lead them to spend money. That has proven to be an accurate assumption.

            • Submitted by Michael Hess on 03/27/2015 - 05:54 pm.

              So Close – You almost got it there

              We do build public parks. I agree with you, they are for the public to gather. but they are not subsidies to commercial entities, they are a public asset.

              An assembly in a public park would have been a great idea.

              The fact a commercial business needs members of the public to enter so they can make money doesn’t relieve them of the ability to control what happens in their business, and the fact the government gave them some incentive to establish their business doesn’t mean they gave up those rights.

        • Submitted by Tim Milner on 03/27/2015 - 03:29 pm.

          RB

          I have an obligation to the public – to pay ~$40,000 per acre in property taxes to help fund the local schools, police, fire, etc. I also have an obligation to maintain my property per the covenants contained in the development agreement.

          Did I misunderstand what my obligation is? Or is there some unwritten requirements out there that others are imposing on me? (and my agreement with the City)

          • Submitted by RB Holbrook on 03/27/2015 - 03:58 pm.

            Probably not

            I don’t know what type of business you have, or what your understanding with the city was, but I will say no, probably not. I assume you gave them an accurate description of your business, and how it functions. I’m going to go out on a limb and say you aren’t running a shopping mall.

            That is the crucial difference–for what purpose did you get the TIFF?

      • Submitted by Adam Miller on 03/27/2015 - 02:30 pm.

        Blanket statements in either direction are problematic

        A business that holds itself open to the public is simply different from one that does not. They can’t discriminate among their potential customers on the basis of race, for example.

        It’s simply more complicated than “it’s private property, they can do what they want” or “they’re open to the public and get subsidies so they have to allow protest.”

        And, of course, there is always a difference between what they are allowed to do and what they should do.

  4. Submitted by William Lindeke on 03/27/2015 - 12:53 pm.

    ACLU’s stance

    The point the piece was to suggest that this is *not* a clear black-and-white issue, but rather something that we as a society need to carefully decide. Other times and place have had different answers about whether markets and urban shopping spaces are public or private. It’s question of social priorities.

    I find the ACLU’s stance on this interesting:

    “The ACLU has long argued that malls are basically the new public square. People come there to gather, to meet, to have fun and of course to shop. But the Mall of America is not like a single entity store on the street or a business office, it is a fundamentally a place for people to gather and visit in groups. They allow everyone in (unless you have an individual ban), and are thought of as a hub of a city, especially in a cold climate like Minnesota. While we have not successfully won this argument in court, we still wholly believe that malls should be treated as such. They want all the benefits of being a public square, but not any of the potential responsibilities that come with the enormous benefits, and that isn’t right. In other states like California the courts have decided that in fact malls ARE public squares. ‘

    [See the rest here: http://www.aclu-mn.org/blog/tag/black-lives-matter%5D

    • Submitted by Paul Udstrand on 03/28/2015 - 08:52 am.

      I disagree

      I’m not saying it’s “black and white” but there’s a reason the ACLU can’t prevail with this opinion in court.

      “But the Mall of America is not like a single entity store on the street or a business office, it is a fundamentally a place for people to gather and visit in groups.

      This is a just another way of saying that because we shop there we own the place, and that’s simply a specious argument.

      Furthermore, THAT mall, as big as it may be, is not a “hub” or “central square” of the Twin Cities. Bloomington simply has no “hub”, like many suburbs. People are invited in to all retail businesses, that doesn’t make them public squares. And many retails spaces and business’s have received public subsidies, and THAT doesn’t make them public squares either.

      Look, is Disney World the “hub” of Orlando? Does that make it a public space?

      OK, I know that mall is big, and a lot of people go there, but we got something like 3 million people in the Metro Area and believe it or not most of us don’t spend our days hanging around malls. NONE of our malls has ever been the center of our Metro universe. Yeah, they’re big, and they were more or less popular at one point or another, but let’s not get carried away here.

      As far as I’m concerned that mall is the least interesting feature of the Twin Cities. I think the River, the Lakes, the Parkways, Bike Paths, even the Skyways, are far more interesting than the MOA. Architecturally the MOA is one of the biggest duds ever built in the Twin Cities. From the outside it looks like a giant parking lot, and on inside it looks like any other mall but bigger. A place to meet? You couldn’t pick a more inconvenient place to try to meet up with someone. You’re telling me THIS is the “hub” of my city? THIS is my Town Square? Booshwa!

      This is consumer mentality pretending to be civic reasoning. A Mall Rat is not a civic entity, it’s a bored teenager.

  5. Submitted by Peter Rachleff on 03/27/2015 - 01:05 pm.

    Private property and free speech

    This is a thoughtful and thought-provoking article. There is even more to consider. Please see my article from the Twin Cities Daily Planet, written in the aftermath of the exclusion of Idle No More participants from the mall, but also invoking earlier instances of exclusion of people seeking to exercise free speech rights. See tcdailyplanet.net/blog/rachleff/mall-america-free-speech-and-labor-movement.
    While the founding fathers of the US clearly intended to prioritize property rights over civil rights (see Charles Beard, AN ECONOMIC INTERPRETATION OF THE US CONSTITUTION), the constitution has been amended many times. As times change, as social movements emerge and express themselves, our rules have been changed. Yet this nexus — the contradiction between property rights and civil rights — remains at the heart of a capitalist democracy/democratic capitalism.

  6. Submitted by Paul Udstrand on 03/27/2015 - 01:33 pm.

    Public subsidies

    People keep bringing this up but I don’t see a lot of people thinking it through. The Vikings stadium is the most heavily subsidized building in the history of MN, do you think that’s gives the public the right to have a demonstration during a game… like say: the Super Bowl? Or maybe the fact the public paid for the stadium means the owners can’t charge for tickets to get in? And I hate to tell you this but but if you live in a house or an apartment your property is publicly subsidized in a variety of ways ranging from your utilities to your renters and homestead tax credits. Does that mean I can camp out on your front lawn? Do I even need to mention farm subsidies? Tell a farmer you have a RIGHT to be on his or her land sometime why don’t you.

    Listen, I’m a Social Anarchist and even I don’t believe all property is theft.

    Shopping malls are a business model, regardless of what any architect might have thought 50 years ago. An architect can design a mall, but the people who actually built it and paid for the design had a business model, not a community space in mind.

    The fact that so many people spend so much time in shopping malls may be a sad fact of consumer driven societies, but it doesn’t make malls public spaces.

    • Submitted by RB Holbrook on 03/27/2015 - 03:00 pm.

      “Shopping malls are a business model”

      And that business model is what distinguishes them from other types of entities that receive public subsidies

      • Submitted by Paul Udstrand on 03/27/2015 - 03:38 pm.

        Not really

        Every business that gets a subsidy has a business model, malls are no different in that regard. Malls aren’t the only retail businesses that get subsidies and all retail businesses welcome shoppers and provide public access. The only difference between a mall and an individual retailer like Target is multiple retailers.

        And don’t forget the MN supreme court has already ruled on this… the mall is private property, period.

        http://mn.gov/web/prod/static/lawlib/live/archive/ctappub/9804/c7971381.htm

    • Submitted by Raj Maddali on 03/27/2015 - 03:45 pm.

      Public Subsidies are different from a public facility

      You keep bring it up and conflating the issue. You point to a subsidy and claim its the same as a public facility.

      A train station at a mall is a public facility paid for rented and subsidized by govt. Its a public easement,Not a subsidy. The easement at the Mall, which came AFTER the Supreme court ruing, has never been decided by any court.

      • Submitted by Paul Udstrand on 03/27/2015 - 04:29 pm.

        Raj

        No one here has claimed that a subsidy is the same thing as a public facility. Subsidies are financial mechanisms, facilities are physical realities. The train station is a public facility, the mall is not. Easements aren’t decided by courts, this was negotiated not litigated before the station was built. The existence of the train station does not change the ownership of the mall, or present a material legal challenge to existing law.

        • Submitted by Raj Maddali on 03/27/2015 - 09:27 pm.

          Paul

          A public train station inside a mall makes that a public accommodation. There is no proof, nor have you provided, any proof that makes the train station not a public accommodation.

          An easement in my private home doesn’t take away the fact that i own the property. But the easement obligates me and future owners to the public entity that owns that easement.

          There is no part of the Supreme Court decision that references this easement. Because it was not build. And no part of the decision that grandfathers it in. I

          • Submitted by Paul Udstrand on 03/28/2015 - 11:49 am.

            Raj… again

            Raj, It would be nice if you made some effort to understand the information I’m trying to provide. You can’t just make stuff up.

            “An easement in my private home doesn’t take away the fact that i own the property. But the easement obligates me and future owners to the public entity that owns that easement.”

            Maybe I’m not explaining this right but you can look up what an easement is if this is THAT important to you. Your illustration above makes no sense, no one “owns” an easement, and easement is an agreement that grants passage through an owners property with specified conditions. Most easements by the way can be canceled by the property owner at any time if the conditions of the easement are violated. Easements grant passage, not rights. There’s simply no way that an easement could force the private entity that owns the mall to allow public demonstrations. And you’re assuming that the train station itself is sitting on public owned land, that may not even be the case. The train station in front of the Vikings station is sitting on private land for instance.

            • Submitted by Raj Maddali on 03/29/2015 - 12:43 pm.

              Paul….again

              Who’s making stuff up. Me or You.

              “no one “owns” an easement” – The problem with this is, I never stated it. I stated , very clearly, the “easement obligates”.

              Sure you cannot cancel an easement. Just like you can void any contract. And pay the penalty. Until that time the easement is a public access easement. The easement part of the Mall has never been covered in Wicklund. Prove it.

              The train station in from of the Viking Stadium is state owned. Facts matter. And your facts are wrong.

              The Sports Facilities Authority purchased the Downtown East plaza from a private developer last year for $17.1 million.

              http://www.startribune.com/local/minneapolis/272807321.html

  7. Submitted by David Markle on 03/27/2015 - 05:29 pm.

    An interesting opinion

    Seems to me Judge Jack Nordby, a noted legal writer, delivered an interesting opinion relevant to this subject. I’ll leave it up to attorneys reading this article and comments to elaborate.

    • Submitted by Paul Udstrand on 03/28/2015 - 10:34 am.

      Settled law is not opinion

      Nordby was the judge that originally dismissed the charges against animal rights demonstrators at the MOA back in 1999. Nordby concluded that public subsidies create constitutional rights. Nordby was over-ruled, the State Supreme Court who ruled that subsidies do NOT make private property public, or create constitutional rights on private property, they settled the matter, THAT’S not opinion. State. v. Whicklund is the law, and that is a binding decision. In response to the State v. Whicklund decision Nordby disagreed and wrote an opinion piece laying out his argument. However, in that opinion piece Nordby Wrote:

      “I am naturally bound by the result reached by my superiors on the Supreme Court, and I do not propose to disobey it.”

      This is why they called it: “settled” law or “binding precedent”. Even a judge like Nordby who clearly disagrees seriously with the ruling, is bound to enforce it.

      The difference between a Minnpost comment section and a your living room and a court room is that courts do not waste valuable time re-arguing settled law. Courts make rulings, and establish precedent, they don’t let lawyers present the same arguments over and over and over again. Yes, rulings can be overturned but the courts have very very specific procedures and conditions for reconsidering settled law, you don’t get a do-over just because you disagree with or don’t understand a ruling.

      There is absolutely nothing substantially different about the MOA now than was the case in 1999. Nor are these demonstrators significantly different than the animals rights demonstrators originally charged in 1999.

      What happens is that in pre-trial hearings motions regarding rules of evidence are filed. The defendants can file a motion to challenge State v. Whicklund but the odds are long. Most likely the judge won’t entertain a challenge to settled law, these arguments about public vs. private property etc. won’t even be heard in court. Sooner or later someone will point out the fact that IF the point of the demonstration was to challenge Stave v. Whicklund, all the demonstrators had to do was apply for a permit to demonstrate at the Mall, they would have been denied. There was no reason to trespass and get arrested if your objective was challenge State v. Whicklund. These demonstrators never bothered to apply for a permit. Furthermore, eventually someone will point out that the group is: “Black Lives Matter”, not “Black People For Free Speech In Shopping Malls”. There’s not obvious connection between State v. Whicklund and racism.

      Now back in the 80s, People got arrested for trespassing on Honeywell property, and at those trials on occasion trial judges allowed evidence regarding war crimes, I know some defenses were successful but I can’t remember why. At any rate, in THOSE cases people were demonstrating alleged war crimes being committed by Honeywell, and they were trespassing on Honeywell property. The whole point of the Honeywell Project was to put Honeywell on trial. In this case, no one’s accusing the mall of a actually doing anything wrong, the demonstrators were simply using mall property without permission to make a complaint about some else entirely.

      In the Honeywell case the defense was: “We trespassed because we’re making a citizens attempt to prosecute Honeywell for War Crimes and this is the only avenue available to us.” In the BLM case at the mall the argument is: “We were protesting racism and got arrested for trespassing at the mall, so now we want to challenge State v. Whicklund.” That’s a thin excuse for challenging binding precedent.

      • Submitted by Raj Maddali on 03/29/2015 - 01:00 pm.

        Except

        “There is absolutely nothing substantially different about the MOA now than was the case in 1999. Nor are these demonstrators significantly different than the animals rights demonstrators originally charged in 1999.”

        There is a Federally funded public Train station. And the mall argued at that time it had no state facilities on its premises !!! And nothing is different. ?

  8. Submitted by chuck holtman on 03/27/2015 - 06:44 pm.

    Herbert Marcuse’s “One-Dimensional Man” (1964)

    coined the concept of “desublimation” as a feature of modern capitalist society – where the deep, murky (i.e., sublimated) strivings of the individual are brought to the surface and translated into superficial desires that can be readily served by commerce. At the time, it was the washing machine that would make the housewife feel fulfilled. Now it is, e.g., the passing off of banal, conformist consumption as renegade adventure.

    I’d say to succeed, civic society must operate on the basis of actual strivings. It must be the process of people thinking through who they are and why they are here, and working and struggling with others to create a locus of lived life that is the product of the similar engagement of all. Conversely, a mall might be defined as the locus of maximal desublimation.

    Therefore, I think that “mall” and “civic life” are mutually exclusive. That folks want free speech at the mall only reflects how far real civic life has been displaced in our society in favor of desublimated consumption. There’s no point in giving a speech in the public square if everyone is at the mall. There’s a very strong jurisprudential basis to impose “public space” obligations on malls, regardless of what judges might say. But civic life can’t be recaptured at the mall, so it’s fairly pointless.

    • Submitted by Paul Udstrand on 03/29/2015 - 09:54 am.

      Thanks Chuck

      I know I studied desublimation at some point but I had forgotten the reference. I’m glad you posted this because it’s a little more clearly presented than what I’ve been coming up with. Basically I’ve been saying that I think the idea that shopping malls are civic centers is an expression of perverse consumerism rather than legitimate civic reasoning. There’s no coherent way to combine consumerism and civic responsibility because consumerism distorts civic reasoning… I shop therefore I am.

      I actually find the idea of trying to pretend that shopping malls are Town Squares or centers of civic life kind of repulsive. The idea that public access to a shopping mall is some kind of expression of Marxism is way bizarre and really illustrates the extent to which consumerism can distort political and economic paradigms.

      The problem with suburbs like the one I grew up in (St. Louis Park) is that we have no real downtown, we built blocks and blocks of housing track without any public squares or spaces other than our parks. And even the parks are quite regulated. I can understand the impulse to treat shopping malls “as if” they are some kind of civic center in the absence of actual civic centers, but it’s an illusion of community at best. The real response to civic impulses is to build civic spaces, not pretend that these monuments to consumerism ARE civic spaces.

      What I see going on in this conversation is civic confusion. The law is actually quite clear, and frankly, I don’t think most people have a problem with the law. State v. Wicklund (establishing MOA as private property) isn’t bad law, it’s not a bad ruling. Our society believes in private property, and property rights, and I believe in private property and property rights. Why is no one complaining that we have to buy tickets to get into publicly subsidized arena’s and stadiums? Why is no one complaining that we have no right to camp in public parks and have a camp fire? Because we don’t shop in those spaces. Ultimately why did BLM choose the MOA as a location? Because it’s a warm place with a food court? Why did they think they could get the publicity without the prosecutions? Because they were thinking like consumers instead of citizens… we shop there, why can’t have a demonstration there?

      • Submitted by Raj Maddali on 03/29/2015 - 12:53 pm.

        Arguments all over the place

        No one has a right to a free tickets in a public venue. But everyone has a right to buy a ticket in a public venue. Similarly the state cannot build a public accommodation in a private place and then restrict access. If there is a ticket to enter the train station, then i have to pay it, but that does not allow the Mall to determine who has a right to enter a federally funded train station.

        If the city of Eagan holds a meeting in a private mall, i have a right to attend that meeting. If the mall doesn’t like it, then don’t allow the city to hold a meeting. Nobody put a gun to the malls head to build a train station (after Wicklund). But they cannot claim protection under Wicklund when they’ve changed their relationship with the State.

        Just so Paul knows, I was the parent who challenged the City of Saint Louis Park and their “historical” access to soccer to the SLPSA. The city put forth the same arguments that they were under no obligation to provide me fields to start my own soccer club. I pointed out that the fields were funded in some part by the Federal funds (through the schools). I won. Enough said.

      • Submitted by chuck holtman on 03/30/2015 - 09:58 am.

        Paul –

        I agree with you regarding civic space and consumer space – the latter doesn’t coexist with the former, it displaces it. Blocks on blocks of housing still can constitute civic space, if people are moving through it at human scale. Conversation – and the accomplishment of civic work – occurs in such circumstances. It doesn’t need to be a “public square” with speakers’ boxes.

        I don’t know the organizers’ rationale for selecting MOA – I haven’t followed it that closely. I’m presuming it didn’t involve a Marcusian critique of consumer society, but simply was because that’s where they thought they’d find a ready aggregation of folks to hear what they wanted to say.

        I agree the law is clear as to free speech in malls. But property rights are a social construct, with private and collective rights allocated in a way that best secures social goals such as freedom etc. Nothing in the constitution would prohibit the people, through their lawmaking representatives, from abolishing private property (though it would be a really stupid policy choice). The only constraint is the pace at which the shift in laws governing property rights occurs. Too quickly, and constitutional due process and takings are violated. Basically, it’s about protecting expectations based on the laws as they are. It would be sensible to attach free speech rights to otherwise private shopping enclaves because of their function in aggregating citizens. But the settled law says otherwise. Bloomington or the state could have conditioned its assistance on such things, but apparently they didn’t. And, as noted, it would be “free speech” space in name only since (most) folks don’t come to malls prepared to be challenged or engaged in a civic capacity.

        • Submitted by Paul Udstrand on 03/30/2015 - 01:52 pm.

          Actually…

          ” Nothing in the constitution would prohibit the people, through their lawmaking representatives, from abolishing private property (though it would be a really stupid policy choice)”

          I think the 4th Amendment would make the abolition of private property untenable:

          “The right of the people to be secure in their persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
          upon probable cause, supported by Oath or affirmation, and particularly describing the
          place to be searched, and the persons or things to be seized.”

          If the people have no private property, there would be nothing to “secure”?

          Coulda woulda shoulda whatever. Sure, they could have made free speech part of the deal, but you’re not going to apply it after the fact now. This just pushes us back upstream to the issue of public subsidies in the first place. I’m almost always apposed to these big corporate welfare programs precisely because they create corporate space, not public space. It was no accident or moment of carelessness that prevented free speech from being part of the subsidy deal with the Mall. Promoters of public subsidies always run smoke screens confusing the public domain with the corporate domain. They call private profit engines things like: “The People’s Stadium” for instance. Even the MOA is: “The Mall of America” as if it belongs to “America” rather than Canadian investors. Whatever. You can to pretend something is what it isn’t but you’ll get arrested for trespassing.

          I think Civic work does require space, that’s why we have courtrooms, Houses of Congress, and City Halls. That’s where our civic work gets done in St. Louis Park despite the fact that we’ve never had a town square. There and Face Book:) I also think we have a hard time establishing a sense of community in this country because people conflate consumer privilege with civic responsibility and rights. And I actually think there’s needs to be a place for demonstrations and civic disobedience, but we have that space, we don’t need to use the MOA.

          What I’ve been looking at here regarding BLM and the Mall incident looks more to me like a: “The customers always right” argument than any kind legitimate civic engagement. A legitimate civic engagement would acknowledge the fact that the people working, managing, and shopping at the mall are also members of the community. The city of Bloomington is a community and it’s government, police, and prosecutors represent that community. Everyone seems to be assuming that demonstrations at the mall are the best outcome for the ‘community” but they’re only looking at it from the perspective of a special interest group. Sometimes the hostility towards the community at large here is palpable. You can’t be hostile towards the community and claim to represent it at the same time without losing some credibility.

          The assumption seems to be that the community WANTS to convert the mall into a public space or a town square. What community? Hasn’t it occurred to anyone that maybe the reason shopping malls have failed to transform into “community” spaces over the last 60 years is that the community doesn’t support that transformation? Sure maybe the guy who designed Southdale had some ideas of his own, but clearly the people who have actually been using the place have had their own ideas. I think it’s pretty clear that people don’t want their shopping malls to be town squares, they want them to be shopping malls.

  9. Submitted by Jerome Hoffman on 03/28/2015 - 10:18 am.

    Mini-Marxist in everyone?

    Sorry, I don’t believe there is a mini-Marxist in everyone! That political philosophy that in its pure form has caused untold misery wherever it has been tried!

  10. Submitted by gary severson on 03/29/2015 - 01:19 pm.

    Southdale

    The downtown Minneapolis interests were interested in doming DT Mpls in order to counter the existence of Southdale. When they realized the cost was prohibitive the skyway system became plan B.

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