There is neither freedom of speech in your living room nor freedom of association at your workplace or where you shop. The Bill of Rights provisions that most take as near sacred and fundamental to America democracy simple do not protect as many freedoms in as many places as one might think. That is the hard lesson that Black Lives Matters (BLM) Minnesota leadership learned when Hennepin County Judge Karen Janisch issued an injunction barring them from demonstrating at the Mall of America. Correctly the judge limited the decision to the restraining order and did not go as far as the mall wanted in terms of ordering the leaders to communicate to its members and the public that the demonstration is off. That order would have been unconstitutional, a form a prior restraint.
Yet the simple truth is that the Bill of Rights does not apply to the Mall of America or any private property or action in the United States.
The Bill of Rights consists of the first 10 amendments to the U.S. Constitution. Introduced by James Madison in Congress in 1789, they were ratified by states and became the law of the land in 1791. The Bill of Rights includes provisions ranging from the First Amendment guarantees of freedom of speech, press, religion and association to the Second Amendment right to bear arms and to a host of other Amendments regulating searches, the taking of property, jury trials, and protections against cruel and unusual punishment. But what is important to understand with the Bill of Rights is that the amendments are limits only on government action, not private parties.
Consider the text of the beginning of the First Amendment: “Congress shall make no law …” Notice the language: It is a prohibition on Congress, the national government, from acting. The original Bill of Rights, including the First Amendment protections of freedom of speech and assembly, were originally prohibitions or limits on the federal government. These provisions did not originally even apply to the states and local governments. James Madison had proposed an amendment that would have protected these rights from the latter two, but it was rejected. In the famous 1833 Barron v. Baltimore the U.S. Supreme Court made that point clear that unless states had their own Bill of Rights, the federal one did not apply to them. It was not until after the adoption of the 14th Amendment in 1868 and subsequent Supreme Court decisions in the 20th century that the most of the Bill of Rights provisions have come to be incorporated as protections against state and local governments. For example, it was not until 2008 that the Supreme Court declared that the Second Amendment right to bear arms applied to states. Previous to that decision state and local governments could ignore that rights.
Thus it is important to understand that the Bill of Rights only extends to governmental action. Rights such as freedom of speech and association are protected only against limitations by the federal, state or local governments. Even then, these rights are not absolute; the government, according the Supreme Court, may impose reasonable time, place, and manner restrictions on where one, for example, demonstrates.
Free speech and association rights, however, do not at all extend to limits imposed by private people on private property. The government does not have right to tell you to shut up or ban you from associating in public places, but private people can do that. I can decide whom to invite into my house, what I want to read, or who gets a right to speak. The same is true for private employers regarding their workplaces. Perhaps what most people do not understand is that private employers can fire you if they do not like your political views. If they do so they are not violating your First Amendment rights because you do not have any free-speech rights against your employer. To invoke a colloquialism, our home is our castle. The same is true with private business and property: We can do just about anything we want it, deciding whom to invite in and what they can say or do.
This state action limit on application of the Bill of Rights protects people to say and do what they want with their own property. This is good. But unfortunately this legal framework has often been used to protect the rich, powerful, and often corporate interests. Judges once regularly issued injunctions to limit labor unions and political dissidents from picketing and assembling, and rights of private property also were once invoked to limit anti-discrimination law. Gradually legislation was adopted that protected workers, and businesses were deemed public accommodations that could not discriminate. Yet the law still does not treat workplaces and the places where we shop like governments. They are still private entities where owners are given broad authority over their property.
This legal framework is important because it explains why Black Lives Matter’s leaders lost. The Mall of America is not the government, and it is not public property. The Bill of Rights does not apply to it and one cannot invoke the First Amendment against it. Some states, such as California and New Jersey, have ruled that their own state constitutions do provide more rights than the U.S. Bill of Rights. These states have found that shopping malls effectively constitute the new public squares and that there are limited rights to freedom of expression there. The Minnesota Supreme Court’s 1999 State v. Wicklund rejected joining this logic, ruling then that the Mall of America was private property and a decision to ban demonstrations was private action and therefore not illegal.
Wicklund was wrongly decided, but it is the law of the Minnesota. There is no right to free speech or association at the Mall of America or any other shopping mall in the state. But this decision and an understanding of the purpose and structure of the Bill of Rights indicates that the scope of our rights is far thinner than many may think. This is why the Black Lives Matter leadership lost.
David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take.
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