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Why the Black Lives Matter leadership lost in court

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.

schultz portrait
David Schultz

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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Comments (37)

  1. Submitted by Brad James on 12/23/2015 - 09:19 am.

    What a joke

    The ruling says that three people are not allowed to protest, a small percentage of the total that will protest. I would say that BLM won. MOA had a whole list of demands that the judge dismissed. The white establishment in Minnesota has been eager to tell the lie that BLM lost in court.

    • Submitted by Jim Million on 12/23/2015 - 12:50 pm.

      Really?

      “The white establishment…”?

      Seems to be a matter of private entity vs. public entity, deeds and ownership.

      Not every action is race-based. Not every race-based allegation is valid.

  2. Submitted by Ben Ashley-Wurtmann on 12/23/2015 - 09:43 am.

    “Wicklund was wrongly decided, but it is the law of the Minnesota. ”

    And, few other ways to change it than to force the issue, and put the case before a MNSC with a different makeup.

  3. Submitted by Jim Million on 12/23/2015 - 10:02 am.

    Lesson Learned, or Not

    Thanks for clarifying what once was a standard high school civics lesson. Mobs have limited protection because, well, they are mobs. We cannot incite riots or panics in our society without legal recourse…a premise of law. Like many other simple principles, obedience to civil precepts long ago devolved into a mild modern oxymoron: civil disobedience.

    Other readers who better know our founding history based on carefully considered rights and freedoms will elaborate on this seminal concept of American law. Those authors knew much about aberrant anti-social behavior that impeded their progress toward establishing a society of fundamental rights, protections and freedom.

    Anyone with an elementary knowledge of accepted public behavior should have known (and reported) the simple fact that MOM is private property; hence, protected against incursion by any mob of the moment.

    Furthermore, I am private property, as are you, you and you. No, you cannot be “in my face invading my space.” Yes, I own myself. I should think that those who mount these street theater productions
    might understand they cannot own me or my space, as I can not own them or their beliefs. Isn’t that the historical foundation of so many of these protests, marches, and other uncivil tactics: ownership?

  4. Submitted by Sean Olsen on 12/23/2015 - 10:13 am.

    Hmmm

    Seems to me that BLM actually fared pretty well in court yesterday. Limiting the restraining order to just three organizers wasn’t much of a victory for the mall.

  5. Submitted by Raj Maddali on 12/23/2015 - 10:26 am.

    Train Station

    There is a PUBLIC train station at the MOA. It was built AFTER Wicklund with Federal dollars.

    Can the MOA ban a “protestor” if he/she states they are “going” to the train station. I think not. Wicklund cannot apply to a federal facility that is contained in that mall.

    The Wicklund ruling is a joke. State funds were used to subsidize a public accommodation (not a factory).

    Theoretically under this ruling a city can farm out its soccer to a private league and shut out parents.

  6. Submitted by David Wintheiser on 12/23/2015 - 11:14 am.

    Technically correct, yet…

    Prof. Schultz is technically correct when he states that there is no explicit right of free expression in a private place. Yet the Mall of America is not truly private — unlike a home, where those who enter can either be presumed to live there or to be invited, and those who don’t fall under those categories can be asked to leave, the Mall invites the public to enter and shop. It would be difficult indeed to imagine that the Mall doesn’t exist to promote commerce between the public and its hosted vendors.

    Because of this, the Mall is considered legally a “public accommodation” — a place that is open to the public for a specific purpose, typically commercial. Restaurants and hotels, both of which operate at the Mall, also qualify as public accommodations. And it is true that there is a constitutional right that the public can claim within a public accomodation — the right to equal protection under the laws as well as to not be deprived of life, liberty, or property without due process of law enshrined in the 14th Amendment and specifically enacted in the Civil Rights Act of 1964. Because of this, the Mall cannot ask members of the public to leave simply because they are black, or because the Mall simply does not wish them there while allowing others to remain — this would be denying these people equal protection of the law.

    It should also be noted that the First Amendment does apply, to some degree, to public accomodations, due to the recent adoption of various ‘religious freedom’ laws — these laws derive their authority from the First Amendment’s prohibition of ‘impeding of religious freedom’. Given events like the protests at the Fourth District in Minneapolis and on the campus of the University of Missouri, it seems likely that other First Amendment rights are likely to be soon recognized by courts as applicable within the realm of public accommodations.

    Lastly, the Minnesota criminal statute regarding trespass defines it, in part, as a violator who “trespasses on the premises of another and, without claim of right, refuses to depart from the premises on demand of the lawful possessor”. Note the ‘without claim of right’ clause there — should some people have a defined right (such as the 14th Amendment right of equal protection) that would allow them to remain where they are, they would not be committing trespass under Minnesota law.

    The Black Lives Matter demonstrations trace their inspiration back to the lunch counter sit-ins of the 1960s that helped end discrimination in public accommodations; it would not be at all surprising if these demonstrations likewise fostered new applications of Constitutional rights for our own era.

    • Submitted by Tim Milner on 12/23/2015 - 01:39 pm.

      My take

      David, is that you are correct in your statement

      “the Mall is considered legally a “public accommodation” — a place that is open to the public for a specific purpose, typically commercial”

      But a very key point is the “purpose” – to conduct commerce. And in that purpose, the MOA can’t arbitrary choose to deny access to anyone – race, creed, religious affilliation, etc. All must, by definition, be allowed in to participate in the opportunity to conduct commerce.

      But what about those activities that do not meet that “public accommodation” purpose? I don’t believe anyone talked about the MOA being a place for public demonstrations when the MOA was built. So as I see it, when any group wants to use the MOA for activities outside of its “public accommodation” (to conduct commerce), the MOA, as a private business, should have (and in my opinion does have) broad discretion in what it allows and does not allow.

      Any activity that support it’s “public accommodation” (like middle school concerts which draw more potential shoppers to its vendor clients) are likely to be approved and welcome. But I believe the MOA has the right to deny access to groups who specifically state their goal is to disrupt the normal daily commerce, such as the BLM planned demonstration.

      In fact, I would go so far as suggest that if I was a shopper at the MOA, and was prohibited from exercising my desire to conduct commerce at the MOA because of the BLM demonstrations, that maybe my equal protection civil rights are being violated.

      Just my two cents.

  7. Submitted by John Adams on 12/23/2015 - 11:56 am.

    Free speech–when, and where.

    My college adviser told us that “It’s not what people know that causes trouble … it’s what they know that ain’t so.”

  8. Submitted by Andrea Morisette Grazzini on 12/23/2015 - 12:13 pm.

    What of Fiscal Disparity Funds & Civil Rights Act

    This outlines what I think Black Lives Matter already knew. My understanding is the judge didn’t and couldn’t stipulate an injunction against BLM, since it is not an organization. It is a fluid and dynamic mix of citizens. What she did agree to was to stipulate three of eight visible organizers.

    The much larger group, from what I can tell, sees this as the modern day version of the lunch counter sit-ins during the 60s. They’ve organized nonviolent civil disobedience training for situations such as these.

    Speaking of which, the MOA is obliged to obey the Civil Rights Act of 1964: 42 U.S. Code § 2000a Prohibition against discrimination or segregation in places of public accommodation (a) Equal access: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin.

    One could argue BLM can’t have an organized ‘event’ (demonstration, etc) there. But, there is some slippery slopes in this area for MOA, it seems. As they do allow community groups to assemble there regularly — albeit most and maybe all allowed have been in their target demographic. (Recent ones have been Epilepsy and Eating Disorders ‘walk-a-thons.’) If there seems to be favoritism towards such groups, perhaps this could post a wrinkle.

    Finally — and perhaps most critically. It is troubling that the Mall was given a quarter of a billion dollars from the regional Fiscal Disparities fund, which is reserved to balance tax benefits between wealthy and poorer communities. This alone should have many of calling for either a repeal Wicklund and/or for the Mall to act more, well, American — perhaps even doing a bit of PR riffing for the occasional protest that alludes to their name and tolerance, at least, to citizen-led (read: consumer) democracy.

  9. Submitted by Jim Million on 12/23/2015 - 12:42 pm.

    Please elaborate:

    “Wicklund was wrongly decided….”

    How so? Was it a technicality, or was it the Court’s interpretation of “Private”? Isn’t this a matter of deed law? Should your assertion be parenthetical?

    Thanks. Your writing is definitely a MinnPost asset.

  10. Submitted by Dennis Tester on 12/23/2015 - 01:39 pm.

    BLM may have won the battle

    but they and their leftist friends are losing the war of public opinion. I welcome their foolishness.

    • Submitted by Russ Hilbert on 12/23/2015 - 02:04 pm.

      as do I

      and their arrest for trespass as well.

    • Submitted by Steve Titterud on 12/23/2015 - 10:49 pm.

      I think BLM did Rep. Ellison & Mayor Hodges a big…

      …favor when they rejected their offer of support and characterized them & local community leaders in so negative a way.

  11. Submitted by Bob Petersen on 12/23/2015 - 01:45 pm.

    Public Dollars Does Not Mean…

    ..that the MOA is a public place. I am not sure why so many people put the two together. Just because someone receives public money does not mean whatever use they have it for belongs to everyone. Streets, public squares, etc. belong to the government. The government cannot infringe on one’s Rights.
    Private persons can. You can’t go into my car and do things to it or me just because you think you have Rights. You can’t go onto my land and do things if I don’t like it – it doesn’t matter the reason. The MOA holds events that it deems safe for those that hold the events as well as those that work there and those that shop there. They have every right to tell anyone that their activities are not invited. The last time shops closed doors and workers and shoppers were frightened. The MOA rightly can use this information to ensure it doesn’t happen again because the BLM movement doesn’t care what anyone thinks. They’ve proven their actions are in disregard to any sense of normalcy.
    The MOA is there for people to shop. Stores need to make a profit to stay open and shoppers are needed the environment to be in a safe place to go about their business. Anyone or anything that interferes with that, the MOA has every right to stop it. But time and again, BLM refuses to listen to anyone. Let’s not forget many of the slogans BLM uses to advance their cause have been proven to not have happened.
    If BLM actually changes in how they do things, I’m sure things would be much different.

    • Submitted by Raj Maddali on 12/23/2015 - 10:15 pm.

      Does that mean

      The mayor of my town can enter into an agreement with a private Soccer club. and that club can pick and choose who it allows to play on city fields. I don’t think so.

      That mall was built as a public accommodation. Which is why there is a train station in there. Can they prevent anyone to enter that train station ?

      As to the rest of your comment. We have two sets of opinions in this country and each talk past each other. That doesn’t make yours or mine (if we are the two sides) any more valid. That’s just how it is .

  12. Submitted by Jerilyn Jackson on 12/23/2015 - 08:37 pm.

    It’s easy to forget

    The Reverend Martin Luther King, Jr. and his fellow protesters were losing in the court of public opinion at the time of the civil rights struggle. Large majorities disapproved of their inconvenient and audacious demonstrations. And yes there were arrests.

  13. Submitted by Paul Udstrand on 12/24/2015 - 10:46 am.

    Two things

    First, I continue to be amazed by the difficulty some people accepting the “legal” fact that MOA is private property, and waste sooooo much energy trying argue about it.

    Second, even IF someone were to establish MOA as something other than private property, how would that stop disparate excessive and lethal police violence against people of color? Sometimes it looks like someone who want’s nothing more than to obscure any coherent message or agenda has taken over the BLM movement.

    Is anyone anywhere actually having a coherent discussion about changing police procedures so the frequency of brutal and fatal encounters are decreased?

    • Submitted by Raj Maddali on 12/24/2015 - 03:20 pm.

      Simple Question

      Can the MOA prevent me from the train station INSIDE THE MOA ?

      • Submitted by Paul Udstrand on 12/25/2015 - 09:51 am.

        Maybe

        I know a few years ago when some Wobbly’s (Worker of the World labor union) were going to picket at an MOA Starbucks as part of a organizing campaign Bloomington cops in riot gear stopped them at the station and wouldn’t even let them get off the train.

        • Submitted by Raj Maddali on 12/25/2015 - 11:00 am.

          Maybe Not

          Police can order anyone off even the steps of the legislature if they deem a safety hazard. You haven’t answered the question “Can the MOA prevent me from using the train station” ?

          • Submitted by Paul Udstrand on 12/25/2015 - 11:17 am.

            FAQ?

            Maybe there’s a FAQ somewhere that will answer your question Raj.

          • Submitted by Paul Udstrand on 12/25/2015 - 11:59 am.

            Raj

            I reached out to a friend of mine who used to work security at MOA, here’s what he said:

            “Transit station is open so long as the trains are running. That area is separate. You cannot park overnight at the mall so you will have to park at one of the spots close to the mall. Mall it self open and closes like other malls. Last I was there mall doors opened 7am for walkers.”

            So when the Mall is closed, you cannot access the transit station through it, so no, the mall can’t block your access to the station since you don’t need the mall to get to the station.

            • Submitted by Raj Maddali on 12/25/2015 - 08:13 pm.

              In other words

              The cop told you that they cannot block access to the MOA train station. And until the MOA clearly designates the access and egress to the station as a separate path (which i’m curious why they won’t do till today) they can’t prevent me. So there goes their private property shtick.

              • Submitted by Paul Udstrand on 12/25/2015 - 09:19 pm.

                Sorry Raj

                Reading comprehension fail on your part. First, I did not talk to a “cop”. Second, since passage through the mall is not required to access the station (the station is a separate entity), the mall cannot be “required” to provide access, hence the mall closes at 10:00pm whether trains are still running or not, i.e. the mall is NOT required to stay open as long as the trains are running in order to provide access to the station. Furthermore, the mall can lock down any part of the mall or the entire mall if it sees fit, (as it did the other day, and once or twice during big snow storms) regardless of access to the station.

                You’re attempt to modify the mall’s status as private property by linking it to the LR station simply doesn’t pan out.

  14. Submitted by Wesley Volkenant on 12/24/2015 - 10:22 pm.

    What if BLM Had Asked MOA to Conduct a ‘Fundraiser’?

    One of the complaints about the Protest was that passage through the MOA was disrupted by the presence of the protesters in the Rotunda area.

    Yet, the MOA frequently disrupts mall traffic to hold fundraisers or to put on concerts and other entertainment functions.

    A less-discussed issue is whether the protesters constitute what MOA management considers ‘acceptable people’ as primarily persons of color. Others might look at hordes of teenagers gathered for the latest hot band or singer and question their loud and maniacal behavior as gushing fans, and question their ‘acceptable’ presence.

    So, what if BLM had requested to use the MOA space to conduct a very visible ‘fundraiser’ on behalf of the family of Jamar Clark, and had met all the required timelines, rules, etc. to conduct such a thing?

    And what if the Mall had rejected their request? Would BLM still be getting the bad PR, or would it be private-property owner MOA? Would a rejection lead to a more worthy lawsuit for discrimination against the community of color and BLM in such a case?

    And what if the MOA granted such a request – how would that ‘fundraiser’ look under such circumstances, especially on December 23rd?

    • Submitted by Paul Udstrand on 12/25/2015 - 10:12 am.

      What if?

      Anyone who wants to have an event on MOA property makes an application and management either grants permission or doesn’t. MOA is not required to grant permission for all applications, it’s private property and no one has a “right” to have an event there just because they filled out an application.

      You can complain about discrimination if you want, but private property owners actually have a right to discriminate. I would guess the mall would deny the application by claiming that a Jamar fundraiser doesn’t “fit” with the MOA brand in some way because of the political connotations, and that would be perfectly legal.

      Furthermore, any event MOA allows is subject to agreement, that means you have your event when and where they allow it, not when you demand it. If they don’t want your event on the 23rd of December, you don’t get to have your event on the 23rd of December.

      The problem with trying to turn this into some kind of big socio-political statement is nobody cares and very few people actually want to see political demonstrations inside their shopping malls. What’s the point here? Is this about BLM having events at MOA or is it about police discrimination and unnecessarily fatal encounters between police and people of color? What’s big complaint? That black people can’t get into the mall with their demonstration or that black people are being killed by police officers?

      • Submitted by Raj Maddali on 12/25/2015 - 11:15 am.

        And if ?

        ” private property owners actually have a right to discriminate.” – You are correct. I totally understand Wicklund, but IMO the MOA by its actions has moved beyond what is permitted by Wicklund.

        The Wicklund Judgement states.
        “The MOA leases space for a post office and alternative school, but there is no evidence of any entanglement between any governmental function and MOA management in connection with these tenants.”

        Now after Wicklund:

        There is a full train station. Are you telling me that there is “no entanglement between any governmental function and MOA management ”

        The ACLU’s position.

        “The ACLU-MN argues that a previous Minnesota Supreme Court decision, Wicklund, should be overturned because the Mall of American is in fact a public forum, and that Wicklund does not apply to this particular event because of the inappropriate coordination between the Mall of America and local, state, and federal authorities.

        My Opinion:

        The TIF agreement should be challenged under Federal Civil Rights Statutes, cause the MOA and the CIty of Bloomington have created a “members only” Public Square with public money that violates the equal rights of minorities to access that space in an equitable fashion.

        There is a reason the MOA and Bloomington won’t pursue a legal fight to the fullest extent. Cause they may loose.

        What happened to all of those charges the last time around. They got thrown out ? Why did not the City of Bloomington appeal ?

        • Submitted by Paul Udstrand on 12/25/2015 - 05:02 pm.

          Basic trespassing law

          Not all of the charges got tossed, I think there are still 10-15 pending. The reason most of the charges were tossed last time is because the Mall actually screwed up and asked demonstrators to “disperse” rather than leave. Trespass law isn’t invoked until and unless you ask someone to leave the premises and they refuse. This time the mall was very clear that it is was telling demonstrators to leave the mall and they would be escorted out. More than likely those remaining under charge were personally told to leave by cops or security and refused, hence bring trespass law into play.

          I don’t think anyone is worried about Wicklund being overturned, if the ACLU is so sure about it they can file an appeal on BLM’s behalf. In the meantime this is the law and if you think you’re going to challenge it and get out of a trespassing charge you’ll likely be quite disappointed. ACLU lawyers can have whatever opinion they want, but they don’t make law or change MN Supreme Court decisions.

          • Submitted by Raj Maddali on 12/25/2015 - 08:10 pm.

            Mall of America under Wicklund

            Wicklund will not be overturned. However if you read the ACLU statement, it is MOA operating under Wicklund that will prolly be challenged at some time in the future. Its a long way from hiding behind Wicklund and building FEDERALLY funded train stations in the mall and claiming Wicklund.

            The presence of a train station with Federal funding now makes it a federal issue.

            Either way, the way the rules of the game are set up it will be an annual nuisance for the MOA, because until the protestors show up, the MOA shuts down the mall and asks everyone to leave, the protestors are not in violation of anything. That in itself is a completely legal protest wihout violating any laws !!!

            • Submitted by Paul Udstrand on 12/25/2015 - 09:26 pm.

              Wicklund…

              Wicklund v. Mall of America specifically applies to the MOA, and must in fact be overturned or legislated around in order to convert the mall into public property. We’ll see what happens if or when someone challenges it.

  15. Submitted by Raj Maddali on 12/26/2015 - 11:50 am.

    Wicklund

    Really Paul. A specific case law does not have to be overturned for a legal determination that the MOA has moved beyond Wicklund. That’s basic legal fact.

    A legal determination that the MOA does not fit under Wicklund doesn’t mean that Wicklund does not apply to other cases. That’s basic law. Just so you know. Case laws are not for a single corporation or entity.

    • Submitted by Jim Million on 12/27/2015 - 11:49 am.

      Really?

      Most of us are under the impression case law is, indeed, specific case determination. Isn’t it then later used as reference and perhaps precedent in other actions? Not to be confused with class actions, of course.

      • Submitted by Paul Udstrand on 12/28/2015 - 11:14 am.

        Exactly

        And the central legal “fact” here is that the MOA is private property, and that’s settled law whether you like it or agree with it or not. We’re not entitled to recognize only those laws/rulings that we agree with. You can ignore laws you don’t agree with but if get arrested you go to the same jails and court rooms as everyone else.

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