Constitutional Concerns
Letter from a White House lawyer mentioning court cases - of concern. Arresting someone for trespassing on private property - not of concern.
Seems to me that some people need to remember what the Constitution applies to - the federal government (and in limited instances the state governments). What it does not apply to - private enterprises. Malls are private enterprises. As such, they cannot violate anyone's constitutional rights. Private enterprises are governed by the laws of the states and locales they do business in and any relevant federal laws. So if there is a New York law that prohibits arresting someone for wearing a t-shirt with a slogan, the guy has a case in state court (except that the mall is apparently dropping the charges). He has no case for claiming a violation of his constitutional rights, though.
Just to be clear.
Comments
Depends how we read the adjective "constitutional" and therefore the notion of "constitutional rights." Strictly speaking, the constitutional amendments of the "Bill of Rights" only lay down duties on congress and state governments not to enact laws that infringe on the right to assembly, free speech, etc., which is why you (correctly) understand the constitution as applicable only to federal and state laws. Constitutional rights are really defensive rights that protect the individual's rights from being infringed by the government.
But as these individual rights themselves are never actually defined in the Constitution, where do they actually come from? Answer: from common law. So the right to free speech should actually be called a common law right, but that doesn't sound quite as sexy.
In the case of kicking someone out of a shopping mall for wearing a t-shirt you don't like, you have, already, a clash of (common law) rights. Do the owners of malls have the right to kick out someone as a trespasser for wearing a t-shirt they don't like? Sure, if you understand the unconstrained ownership of private property to be the most important right, or at least the trumping right in this situation. But not everyone does. I, for example, would view freedom of speech to be one of the most important rights and as in many cases much more important than (what I view to be) the derivative right of private property ownership.
Between zoning laws and the notion of "quasi-public" spaces, the Supreme Court has many times had to ponder the question of whether the idea that the "individual is king in his or her castle" applies to shopping malls or forms of private property that look function awfully like public spaces (e.g. streets and sidewalks in company towns--the company owns the whole darn town, so can it suspend freedom of speech until the state enacts a bill specifically to contradict this?).
Anyway, just some thoughts...
Posted by: Eric | March 13, 2003 12:11 PM