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Sunday, June 01, 2003  

Whose space is it anyhow?
Part II: Federalism, libertarianism and pragmatism

When we last discussed public spaces, privately or publicly owned, the conclusions reached were:

*Citizens have a right to express themselves in public forums which is protected by the First Amendment.

*Both public and privately owned entities with a public aspect, such as a public library or the Starbucks Corp., can limit freedom of expression on their premises without violating the First Amendment.

But, it is premature to use the word 'conclusion.' There is more to be said about privately owned public places, quasi-public places or third places, whichever you prefer to call them.

Angry Bear informs me he had something to say about public space issues back when Mac-a-ro-nies was just a mote in my eye. I mentioned the debate over the arrest of a mall patron for wearing a tee-shirt protesting the invasion of Iraq in March in Part I of this series. Bear corrected Glenn Reynolds, the InstaPundit, in regard to that episode.

Are Malls Public Places?

If so, then the Crossgates Mall was clearly in error. Instapundit Glenn Reynolds . . .says this:

A reader wonders if he's [the shirt-wearer] got a First Amendment lawsuit. The answer is no, because the mall is a private entity and doesn't have to observe the First Amendment (he may, however, have an action under New York law or New York's state constitution)

I am not a lawyer, but I vaguely recalled that issues like this have received considerable attention in the context of limitations on abortion protestors' free speech rights vs. the right of would-be patrons of abortion clinics to have unfettered access to the clinics, which are, naturally, on private property. So I did a little googling and found a different case entirely, and one that is more on point in the current context: a 1979 decision by the California Supreme Court called Robins v. Pruneyard Shopping Center[23 Cal.3d 899 (1979), aff''d, 447 US 74 (1980)]. There, inter alia, the court ruled that

"to protect free speech and petitioning is a goal that surely matches the protecting of health and safety, the environment, aesthetics, property values and other societal goals that have been held to justify reasonable restrictions on private property rights."

The California court specifically ruled that malls are "quasi-public" places (Pruneyard is, alas, the name of the shopping mall).

Pruneyard is a sibling of Lloyd v. Tanner. The California mall challenged the right of petitioners to distribute written material on its premises. SCOTUS held that the public could engage in that activity. Bear restates the reason for the apparent dichotomy in results.

The reasoning in Lloyd Corp. v. Tanner, 407 U.S. 551[1972] - which [447 U.S. 74, 75] held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center's operations - does not ... limit a State's authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision.

The high Court treated the cases as examples of federalism in action. The Oregon courts were allowed to exclude conduct in malls which the Court later held is protected under the California constitution. The Oregon Supreme Court upon reconsideration or the citizens of this state, through its referendum process, can change the law on public forums to make it broader -- or not.

Angry Bear has not yet expressed and opinion about the Starbucks controversy, but perhaps he will.

Venomous Kate of Electric Venom does have an opinion about Starbucks not allowing patrons to take photographs. She first cites my description of what happened when the public was allowed to do what it wanted at the main branch of the Seattle Public Library.

But, outside of our island of peace and order, the library had become a mess. A significant population of Seattle's homeless used it as a flop house, spending their entire day there. In some areas of the stacks, the smell alone was enough to keep anyone from seeking out a book. Library patrons increasingly stopped using the library, preferring to order books to be sent to their homes for a small fee, or picking them up at the desk after library workers had gathered them. Whatever it took to avoid being inside the library for long. The situation came to a head when a homeless man was discovered to have been molesting children behind bookshelves.

Kate sees a contradiction between the decision I reached in regard to that situation, that it was acceptable to exclude the homeless unless they were using the library as a library, and my belief that Starbucks is being irrational in excluding cameras.

"Through this example, Mac explains [her] support for the owners of a space to limit its use to the intended purposes. Except in the case of Starbucks."

She asks:

"Who gets to determine what the owner's business purpose is?

Why should the owner have to state its purpose and then demonstrate to John Q. Public how any given policy relates to it?"

She points out what she perceives as the purpose of Starbucks.

"After all, the place is intended to be used as a place of business in which the company sells coffee to people who want to buy it. The provision of tables and chairs doesn't change that basic fact and, arguably, they are there only to enhance the company's profit by encouraging repeat purchases. The nature of the establishment is one of commerce. Period. Not a lounge. Not a place for "taking meetings" outside the office. Not a substitute for a conference room. It's a place where the company exchanges a product for money, nothing more."

Kate reaches a basically libertarian conclusion: " both public and private owners - Starbuck's included - have the authority to determine the use of the space under their control."

I agree, with some caveats. First, of course, comes the reference to unlawful discrimination. There are bases on which neither public nor private entities can exclude people, including race, gender and national origin, in most cases. Bear discusses that topic more fully in the complete version of his entry. And, we also should remember that government owned public spaces belong to the public, justifying more say-so on the citizenry's part about how they are used. In addition, I would argue that a private owner of a quasi-public place should not arbitrarily decide what is included in its intended purpose.

Starbucks has decided to extend itself beyond a place to buy gourmet coffee, in my opinion. It purposely offers seating, including comfortable chairs and sofas in its larger stores. Bathrooms are available. Water is free. WiFi is sold by a Starbucks affiliate so that laptop and PDA users can convene at Starbucks and surf the Web simultaneously. Advertising encourages use of Starbucks as a communal environment. For these reasons, I believe personal picture taking should not be considered beyond the intended purposes of a Starbucks cafe. It is normal for people attending a coffee tasting, listing to a live music performance or just hanging out with friends to want to take pictures. Note that I am not saying there is a constitutionally protected right to take pictures at Starbucks. What I am saying is that Starbucks has unreasonably restricted its own interpretation of what its cafes are in this instance. To use Dustin's terminology, Starbucks is not acknowledging the degree to which it is a third place, though it is profiting from an image of doing so.

Kate extends her discussion of privately owned public spaces to blogging. She believes a blog owner has the same right to exclude participants as a business does. I find nothing to disagree with in that opinion, though I believe excluding people from a blog should be done sparingly in the interest of comity in the blogosphere. Read Kate's rationale at Electric Venom.

Another aspect of the topic turned up while I was thinking about the aspects we've already discussed. An appeals court has upheld the firing of an employee who insisted on affixing certain decals to his toolbox. He claimed a right to freely express his political opinions via the stickers in his privately owned workplace. The court was not sympathetic.

A three-judge panel of the 4th U.S. Circuit Court of Appeals agreed that Dixon has a constitutional right to display the flag, but said that right is not unlimited. For example, his employer could not fire him for attending a pro-flag rally at the state capitol on his own time.

"Dixon, however, chose to display the Confederate flag on the tool box he used at his workplace," Judge Roger Gregory wrote. "For Dixon to prevail, this court would be required to find that the First Amendment gives him the right to move the flag rally from the capitol to the Coburg Dairy garage. Such a finding would lead to the absurd result of making every private workplace a constitutionally protected forum for political discourse."

I believe adding this scenario to our analysis helps us decide what people get to do in privately owned public places based on the significance of their acts. The man in this case risked creating a hostile work environment for black employees by insisting on sporting Confederate symbols at work. The homeless people at the library made the facility difficult to use for its intended purposes by using it for other purposes. A Starbucks patron who takes a picture may violate corporate policy, but I can see no harm coming from the act. As I said in my previous entry,

I believe there will always be tensions between the public and the owners or operators of third spaces, both public and private. The way to decide who should prevail is to ask if the activity in question is somehow at odds with the purpose of the site.

One way to tell if the activity at issue is at odds with the purpose of the site is to ask if any harm to that purpose will result from it.

Note: I do quite a bit of my writing, including blogging, at various locations of Starbucks. The rough drafts of both 'Whose space is it anyhow?' entries were written at a neighborhood Starbucks location. The availability of WiFi through my T-Mobile account makes it possible to do anything Internet-related there I could do at home, with faster uploads. As a constant patron, I may be more familiar with what occurs in Starbucks than the average person.

2:50 PM