6 ms·

Do you have the right to stand in your community's biggest mall screaming racist things or does the property owner/operator have the right to remove you from th

Do you have the right to stand in your community's biggest mall screaming racist things or does the property owner/operator have the right to remove you from the premise?

Wowfunhappy 6y ago
To play devil's advocate, you can't do that in a public park either. You can be arrested for disturbing the peace or some such. So I'm not sure it's necessarily about private vs public.
- komali2 6y ago
  I'm not aware of it being illegal to stand on a soapbox and say racist things in a public park. If you're screaming at the top of your lungs, sure, maybe?
  - Wowfunhappy 6y ago
    Well, yeah, I suppose it depends how loud you're screaming. I was imagining someone shouting as loud as possible, which you'd definitely get stopped for in many places.
    - laughinghan 6y ago
      Aren't you just talking about the volume then? You could be screaming the most wholesome things about unicorns and rainbows and still be loud enough to be a public nuisance, and loud enough that authorities will have the right to ask you to pipe down. In America, no matter how big of a community mall, management can always remove you for good reasons (using racial slurs, even at normal volume), silly reasons (they didn't like the color of your hat), or no reason at all, as long as it's not for a prohibited reason (because of your race). Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance).
      - thephyber 6y ago
        > Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance). It depends if you are reported and what for. American authorities have prosecutorial discretion, so they can choose to overlook the "wholesome things shouter", but may choose to charge the "racist shouter" with a vaguely defined law like "disturbing the peace". There are enough laws like "disturbing the peace", "trespassing", and "obscenity" which are largely subjective.
- epicureanideal 6y ago
  And this is where the courts are also going to need to do some work to decide what exactly is "disturbing the peace". What if someone says that wearing a red hat is "disturbing the peace"? What if someone says wearing an "I'm with her" shirt is disturbing the peace? Who decides when simply displaying a political view is disturbing the peace? The left can attempt to immediately equate everything to the right of Obama with Hitler. The right can attempt to immediately equate everything to the left of Reagan with Stalin and Mao. Who is going to sort this out? Both sides might think they're being perfectly reasonable about their characterization of the other side. And if a judge on one side agrees with them, the alternative viewpoint becomes criminal hate speech. This is very dangerous.
- snowwrestler 6y ago
  You actually can do this in on public property; see for example the Westboro Baptist Church, which funded itself in part by winning lawsuits against government entities that tried to stop them.
- thephyber 6y ago
  But the rules for many public spaces and all private spaces are fundamentally different because they get to define who can use the property and in what capacity, or face trespassing charges. I don't see banning a user from social media sites very different from exercising trespassing laws. Should Republicans be sheltered from trespass laws just because the owner of the property might not be a Republican? Perhaps the best way for social media websites to avoid being is to more clearly define what content violates their ToS. I suspect most people don't read the ToS and certainly don't know how every company chooses to enforce their ToS with enough detail, and that's almost certainly the confusion when social media users complain about persecution.
takeda 6y ago
If you were a president visiting that mall, you would be allowed to do a lot of things that ordinary people would be kicked for.
- rbanffy 6y ago
  And we need to consider this. By Twitter's ToS, he should have lost his account a long time ago.
- snowwrestler 6y ago
  Sure but the mall would certainly be within its rights to put up a sign saying "the president might not be telling the truth today."
  - takeda 6y ago
    But it didn't. Same was with Twitter. Trump constantly was breaking their TOS a lot of people lost their access for much much less.
- evan_ 6y ago
  The President can only play in the mall fountain or whatever if the mall management says he can. If they want to boot him they can. The president is not a king.
  - takeda 6y ago
    You know well that it's not how it works in real life. Everyone would be afraid of repercussions to their business, kind of like the article we are currently discussing.
    - evan_ 6y ago
      it's not how it works if you don't want to get harassed and attacked on twitter (and not on twitter), but you won't actually go to jail over it.
epicureanideal 6y ago
The Pruneyard decision [1] though did conclude that the sidewalks (even privately owned walkways) outside a business were quasi-public spaces analogous to public squares. [1] https://www.law.cornell.edu/supremecourt/text/447/74 https://www.law.cornell.edu/supremecourt/text/447/74 About your specific question, I would say "standing INSIDE the mall screaming" (screaming anything) would be more similar to posting large amounts of text on someone else's personal Twitter feed. Whereas simply having your own personal Twitter and saying things that someone doesn't like would be more like standing on the walkway outside a business. Also, I read the draft of Trump's order posted on HN last night, and it doesn't say that lewd or obscene content can't be removed. If you start using the N word or posting pornography, I think that's still legitimate for companies to remove. The problem is that the idea of "hate speech" is being weaponized. If someone simply wears a MAGA hat, that's being called "threatening" or "racist". If someone expresses economically protectionist views, they're called "racist" even though protectionism was used centuries ago to protect European countries from other European countries and has nothing to do with "race". The right could similarly weaponize the idea of "hate speech" by saying that any time anyone mentions any kind of social program spending, that's "threatening" because that's akin to "communism, which has killed hundreds of millions of people". Now, plenty of conservatives do say they're concerned about the slippery slope, but they don't immediately equate "we should give housing to the homeless" with "put the rich in the gulags", the way the vocal far left equates "maybe we should reduce taxes a bit" with "they're racists who want poor minority people to starve to death".
- pnw_hazor 6y ago
  https://www.law.cornell.edu/constitution-conan/amendment-1/quasi-public-places https://www.law.cornell.edu/constitution-conan/amendment-1/q... edit: deleted - the link did not support my claim.
  - gamblor956 6y ago
    Note that under Pruneyard and Lloyd the limited purpose invitation standard and focus does not apply to private spaces. Thus it matters whether the land is private or public, not the purpose for which the public is invited to enter. The "limited purpose" test examines public or quasi public facilities (i.e., joint public-private parnerships), like airports, to determine whether they would be considered public forums for free speech purposes. (See Hari Krishna vs Lee) Additionally, public sidewalks in front of stores are considered public areas because of the public easement to use the sidewalk. A private sidewalk is not a public area for free speech purposes (see Lloyd). [edit: fixed Logan to Lloyd]
pnw_hazor 6y ago
If Twitter wants to become a publisher they can edit or curate their content to their heart's content. Web publishers do not need any special protection from well established jurisprudence governing other publishers. It made some sense in the early days when it was unclear how things would turn out, now those protections should be rolled backed or adjusted.
basementcat 6y ago
Some malls have "free speech areas" (possibly mandated by local ordinance) and occasionally some groups and individuals do exactly that.
gamblor956 6y ago
Pruneyard v. Robins says the private owner of the mall can kick you out. But note that state laws may provide state-level free speech rights separately from the First Amendment (and several states have such laws). In contrast, a public space like a public park is subject to free speech requirements, which is why the Westboro church can scream vile racist things from a playground.

Do you have the right to stand in your community's biggest mall screaming racist things or does the property owner/operator have the right to remove you from the premise?

Wowfunhappy 6y ago

To play devil's advocate, you can't do that in a public park either. You can be arrested for disturbing the peace or some such. So I'm not sure it's necessarily about private vs public.

komali2 6y ago
I'm not aware of it being illegal to stand on a soapbox and say racist things in a public park. If you're screaming at the top of your lungs, sure, maybe?
- Wowfunhappy 6y ago
  Well, yeah, I suppose it depends how loud you're screaming. I was imagining someone shouting as loud as possible, which you'd definitely get stopped for in many places.
  - laughinghan 6y ago
    Aren't you just talking about the volume then? You could be screaming the most wholesome things about unicorns and rainbows and still be loud enough to be a public nuisance, and loud enough that authorities will have the right to ask you to pipe down. In America, no matter how big of a community mall, management can always remove you for good reasons (using racial slurs, even at normal volume), silly reasons (they didn't like the color of your hat), or no reason at all, as long as it's not for a prohibited reason (because of your race). Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance).
    - thephyber 6y ago
      > Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance). It depends if you are reported and what for. American authorities have prosecutorial discretion, so they can choose to overlook the "wholesome things shouter", but may choose to charge the "racist shouter" with a vaguely defined law like "disturbing the peace". There are enough laws like "disturbing the peace", "trespassing", and "obscenity" which are largely subjective.
epicureanideal 6y ago
And this is where the courts are also going to need to do some work to decide what exactly is "disturbing the peace". What if someone says that wearing a red hat is "disturbing the peace"? What if someone says wearing an "I'm with her" shirt is disturbing the peace? Who decides when simply displaying a political view is disturbing the peace? The left can attempt to immediately equate everything to the right of Obama with Hitler. The right can attempt to immediately equate everything to the left of Reagan with Stalin and Mao. Who is going to sort this out? Both sides might think they're being perfectly reasonable about their characterization of the other side. And if a judge on one side agrees with them, the alternative viewpoint becomes criminal hate speech. This is very dangerous.
snowwrestler 6y ago
You actually can do this in on public property; see for example the Westboro Baptist Church, which funded itself in part by winning lawsuits against government entities that tried to stop them.
thephyber 6y ago
But the rules for many public spaces and all private spaces are fundamentally different because they get to define who can use the property and in what capacity, or face trespassing charges. I don't see banning a user from social media sites very different from exercising trespassing laws. Should Republicans be sheltered from trespass laws just because the owner of the property might not be a Republican? Perhaps the best way for social media websites to avoid being is to more clearly define what content violates their ToS. I suspect most people don't read the ToS and certainly don't know how every company chooses to enforce their ToS with enough detail, and that's almost certainly the confusion when social media users complain about persecution.

takeda 6y ago

If you were a president visiting that mall, you would be allowed to do a lot of things that ordinary people would be kicked for.

rbanffy 6y ago
And we need to consider this. By Twitter's ToS, he should have lost his account a long time ago.
snowwrestler 6y ago
Sure but the mall would certainly be within its rights to put up a sign saying "the president might not be telling the truth today."
- takeda 6y ago
  But it didn't. Same was with Twitter. Trump constantly was breaking their TOS a lot of people lost their access for much much less.
evan_ 6y ago
The President can only play in the mall fountain or whatever if the mall management says he can. If they want to boot him they can. The president is not a king.
- takeda 6y ago
  You know well that it's not how it works in real life. Everyone would be afraid of repercussions to their business, kind of like the article we are currently discussing.
  - evan_ 6y ago
    it's not how it works if you don't want to get harassed and attacked on twitter (and not on twitter), but you won't actually go to jail over it.

epicureanideal 6y ago

The Pruneyard decision [1] though did conclude that the sidewalks (even privately owned walkways) outside a business were quasi-public spaces analogous to public squares. [1] https://www.law.cornell.edu/supremecourt/text/447/74 https://www.law.cornell.edu/supremecourt/text/447/74 About your specific question, I would say "standing INSIDE the mall screaming" (screaming anything) would be more similar to posting large amounts of text on someone else's personal Twitter feed. Whereas simply having your own personal Twitter and saying things that someone doesn't like would be more like standing on the walkway outside a business. Also, I read the draft of Trump's order posted on HN last night, and it doesn't say that lewd or obscene content can't be removed. If you start using the N word or posting pornography, I think that's still legitimate for companies to remove. The problem is that the idea of "hate speech" is being weaponized. If someone simply wears a MAGA hat, that's being called "threatening" or "racist". If someone expresses economically protectionist views, they're called "racist" even though protectionism was used centuries ago to protect European countries from other European countries and has nothing to do with "race". The right could similarly weaponize the idea of "hate speech" by saying that any time anyone mentions any kind of social program spending, that's "threatening" because that's akin to "communism, which has killed hundreds of millions of people". Now, plenty of conservatives do say they're concerned about the slippery slope, but they don't immediately equate "we should give housing to the homeless" with "put the rich in the gulags", the way the vocal far left equates "maybe we should reduce taxes a bit" with "they're racists who want poor minority people to starve to death".

pnw_hazor 6y ago
https://www.law.cornell.edu/constitution-conan/amendment-1/quasi-public-places https://www.law.cornell.edu/constitution-conan/amendment-1/q... edit: deleted - the link did not support my claim.
- gamblor956 6y ago
  Note that under Pruneyard and Lloyd the limited purpose invitation standard and focus does not apply to private spaces. Thus it matters whether the land is private or public, not the purpose for which the public is invited to enter. The "limited purpose" test examines public or quasi public facilities (i.e., joint public-private parnerships), like airports, to determine whether they would be considered public forums for free speech purposes. (See Hari Krishna vs Lee) Additionally, public sidewalks in front of stores are considered public areas because of the public easement to use the sidewalk. A private sidewalk is not a public area for free speech purposes (see Lloyd). [edit: fixed Logan to Lloyd]

pnw_hazor 6y ago

If Twitter wants to become a publisher they can edit or curate their content to their heart's content. Web publishers do not need any special protection from well established jurisprudence governing other publishers. It made some sense in the early days when it was unclear how things would turn out, now those protections should be rolled backed or adjusted.

basementcat 6y ago

Some malls have "free speech areas" (possibly mandated by local ordinance) and occasionally some groups and individuals do exactly that.

gamblor956 6y ago

Pruneyard v. Robins says the private owner of the mall can kick you out. But note that state laws may provide state-level free speech rights separately from the First Amendment (and several states have such laws). In contrast, a public space like a public park is subject to free speech requirements, which is why the Westboro church can scream vile racist things from a playground.