5 - Non-Places

Summary

The Mall of America in Bloomington, Minnesota occupies 4.2 million square feet. The consumer mecca draws 37.5 million visitors a year. It houses, among many other things, the nation's largest amusement park, a public school, a branch of a private university, and a police substation operated by the city. Public financing substantially aided the construction of the Mall, whose operators proudly compare certain public areas to “city streets” and the “town square.” The Mall, they boast, is “a city within a city.” Yet when a small group of antifur protesters gathered near the Mall's entrance, holding placards and peacefully distributing leaflets expressing opposition to the cruel treatment of animals, they were arrested by Mall security officers and charged with trespass. The Minnesota Supreme Court ultimately upheld their convictions. In the Mall City, the people do not enjoy any expressive liberties.

Malls are not the only contemporary places at which the public assembles in substantial numbers but expressive activity is generally forbidden. As people began to move in great numbers to the suburbs and to travel about the country (and the world), the question arose whether their expressive liberties were as mobile. Did the First Amendment apply in places like airports, transportation hubs, subway platforms, and other contemporary places? Applying the public forum doctrine, courts have generally answered in the negative. Indeed, as the Supreme Court has interpreted this doctrine, “new” public places simply cannot be treated as “quintessential” public forums – regardless of their architectural features or actual uses.