In the 1990s, Bloomington successfully waded into the murky constitutional waters that swirl around questions of free speech in privately owned places that receive public funds. In the 1999 landmark ruling  State v. Wicklund, the Minnesota Supreme Court said the state constitution’s freedom of expression clause did not apply inside the walls of the Mall of America, despite public subsidies there.

Now the Bloomington City Council is poised to dive back into those same waters. On Sunday, Bloomington got authority from the state Legislature to impose new sales taxes that would help fund a planned Mall of America expansion. And Monday night the Council adopted new restrictions on public assemblies, in anticipation of Republican National Convention protests that could spill from St. Paul into Bloomington’s streets, hotels and the environs of the mall itself.

Minneapolis attorney Marshall Tanick tells Minnesota Monitor the convergence of new protest regulations and another round of public investment at the Mall of America may reopen issues that seemed settled after the State v. Wicklund opinion. Tanick has written frequently about the specialized field of mall law, most recently in Minnesota Lawyer, where he compared the Wicklund case to a December 2007 California Supreme Court ruling permitting public protests in malls. Along with residents of other states where courts rulings have diverged from Wicklund, Californians, he concluded, enjoy far broader free-speech rights in their shopping malls than Minnesotans.

Steven P. Aggergaard, another local attorney, delved deeply into the question of free speech in publicly funded, privately owned spaces in a 2006 law review article. He thought he saw light shining through the seeming wall the state Supreme Court erected with its Wicklund opinion. He agreed with the trial judge that the state constitution seems to offer protections for speech in places built using public funds – particularly speech directly tied to the political process, as demonstrations during the Republican convention likely would be.

“Nice try,” says Sandra Johnson, the associate city attorney in Bloomington, who prosecuted the case against the fur protesters in the 1990s and drafted the new public assembly ordinance for the city. She finds Aggergaard’s arguments “wishful thinking” and takes pride in the unanimous Wicklund ruling for which she argued. A self-professed free-speech geek whose job obliges her to approach the issue from the side of the regulators, Johnson said that beyond providing for public safety, the proposed ordinance is intended to eliminate opportunities for city staffers processing parade permits to impose arbitrary costs or free-speech limits on particular applicants.

Teresa Nelson worked on a friend-of-the-court brief supporting the protesters in the Wicklund case as a new lawyer with the Minnesota Civil Liberties Union. Now the staff attorney for the renamed American Civil Liberties Union – Minnesota, Nelson found fault with the new Bloomington ordinance as originally proposed and met with Johnson last week to suggest changes. The new version is “greatly improved,” she told Minnesota Monitor before the Bloomington City Council acted Monday, but still vulnerable to constitutional challenge on two points: requiring applicants to indemnify the city against harm, and giving the police chief the discretion to require applicants to obtain insurance for their planned events. Even if city officials have the best, most unbiased intentions, Nelson says, an insurance company could easily require certain groups to pay more for coverage. And some courts haven’t been sympathetic to the kinds of exemptions the ordinance offers for religious, educational and government applicants.

The Bloomington City Council voted 6-1 Monday to approve the revised permit requirements Johnson proposed, but not before making further changes, including several sparked by Council Member Amy Grady. Her vision of a simple, 52-mom, anti-war demonstration hit by high permit fees, insurance requirements and failing those, misdemeanor charges, seemed to turn council opinion. They removed the insurance (though not the indemnification) requirement, dropped the penalty to a petty misdemeanor, and made the protest permit fee $15 instead of $60.

Continued: Click “Read More”Background: The Wicklund case

The 10 or so fur protesters arrested for urging shoppers to boycott Macy’s inside the Mall of America just before noon on May 19, 1996, got more attention than they could have imagined. Hennepin County District Judge Jack Nordby rejected a motion from their attorney, Larry Leventhal, to dismiss trespass charges. But Nordby did so with a 62-page ruling asserting that the Minnesota Constitution protected their right to protest in a public place that had received significant public funding.

His unusual treatise on Minnesota’s higher standard of protection for free speech prompted an unusual pre-trial appeal from the prosecution and ultimately resulted in the unanimous ruling by the state Supreme Court that rejected Nordby’s argument and returned the case to his court. In his verdict at the trial shortly thereafter, Nordby lambasted the Supreme Court, and nine years later the high court’s slap still burns him. “It was a terrible, dishonest opinion that misrepresented my argument and the state constitution,” Nordby said Sunday in an interview. Leventhal, who defended the 1990s mall protesters pro bono, likewise told the Minnesota Monitor he found the Wicklund opinion “very disappointing” because it “circumvents the rights of free speech. Citizens should be able to share in the benefits if governments erect alternative Main Street areas” — such as the Mall of America.

Leventhal’s arguments lost in the state Supreme Court — resoundingly — and protesting without private permission inside the Mall of America remains illegal. But two stops up the Hiawatha Light Rail Transit Line from the mall, another privately owned public square has sprung up since the Wicklund case: a development called Bloomington Central Station. Government provided $3.5 million of the $4 million that went into the centerpiece of the 50-acre mixed-use development: a 1.9-acre, privately owned and operated plaza. Bloomington retained an easement to use the plaza as a public park. Indeed, the city’s Web site describes Bloomington Central Station Park, which opened last June, as “a public park featuring seating areas, garden rooms, water walls and fountains, paved and lighted walkways, and public art,” and Bloomington’s park and recreation department is sponsoring a public concert series there this summer. Earlier planning documents blurred the public and private to pitch the project promising a “central open plaza/park that democratically allows tenants to leverage this special asset” with “a ‘living street’ similar to a plaza or town square.” Both attorneys — Bloomington’s Nelson and ACLU-MN’s Johnson — found the prospect of applications for public assemblies there intriguing from a free-speech standpoint.

With all the legal and linguistic line-blurring it’s not surprising that, as urban expert Judith Martin observes, most Americans are confused about what is public space and what is not, and where their free-speech rights seem to apply. (Martin, who chairs the urban studies department at the University of Minnesota and long served as president of the Minneapolis City Planning Commission, testified as an expert witness in the Wicklund case.) The trend among governments and developers, Martin told the Minnesota Monitor, is “to reduce the possible spaces where that kind of perceived freedom is actual freedom.”