No Mall For Old Men
Zirkel (left) is an 80-year old deacon at a Roman Catholic Church is Wyandanch who’s had a distinguished career in public service including a stint in the Army. He was there to protest the war, exercising his Constitutionally granted right to free speech by handing out pamphlets and wearing that t-shirt, which Mall management found offensive.
The full story can be found here from Newsday.com.
But a more careful reading of the article reveals that this is not so much a cut-and-dried denial of free speech, but a more sinister denial of Zirkel’s civil rights.
According to the article, the actual protest against the Iraq War took place outside the mall. When Zirkel was confronted by mall security and later arrested by the Suffolk County police, he was inside the mall enjoying french fries and coffee with his wife. He was still wearing his Iraq-War-protest t-shirt, but causing no trouble. Yet, he was forcibly removed from the mall and arrested because he refused….REFUSED…to turn his shirt inside-out. C’mon, look at this guy. Does he look like anyone who would cause a ruckus, let alone present a danger to mall patrons?
Welcome to America 2008. Deal with it. I never thought I’d see a day when a private entity has the right to declare an object of clothing offensive because someone happens to be wearing it on their property. What’s next? A return to days of segregation when black folks could only drink from certain water fountains or use a separate entrance to access an establishment? Okay, so you think that’s extreme? What if the mall owners one day decide that wearing a yarmulke or a “Kiss me, I’m Irish” t-shirt is offensive ? While it would be my dying wish to see them ban people who come in wearing pajama bottoms and flip-flops, could this be considered a case of unfair discrimination against war protesters? I wonder. I know these are hyperbolic examples, but given that malls now have the right to remove people from their private property that they deem “offiensive”, what’s to stop them from targeting other classes of individuals?
The case most often cited by the mall owners goes back to 1985, when, ironically, the New York State Court of appeals ruled in Shad Alliance v. Smith Haven Mall, 66 NY2d 496 that “no free speech right that would entitle citizens to hand out leaflets in a private shopping center.” Writing for the Court, Judge Vito J. Titone stated:
“Smith Haven Mall is not the functional equivalent of a government and its conduct is not the equivalent of governmental conduct.”
To be sure, the shopping mall has taken on many of the attributes and functions of a public forum … but the characterization or the use of property is immaterial to the issue of whether state action has been shown.
What this ruling tells me is that, if that a mall’s management does not like you, for any reason, they can throw you out on your ass, or worse, have the police arrest you for trespassing. Never mind that these structures are designed as open public spaces. Mall owners and operators in the State of New York have had a 23-year old ruling that, in effect, states “just call them protesters.” It says that as a private property owner, you can pick and choose which constitutionally protected civil liberties you want to honor.
Still, the fact remains that Zirkel posed no threat to anyone. Clearly, up until his arrest, he had no beef with the Smith Haven Mall. He was patronizing one of their establishments. He was spending money!
But that didn’t matter to the crack Smith Haven Mall security force. They’re probably under orders to not let anyone interfere with the pleasant shopping atmosphere they work so hard to achieve. The last thing a big ticket shop-a-holic needs to see is some old geezer in an ill-fitting, blood stained t-shirt protesting the war. I could just hear the mall manager blurt, “It’s bad enough we have to let them get their exercise in the place, now they want to protest the war? Get the fuck outta here!”
And that’s where it’s at people.
“Sorry, Mr. Zirkel, this is no mall for old men! We don’t serve your kind here.”