Fascism At The Shopping Mall....

[Lord Jim]

(also posted at the CSB)

Immigration T-Shirt Spat at Maryland Mall

Mall management calls pro-Arizona shirts offensive

By P.J. ORVETTI
Updated 11:26 AM EDT, Mon, Sep 20, 2010



Maryland is in the midst of a debate over whether to follow Arizona in adopting a strict new law on illegal immigration. One thing that shouldn’t be up for debate is whether it is OK to express an opinion about whether such a law would be a good idea.

But the management of Francis Scott Key Mall in Frederick isn’t so sure. According to the Frederick News-Post, mall owner Pennsylvania Real Estate Investment Trust has asked the owner of the Antietam Gallery custom framing gallery to stop selling “Maryland Stands With Arizona” T-shirts out of his shop.

In a letter to gallery owner James Kehoe, the management cites a rule against “goods with derogatory or offensive political messages,” the paper reported. Kehoe, who considers the shirts to be “patriotic,” responded not by removing the shirts, but by notifying the media and several local officials.

Kehoe cited a dozen items sold at Spencer Gifts, the place where good taste goes to die, that “contained profane language and sexually oriented messages,” the News-Post reported. Kehoe also said Spencer Gifts is selling a shirt “with a derogatory message aimed specifically at illegal immigrants.”

Immigration is a complex issue. Many come to the United States illegally out of desperation, risking a journey that is fatal for some, and taking the least desirable jobs at the lowest pay if they make it.

But nations have the right and the obligation to set limits on immigration -- those of Mexico are much harsher than those of the U.S. -- and those who have come to the U.S. through legal means are right to be angry by the millions who broke the law to get here.

What is not a complex issue is whether we have a right to talk about it. The mall managers and others who would take offense at Kehoe’s shirts may not like restricting entry into the U.S., but they have a very odd idea about what that same country is all about.

“It’s not about the T-shirt,” Kehoe told the News-Post. “It’s about people being victimized by political correctness and people feeling they are not able to speak the truth about things.”

People who run a mall named after the man who wrote the national anthem should understand that.

http://www.msnbc.msn.com/id/39267961/ns ... ington_dc/

Gee whiz, even MSNBC manages to get one right every now and then....

[Big RR]

While I wouldn't buy one of those shirts, absent a contractual provision where he gives mall managment the right to approve/dispprove what he sells, there is no reason he should be restricted from selling a shirt like that.

[Lord Jim]

absent a contractual provision where he gives mall managment the right to approve/dispprove what he sells, there is no reason he should be restricted from selling a shirt like that.

That is a question at issue, Big RR, which makes this kind of interesting, from a legal standpoint:

The letter from the management states that the tenant's actions violate specific terms of the lease, including sections limited his store to the retail sale of prints, framing and directly related items, and another saying he was operating in a manner inconsistent with the general standards of merchandising in the shopping center.

"Sale and display of said goods with derogatory or offensive political messages also violates Section 5.01(c) in which Tenant agrees to operate in a respectable manner," the letter states.

Kehoe responded:

But Kehoe countered that several years ago he complained in writing about the sale of offensive materials at the store located right next door to his. Management did not reply, he said.

He listed 12 examples of products sold at Spencer Gifts as of Sept. 13 that contained profane language and sexually oriented messages. He also gave an example of a T-shirt sold at Spencer Gifts with a derogatory message aimed specifically at illegal immigrants.

Kehoe asks how those products better represent the mall.

And the mall legal team responded with this ass covering bit:

"Pennsylvania Real Estate Investment Trust (PREIT), owner and manager of Francis Scott Key Mall, considers tenant-landlord relationships private," the company said. "As an industry standard, leases and any business or legal matters related to leases, are only discussed with the parties involved. PREIT adheres to this standard."

Kehoe responds:

]Kehoe said he has not heard back from the mall after sending his letter, and does not believe the T-shirts violate his lease. He is allowed to sell art and art-related products, and he designed the T-shirt himself, he said. He also sells the same artwork in a framed print at his store.

(All of the above quotes come from this link:

http://www.fredericknewspost.com/sectio ... yID=110071 )

So while there is no section in his lease agreement that explicitly requires that he get approval for what he sells, there is this vague catch all provision:

""Sale and display of said goods with derogatory or offensive political messages also violates Section 5.01(c) in which Tenant agrees to operate in a respectable manner,"

So, if the mall management deems a product to carry a " derogatory or offensive political message", at it's own whim, that trumps First Amendment rights?

I suspect that Mr. Kehoe will win out here because I'm guessing that the mall managers will realize that whatever legal basis they might have, they're creating a public relations disaster for themselves....

[Gob]

The message is political but not in any way offensive.

I'm glad that the UK is not the only place where PC madness has taken hold

[Lord Jim]

The message is political but not in any way offensive.

It certainly isn't....

There are no vulgar images, (though as a Virginian, I might interpret a picture of the state of Maryland as a vulgar image...that one was for you Guin... ) there were no racial or ethnic epitaphs ....

And it's not like the shirts said:

"Maryland Stands With Al Qaeda" or,

"Maryland Stands With NAMBLA"

The last time I checked, Arizona was a state in good standing among the several states....not "in rebellion"...

(I suppose if one had been hawking tee shirts in Brooklyn in 1862 that read, "New York Stands With South Carolina" an objection could have been raised)

This is very unlikely to wind up as court case, because Mr. Kehoe did what one should do in a situation like this....

He went to the media....

I suspect the mall management will drop the whole thing because to pursue it will make them look like idiots, and probably earn them legions of sign carrying protesters in front of their doors and an active website with the name boycottfrancisscottkeymall.com.....

Not good for business....

But it still raises the question from a legal standpoint, of just what sort of arbitrary control a landlord is entitled to versus First Amendment rights....

[Gob]

But it still raises the question from a legal standpoint, of just what sort of arbitrary control a landlord is entitled to versus First Amendment rights....

Perhaps some of our legal eagles will be able to enlighten us.

[dales]

I'm NOT a legal eagle but my gut feeling tells me this is wrong.

If I lived anywhere near this mall, I'd boycott and tell my friends to do the same.

[Big RR]

Jim and Gob--the courts have routinely upheld the rights of private landlords to control expression/speech on their property, esepcially when it is restricted in a lease signed by the tennant. So, for example, signs, including political signs, can be banned by condo associations if called out in the lease. Applying this reasoning here, I still think the courts would probably not uphold the provision in the lease, saying it was vague as to what was derogatory or offensive (and if they didn't, they would be hard pressed to find this shirt to be either). As to whether he can sell t-shirts at all, that might be a closer case (sure they can sell "art", but not all forms of art--they could not, e.g., sell movie DVDs claiming they are art--most amlls restrict the products sold by various tennants to prevent all stores from offerring the same merchandise).

The other kicker here is that the property is a mall; some courts have held that malls have basically become the town squares of many communities and have placed some limitations on the management imposing content related restrictions on speech within the mall, reasoning that the mall management is acting as a quasi-state authority and its decisions should be scrutinized. That might also affect the rights of the landlord in this case.

[Guinevere]

First of all, this is a private contract between a tenant and a landlord, so the first amendment does not apply. I don't buy BigRR's theory that the mall ownership is a quasi-public entity. Even if the corridors of the mall itself -- or more likely the parking lots and sidewalks leading into the mall -- were considered public space -- I'm pretty confortable that the individual stores are wholly private.

Second, before analyzing the lease I'd need to see the entire lease, not just one portion of a term. But here is a consideration -- does the shop owner want to continue to sell in that space? Even if the shirts are not a breach of the lease, selling them against the wishes of management isn't going to make the management wish to continue that lease once the term expires.

Thirdly, as a Marylander, I do not need or want anyone from Vile Virginia instructing me on the Constitution. You know, the one those folks shredded and burned in the mid-1800s.

All that being said, I think the mall owners are being ridiculous, and have just garnered more publicity and support *against* their position (assuming they don't agree with the proposition on the shirt) then if they had let the shop continue to see these shirts be sold. But we don't legislate or control stupid decisions when they are between private parties and don't violate any laws.

[Big RR]

Guin--I'm not saying the current state of the law is that the mall owners do not have the right to enforce lease provisions because the mall is the quivalent of a downtown or public area, but I think it could influence the courts opinion, especially if the provisions of the lease are vague. The courts may well find that the lease could have prohibited sales of products of this sort, but did not; as you correctly state, we would have to see the entire lease to be certain.

As for being a Marylander criticizing Virginians, please recall that the only reason your ancestors did not join the rebellion was because the president declared martial law and turned guns on the statehouse threatening to bombard it if tthe legislature took up anytalk of secession. Only by killing off democracy were MArylanders spared joning the failed rebellion.

[Lord Jim]

As for being a Marylander criticizing Virginians, please recall that the only reason your ancestors did not join the rebellion was because the president declared martial law and turned guns on the statehouse threatening to bombard it if tthe legislature took up anytalk of secession. Only by killing off democracy were MArylanders spared joning the failed rebellion.

Lincoln also had any legislator who supported secession arrested. Lincoln received 2% of the Maryland popular vote in the 1860 election.

I don't frankly know why, from the perspective of the times, secession would have been considered "shredding the Constitution" anyway....

There was nothing in the Constitution that prohibited secession.

[Long Run]

I don't frankly know why, from the perspective of the times, secession would have been considered "shredding the Constitution" anyway....

There was nothing in the Constitution that prohibited secession.

I wondered about this too for a long time. I still don't know about the Constitutional issue, but from a political standpoint, there were two main points as I recall. In Grant's Memoirs he says that if there had been a state that wanted to secede in the first 30-40 years of the Union, they probably would have been granted that right. However, after the wars with the Indian Nations and Mexico, and national effort to expand the country, there was much less belief that a state could just up and leave, especially without paying the federal government for all of the benefits it had received. So this is as much a legal argument as a political one for not allowing secession.

The other political reason is the almost religious fervor in the belief of America as the proving ground that democracy could work and not blow itself apart (as so many had predicted). Ironically, we blew ourselves apart to avoid blowing apart.

[Long Run]

As for the shopping mall, I agree this is mostly a contract issue between landlord and tenant. There is a fair amount of litigation concerning whether malls are the equivalent of the public square for First Amendment rights. Based on the very limited amount of political activity one sees at the malls, my guess is that the law tends toward favoring the mall owners rights to conduct business as they like (meaning very limited free expression rights).

[Guinevere]

I've read the letters of my ancestor who fought for the Union at Fredricksburg, and I'm quite sure he was not coerced into his positions. I can't quote them chapter and verse at the moment, but his service was part of a long line of family service to this country -- the complete, federal nation -- starting with service in the militia during the war of 1812, and fighting back the British invasion. FWIW, at that time my family was not living in Baltimore, but were over on the Eastern Shore farming the "plantation." There are no records that show any slave ownership, although one can never rule out the possibility.

[Sue U]

On the legal issues I agree with Guin's analysis. On the relative merits of Maryland and Virginia ... let's just say, the less said the better.

[Jarlaxle]

As for being a Marylander criticizing Virginians, please recall that the only reason your ancestors did not join the rebellion was because the president declared martial law and turned guns on the statehouse threatening to bombard it if tthe legislature took up anytalk of secession. Only by killing off democracy were MArylanders spared joning the failed rebellion.

Lincoln also had any legislator who supported secession arrested. Lincoln received 2% of the Maryland popular vote in the 1860 election.

I don't frankly know why, from the perspective of the times, secession would have been considered "shredding the Constitution" anyway....

There was nothing in the Constitution that prohibited secession.

No, there wasn't...the only problem was a tyrannical wanna-be dicator named Abe and his monumental ego.

[Guinevere]

On the legal issues I agree with Guin's analysis. On the relative merits of Maryland and Virginia ... let's just say, the less said the better.

Says the Jerseyite!

[Lord Jim]

Ladies and Gentlemen, the state song of Maryland:

Maryland, My Maryland

The despot's heel is on thy shore,
Maryland!
His torch is at thy temple door,
Maryland!
Avenge the patriotic gore
That flecked the streets of Baltimore,
And be the battle queen of yore,
Maryland! My Maryland!

Dear Mother! burst the tyrant's chain,
Maryland!
Virginia should not call in vain,
Maryland!
She meets her sisters on the plain
"Sic semper!" 'tis the proud refrain
That baffles minions back again,
Maryland!
Arise in majesty again,
Maryland! My Maryland!

I hear the distant thunder-hum,
Maryland!
The Old Line's bugle, fife, and drum
Maryland!
She is not dead, nor deaf, nor dumb-
Huzza! she spurns the Northern scum!
She breathes! she burns! she'll come! she'll come!
Maryland! My Maryland!

Just three of nine versus....

The state song of Maryland (it remains to this day, the state song) is a stirring call to arms, and poetically eloquent appeal for her to join the Confederacy....

[dales]

Maryland?

Named after Mary the mother of Jesus.

[Sue U]

Says the Jerseyite!

..and neutral observer.

Please be advised that I do vacation in BOTH Maryland and Virginia. Each has its charms -- as does my native State, although admittedly those are sometimes hard to find. (I once saw a T-shirt that read, "I'm So Tough, I Vacation In New Jersey.")