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The Malling of America: The Selling of America's Public Parks and Streets--The Economic Censorship and Suppression of First Amendment Rights

by Stephen H. Baird

Stephen Baird 1981-2021

I wrote the editorial enclosed below for the December 1981, Street Performers' Newsletter. The US Constitution was and still is fundamentally flawed, because of the over reliance on the John Locke's concept of private property to ensure individual freedom. The most glaring Constitutional flaws were the concepts that only men with property could vote and that property included the owning of people as slaves. John Locke was a share holder of the slave trading enterprise, the Royal African Company.

This fundamental Constitutional flaw manifests itself repeatedly. The attempts of censorship and suppression of First Amendment rights by mall and merchant associations through the assertion of "private property" rights is just one example.

Rouse Company malls have been sued in civil court numerous times for First Amendment violations. The case in Boston was decided in Federal Court on August 27, 1990 (Citizens to End Animal Suffering v Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (1990) and determined that animal rights activists had a right to picket and protest at Faneuil Hall Marketplace They were arrested for passing out leaflets to restaurant patrons to not eat veal). Judge Tauro stated Faneuil Hall Marketplace must be considered within its historical context and cannot be considered private property. Also read the new book on the Rouse Company: Rouse Merchant of Illusion by Nicholas Dagen Bloom. and see this book review in the Baltimore City Paper: http://www.citypaper.com/current/books.html

"'Rouse attempted to make malls genuine public gathering places,' Bloom says. 'Unfortunately, this goal was not built into the actual machinery of the mall, which ultimately undermined their idea as Main Street.' Balance-sheet Darwinism, he says, saw to it that only the fittest merchants--corporate chains--could survive." Builder of Dreams by Brennen Jensen,Baltimore City Paper

There was an attempt to impose a $500 license fee in the spring of 2004 at South Street Seaport. See this page HERE for details of the petition drive and work to repeal this fee by Josh Weiner.

Architect Benjamin Thompson who designed  Quincy Market - Faneuil Hall Market Place became disappointed with the corporate chain stores malling of the market ...

That's not my Faneuil Hall Architect Ben Thompson laments the malling of his landmark -- and America - Boston Globe, June 15, 1995, Living Section, page 69
"But most of the news I get about Faneuil Hall is not good. Architectural friends say the controls are not effective. Disney's there, which is too bad, because it's strictly tourist, and that's not what we had in mind. What would I have done differently? Well, I might have planted more trees."

At his bedside is his wife and business partner, Jane Thompson, and so harmonious is their relationship that while one is speaking the other nods. Sometimes, they finish each other's sentences. When he hesitates to pass judgment, she speaks up -- audaciously and with his approval -- to express not only what's on her mind but what's on his.

"I think it's fair to say, if I can put words in your mouth, which I have done before, is that the operation of the marketplace is not under the architect's control. There's been a shift from local business to national chains and tourist shops. We warned in the beginning tourism would corrode, and it's come true. Tourism changes what merchants sell, and that affects the environment. Also, it's run by a mall developer applying mall principles to what was meant to be a more delicate environment. Bringing in Disney is trendy, but it's out of context and makes Faneuil Hall like every mall in America.

"The other thing is design, the overuse of junk -- banners, graphics and so on. That's in the character of a mall and, yes, it can be changed, but if tenants are happy and if rents are going up and if they're not losing money, where's the incentive? People say Faneuil Hall Marketplace has lost its Boston identity, and if you look around you have to agree."

A Faneuil Hall for Bostonians - January 16, 2015 - Boston Globe editorial by Max Grinnell highlighted the same concerns:  HERE

The 10th U.S. Circuit Court of Appeals decided on October 9, 2002, that the Mormon church cannot restrict speech on the sidewalks running through its plaza in Salt Lake City, Utah. The plaza was once a part of the Main Street and was sold to the church. However, to ensure pedestrian access, the city retained easement rights. The First Unitarian Church in Salt Lake City with support from the ACLU successfully sued the Church of Jesus Christ of Latter-day Saints restrictions on demonstrations and protest on the plaza.

    "Because sidewalks are a traditional public forum the city should protect free-speech rights there." "The city cannot create a 'First Amendment-free zone.'"

        First Unitarian Church of Salt Lake v. Salt Lake City, 308 F3d 1114 (10th Cir. 2002)

Central deciding factor was the "retained public easement rights," plus area was a historical public space and former public streets. Similar case: American Civil Liberties Union, NV v. City of Las Vegas 333 F3d 1092 (9th Cir. 2003)

However, the court decisions have at best been inconsistent. Remember to be aware that judges are private property owners and the share holders. The Supreme Court once upheld the concept that people could be considered private property. It took a Civil War to end the concept of owning people as private property not the wise decision from the judicial system. The battle rages on repeatedly in state and federal courts. (See: Ball, Howard. "Careless Justice: The United States Supreme Court's Shopping Center Opinions, 1946-1976." Polity 11, no. 2 (1978): 200-28.)

A UCLA Department of Urban Planning research book chapter summary on the use of public space can be found on this web site at: Sidewalk Democracy: Municipalities and the Regulation of Public Space

Other articles and position papers on the issue of over commercialized public spaces:

Freedom is a Constant Struggle-- Keep the Faith

Stephen H. Baird


Malls - The Selling of America's Streets

Street Performers' Newsletter, December 1981

I briefly mentioned this subject in the June newsletter. I am elaborating extensively because the selling of the streets has accelerated dangerously. This is also a response to the misguided proposal presented by David Finnigan in the August, IJA Newsletter called "Putting Jugglers in the Street." Please consult the following books, articles and court cases for background and depth:

The Fall of Public Man by Richard Sennett, 1974, 1976, Random House, Inc., NY, NY

Economic Democracy by Martin Carney and Derek Shearer

Decades of Decision by Michael Harrington

For Sale: Freedom of Speech by Charles Rembar, Atlantic Monthly, March 1981, p 25-32

Passing the Hat - Street Performers in America (Delacorte Press 1981) by Patricia J. Campbell

Lloyd Corp. v. Tanner, 407 US 551, Justice Marshall's dissenting opinion pages 570-586

Pruneyard Shopping Center v. Robbins, 40 CCH S. Ct. Bull. pp. B2703-B2725 (1980) and 153 Cal. Reporter 854 (1979)

http://www.stanford.edu/~amd/download/IPandSpeech.pdf Paper from Standford University on Intellectual Property and conflicts with First Amenedment 2002

Merchants and street performers were once traveling partners, kindred spirits in the intermingled free market of goods and ideas. The farmers markets and craft fairs of today reflect those times. However, soon after the industrial revolution and the merchant revolution that followed (the American revolution was surely merchant-inspired and the results being only men with money and property could vote), the division between street performers and merchants expanded.

During the last 200 years, there have been gains to change the merchant (Hamilton) revolution into a populous (Jeffersonian) revolution. The loss of control by merchants through governmental action has not been accompanied by loss of economic control. Money still talks the loudest. Politicians, decisions and access to public debate all have a price tag. No where is this more evident than on the street. Merchants in and out of government can not censor what is heard on the street. So they bought the streets and called them malls.

Malls account for 50% to 70% of all merchant sales in 21 of the largest cities in 1973 (See Pruneyard 153 Cal. Reporter, page 860). Since 1973, not only has the number of suburban malls increased, there has been extensive growth in the number of downtown urban malls, which can only enlarge those percentages (See Time, August 24, 1981). The public street of America are becoming the private street of merchants. The acquisitions of streets coupled with the financial control of the various elements of the mass media means access to public thought is increasingly being funneled through fewer and fewer people with an increasing price tag.

All this has not gone unnoticed in the courts. On the public streets the issue is clear-cut. Judge Rya Zobel stated, "The requirement of merchants' approval is irreconcilable with freedom of expression. It is unqualified censorship and it is just what the First Amendment forbids." Goldstein V. Nantucket 477 F. Supp. 606, 609 (1979).

The Supreme Court has not been clear on the issues of malls (private property) and freedom of speech. At first the courts decided in favor of free speech in Marsh v. Alabama (Company owned town, 1945) and in Amalgamated Food Employees Union v. Logan Valley Plaza (Mall, 1967). The courts then started to rule in favor of private property in Lloyd Corp. v. Tanner (Mall, 1972) and Hudgens v. National Labor Relations Board (Mall, 1975). The latest twist in this issue occurred when the court ruled that malls in California could be considered public property under the California Constitution in Pruneyard Shopping Center v. Robbins (1980). (This last case could make the audition systems at Pier 39, The Cannery and Ghiradelli Square in San Francisco unconstitutional.)

The only consistent voice has been Justice Marshall. The following is excerpted from his dissenting opinion in Lloyd Corp. v. Tanner:

For many persons who do not have easy access to television, radio, the major newspapers, and other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill or to utilize other free or relatively inexpensive means of communication. The only hope that these people have to be able to communicate effectively is to be permitted to speak in those areas in which most of their fellow citizens can be found. One such area is the business district of a city or town or its functional equivalent....

It would not be surprising in the future to see cities rely more and more on private businesses to perform functions once performed by governmental agencies. The advantages of reduced expenses and increased tax base cannot be overstated. As governments rely on private enterprise, public property decreases in favor of privately owned property. It becomes harder and harder for citizens to find means to communicate with other citizens. Only the wealthy may find effective communication possible unless we adhere to Marsh v. Alabama mad continue to hold that "(t)he more an owner, for his advantage, opens up his private property for use by the public in general, the more do his rights become circumscribed by statutory and constitutional rights of those who use it."

The issue of malls is really the issue of money and its power. Please read the entire article "For Sale: Freedom of Speech" for the following is only part of the arguments:

The fallacy lies in the premise...that the use of wealth to amplify voices furthers freedom of speech. I suggest it does the opposite. Speech and press, in the sense in which the first Amendment uses those terms, must have an audience. The drafters of the Bill of Rights were not interested in the right to mumble. Nor is utterance to a few the equivalent of utterance to many. Degrees of audibility have to be considered. First Amendment freedoms are defeated when one of two conflicting arguments reaches a great many people while the other reaches few....

We are more or less committed to a capitalistic system in our economy. But this does not mean that the use of capital should determine First Amendment rights. A literal marketplace of ideas, anarchic except for the iron rule of money, contradicts the First Amendment. If all the stalls are occupied by the few merchants rich enough to rent them, we cannot have the free multifarious offerings that the metaphor suggests. We have instead, a few super-supermarkets, and here and there a lonely peddler who cannot possible compete.

Let us not, by faddish extension of meaning, make First Amendment guarantees seem silly. Let us not get free private enterprise confused with free expression.

There are some dangerous consequences when art is controlled by merchants. Merchants often exploit situations for immediate gain and the abandon it when the profits cease. the demise of the vaudeville circuit should be a constant reminder for all jugglers, clowns and street performers, of that fact. Profit, not art, is the motivation behind merchant action. Profit is greatest when one idea, one record, and one personality is exploited. Richard Sennett in the Fall of Public Man explains it this way:

The "star system" refers to the profits which accrue by maximizing the distance between fame and obscurity, such that the people lose desire to see a live performance at all if they cannot see someone who is famous. Throughout the 20th century serious musicians and actors have railed a the state of affairs which has made the public less and less willing to watch or listen live to those whom it does not know; the protests, and the alternative media the protests spawned, have largely failed. Indeed, in the 1960's, with the growth of rock music supposedly signifying a challenge to mores of bourgeois culture, the star system became an iron law of wages.....

In sum, the star system in the arts operates on two principles. The maximum amount of profit is produced from the investment in the smallest number of performers; these are the "stars." Stars exist only by checks to the majority of artists practicing their art.

Merchants have already perceived street performing in this way, looking for the most famous to enhance their image. Dave Finnigan quoted a public relations director in the proposal "Putting Jugglers in the Street."

"Because Ghiradelli Square is a world-famous landmark and specialty shopping center, it is most important that what we do reflect the best possible quality. We showcase what I consider to be the creme de la creme of street talent available in San Francisco."

These comments by Paul Levey of the Cannery as quoted by Patty Campbell in her book Passing the Hat only underscore the disregard for the art:

"I'm here to protect the middle-class sensibilities.... When I audition I no longer look for talent; I no longer look for originality-- I look for people who are neatly dressed and who don't look like they'll be drinking wine or smoking dope in public."

Also on page 23 in Passing the Hat

Some performers are philosphically opposed to the stages of San Francisco. New York funambulist Philippe Petit said, in an article in The Village Voice, "In San Francisco, there is an enclosed garden where, after an audition, you are given a permit with a seal of approval and a chunk of concrete. Entertain the pedestrian from 10:30 to 2:42 P.M.! Soon they will build a roof to protect the festivities from the maritime breeze; then there will be left only the construction of a gate, the posting of an admission fee, and the street is dead." Mindreader Glenn Gazin is even more negative: "If I'm going to book myself, I want to be paid, I think it's so ridiculous to groval for the privilage of performing gratis. It's sheer exploitation."

Merchants are maximizing their profits by maintaining their world-famous and middle-class images, by limiting the number of artists who will be able to survive off their art, and by limiting access to the public through audition systems and the purchase of the public streets. If the trend to curtail diversity and conflict of ideas necessary for the growth of art, and the limitation of people to communicate and argue those ideas among themselves are left unchallenged, then free expression and street performances, one of the integral elements of free expression, may cease to exist.

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