Associated Press, 22. Sept. 98
MANCHESTER, N.H. For Arnie Alpert, the question is not whether protesting inside a shopping mall was right or wrong, but whether he and his supporters will be allowed to do it again. Alpert and seven others were in Manchester District Court today to defend their right to distribute leaflets in a private shopping mall.
The eight were arrested April 18 on trespassing charges when they refused to stop passing out leaflets in front of a Footlocker store at the Mall of New Hampshire. The fliers criticized Nike, Disney and J.C. Penney for their treatment of workers in developing countries.
Today’s hearing in Manchester District Court focused on the group’s argument that malls have replaced Main Street and the common areas of malls are essentially sidewalks where citizens should have a First Amendment right to free speech.
The protesters, known as the "Footlocker Eight," argued today that the charges should be dismissed.
"I felt it was important to bring this information to shoppers in the places where these companies have their retail outlets," testified Alpert, a Quaker activist who lives in Canterbury.
He said he was motivated by "the types of stories we hear about workers being paid starvation wages, stories we hear about people being kidnapped or tortured because they stand up for their rights as workers."
Alpert testified there was little choice as to where his group could protest the companies named in the leaflets, because they only have stores in malls.
This is not the first case to challenge the rights and roles of malls.
In Pruneyard Shopping Center v. Robins (1980), the U.S. Supreme Court said malls were town-like and the First Amendment rights of free speech and political protest applied. However, in Lloyd Corp. v. Tanner (1972), the court ruled malls did not have to allow people on their property for reasons other than shopping.
Several states, including California, New Jersey and Alaska, have decided that malls are the equivalent of Main Street or the town square. While protesters cannot enter stores, they can pass out leaflets in the common areas, the New Jersey Supreme Court decided in 1994.
Mall of New Hampshire officials agree shopping centers resemble town centers, but say that doesn’t mean they should turn into political forums.
Although senior citizens may use malls for fitness walks and charities may be allowed to raise money inside, that does not mean malls are public property, Carole Miner Schuman, senior vice president for Wellspark Group, the managing agent for the mall, has said.
In its motion to dismiss the charges, the protesters argue that although the Mall of New Hampshire claims to enforce a policy of not allowing political events inside, it has a history of hosting politicians, including visits by Mayor Raymond Wieczorek and presidential candidates Lamar Alexander and Steve Forbes. If the mall opens its doors to some political groups, it must open them to all, the defendants argue.
Mall officials argue that the other groups which have held events inside were trying to educate shoppers, while the protesters aimed to dissuade mall visitors from shopping.
Vogelman disputes that, saying the group never asked shoppers not to buy goods, but only to complain to their political representatives and the shops’ parent companies about their labor policies.
If their motion fails, the group plans to use a so-called "competing harms" defense, an argument that maintains a person broke the law in order to prevent a greater harm.
Beth Campbell, of Concord, one of those arrested, said the atrocities committed in the sweatshops of developing nations left the group little choice but to protest at the mall, even at the risk of breaking the law.
Several groups, including the state Democratic Party, Animal Rights League, AFL-CIO, New Hampshire Peace Action and Association for the Elderly, have joined a brief backing the protesters.
Testimony will resume Oct. 14.