Free Speech Not Allowed? Mall of America Can't Stop Black Lives Matter Rally over Jamar Clark Death

December 23, 2015


Kandace Montgomery

organizer with Black Lives Matter Minneapolis. She’s one of the defendants named in the case filed by Mall of America against Black Lives Matter activists. In Tuesday’s ruling, she was barred from attending today’s protest at the Mall of America.

Jordan Kushner

civil rights and criminal defense attorney in Minneapolis. He’s representing the Black Lives Matter activists who have been sued by the Mall of America.

Image Credit: Nicholas Upton / Flickr

Is freedom of speech welcome at the Mall of America? A judge has rejected an effort by the nation’s largest shopping center to stop a Black Lives Matter protest and force organizers to post on social media that it’s canceled. But the mall did manage to ban three organizers from attending. Activists say the protest will go ahead as part of a series of actions demanding justice for Jamar Clark. Police claim Clark was shot dead after a scuffle with officers. But witnesses say Clark was shot while handcuffed. The Mall of America’s failed effort to stop the protest comes amid a tense climate for Minnesota activists. Alleged white supremacists opened fire on a rally over Clark’s death last month, injuring five people. Officers have also raided the protesters’ encampment. The protest showdown comes just weeks after charges were dismissed against BLM organizers for a similar action at the mall one year ago. Kandace Montgomery, one of the three Black Lives Matter Minneapolis organizers barred from today’s protest, joins us along with her attorney, Jordan Kushner.


This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: The Mall of America in Minnesota is the nation’s largest shopping center. But despite its mammoth size, over 4.8 million square feet, it apparently has no room for protest. That’s the message being sent after the mall tried to stop the group Black Lives Matter from holding a rally there today. Black Lives Matter has organized the demonstration during busy pre-Christmas shopping to protest last month’s fatal police shooting of Jamar Clark. The Mall of America took protesters to court, trying to bar them from its property. But on Tuesday, a judge rejected the mall’s attempt to ban the rally and to force its organizers to post a cancellation message on social media. In a victory for the mall, the judge did agree to ban three Black Lives Matter organizers from attending.

Activists say the protest will go ahead as part of a series of actions demanding justice for Jamar Clark. Police claim Clark was shot dead after a scuffle with officers, but witnesses say he was shot while handcuffed. Black Lives Matter wants the release of police video and the prosecution of police officers involved.

AMY GOODMAN: The Mall of America’s failed effort to stop the protest comes amidst a tense climate for Minnesota activists. Alleged white supremacists opened fire on a protest over Jamar Clark’s death last month, injuring five people. Police have arrested four suspects and may treat the shooting as a hate crime. Activists have called for federal terrorism charges against them.

Officers have also raided the protesters’ encampment outside the 4th Police Precint. In one incident, an officer dressed in fatigues and carrying what appeared to be a gas-launching gun pointed his weapon at Congressman Keith Ellison’s son, Jeremiah. The photo went viral.

The Mall of America protest showdown also comes just weeks after charges were dismissed against Black Lives Matter organizers for a similar action at the mall a year ago. It later emerged members of an FBI Joint Terrorism Task Force had tracked the demonstration, which drew over 3,000 people.

For more, we’re joined by two guests. Kandace Montgomery is with us. She is one of the organizers with Black Lives Matter Minneapolis, one of the defendants named in the case filed by Mall of America against Black Lives Matter’s activists. In Tuesday’s ruling, she’s one of three organizers barred from today’s protest. Jordan Kushner is a civil rights and criminal defense attorney in Minneapolis. He’s representing the Black Lives Matter activists sued by the mall.

So, I wanted to start off by asking Kandace—you’re one of the people—you had a half-victory with the court. The judge said she can’t rule that you have to say that the protest is canceled. But you, yourself, Kandace, are one of three organizers that she has ruled cannot attend this protest. Will you be going?

KANDACE MONTGOMERY: Will I be—will I be headed to the Mall of America? Well, we continue to still hold down the protest, and we’re not going to be intimidated by Mall of America’s tactics.

JUAN GONZÁLEZ: But why specifically yourself and two other organizers were singled out and told by the judge you could not attend?

KANDACE MONTGOMERY: I think that because, you know, the mall had me tied up, and, as well, Michael, in the previous case, and then has seen Miski, as well, in the public light, that they are under the misconception that we are the only three organizers of Black Lives Matter Minneapolis. But really, we are a leaderful movement across the country, and especially Minneapolis. There are many other people who are holding down and part of planning this protest, as well, with me.

AMY GOODMAN: Jordan Kushner, can you respond to this sort of mixed ruling of the judge? How unusual is it?

JORDAN KUSHNER: I don’t—I think the case is unusual, especially given the present-day law, where they weren’t only seeking to bar people from the—from a specific activity, but they were trying to govern people’s speech. They trying to get—they were trying to order that the people that they were suing and anyone associated with them couldn’t promote any kind of protest, that they had to post on Facebook and Twitter that the protest was canceled and that they wouldn’t be allowed to promote the protest on Facebook or Twitter. So, the requests for relief were really unusual, and unfortunately—and fortunately, they were denied. It was also unusual because they didn’t ask to ban anyone from the property; they just said they can’t demonstrate, which itself is really vague. What does that mean? Does that mean you can’t go to the mall with a group of people and talk about police killings? So, I think the way the case was handled probably wasn’t unusual, but the kind of case the Mall of America brought, where they were trying to abuse their power and money in a way that so violate people’s First Amendment rights, is real unusual.

JUAN GONZÁLEZ: And could you talk, Jordan Kushner, about this whole—the legal history of this battle over the Mall of America being a private—a private operation? Because clearly malls in the United States in major cities have really taken the role almost of a public square or town square, because so much of the public ends up at them on any particular holiday or weekend. So what is the history, the court history, over this issue?

JORDAN KUSHNER: It has been a really highly contentious issue, and that’s really coming to fruition here. There was a state Supreme Court case back in 1999 called State v. Wicklund, where protesters tried to challenge their right to be able to exercise their First Amendment rights in the mall, and the Minnesota state Supreme Court rejected that and stated, on very clear terms, that they consider the mall to be private property, and they had a right to decide what could take place on that property. And because of that, there hasn’t been any ability at this point to establish any right through the courts to be able to have free speech rights in the mall.

And as you said, they’ve really taken on the role of appropriating the traditional public forum. Instead of the town square on the public sidewalk, where people could congregate and talk about politics and do what else they want, the mall has taken over that role. They have all kinds of entertainment and gathering spaces. And then, meanwhile, they get—but they can govern the speech and restrict it, in a way that’s only conducive to their profit making and doesn’t serve any other kind of community function.

AMY GOODMAN: I wanted to ask Kandace, the whole protest around Jamar Clark, for a global audience right now who’s tuning in, can you explain what happened to him and what you’re calling for?

KANDACE MONTGOMERY: Yeah, absolutely. So, on the night in which Jamar Clark, many of which are saying was executed by the Minneapolis Police Department, witnesses are overwhelmingly accounting that he was handcuffed while shot in the head. Following that immediately, community called for action. They held a march, and then Black Lives Matter began the occupation of the 4th Precinct in North Minneapolis, Minnesota. And that was held for 18 days, until shut down by the Minneapolis Police Department and our mayor, Betsy Hodges. And, you know, around that, we are really continuing to demand the release of the tapes into the incident, to ensure justice for him, as well as long-term structural change for black folks in the community.

JUAN GONZÁLEZ: And, Kandace, your group has often linked the racial violence or racial attacks by police to anti-Muslim bias, especially, obviously, in Minneapolis, where there’s a large Muslim community. Could you talk about that?

KANDACE MONTGOMERY: Absolutely. I mean, that’s one of the large reasons that we’re going to the mall. They have their own—they have their own police force. They have their own counterterrorism unit inside of the mall. On top of that, on top of using public resources for that, they have—research has been done around the racial profiling and discrimination that happens especially to our Muslim brothers and sisters and East African immigrants inside of the mall. While also employing those people at under livable wages and lacking quality jobs, they discriminate from them while also profiting off of them. So we really want to call—call the connection between anti-black violence and Islamophobia, and how that happens everywhere, including the Mall of America.

AMY GOODMAN: I wanted to ask you about the shooting that we talked about in the lead, last month in Minneapolis, the five Black Lives Matter protesters shot and wounded while they were gathered in an encampment outside the police precinct, where they were protesting the killing of Jamar Clark. They say the shooters were white supremacists. At least one of them was wearing a mask. Activists say the white supremacists opened fire after a group of protesters attempted to herd them away from the encampment. This is Jie Wronski-Riley describing the shooting to the Minneapolis Star Tribune.

JIE WRONSKI-RILEY: Then it was like they turned around, and then they just like started shooting. And at first, I wasn’t sure—like, I was like, "Are they shooting firecrackers?" because it was so loud, and it was like all this, like, sulfur, whatever. And then it was like—then it was like the person like right next to me on my left went down, the person on my right went down, and I was like, "[expletive], they’re actually shooting at us. They’re shooting bullets at us."

AMY GOODMAN: Jie Wronski-Riley describing what happened. Kandace, as we wrap up, how your—how those activists who were shot are doing right now? And again, let’s end where I began—what your plans are today, when this rally is expected to take place?

KANDACE MONTGOMERY: Absolutely. So, those activists are doing OK. I think that all of them are continuing to deal with the mental trauma that was inflicted on them from that incident. Many still need support with medical bills, also housing and food. There is one young brother who was shot in the stomach, who is still continuing to deal with medical difficulties and is still in the process of healing.

As far as our plans for today, we’re asking folks to join us at the Mall of America at 1:30. We will continue to hold a peaceful protest demanding justice for Jamar Clark, demanding justice for many of the bodies, black bodies, slain across the country and across the globe by state-sanctioned violence.

AMY GOODMAN: Kandace Montgomery and Jordan Kushner, I want to thank you very much for being with us.


AMY GOODMAN: Kandace Montgomery, organizer with Black Lives Matter. Jordan Kushner, her attorney, as well as other Black Lives Matter activists.

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