Reason lodged its objection to plans by the city of Bloomington to pursue criminal and civil charges against the organizers of a large Black Lives Matter protest which shutdown a section of the Mall of America on the busiest shopping day of the year. Author Elizabeth Nolan Brown writes:
[Protestors] efforts were, technically, criminal: Mall of America has long forbidden demonstrations within the shopping mega-center and, prior to the event, Bloomington Police urged protesters to choose another venue. They refused. For two hours, the peaceful but unlawful assembly marched through Mall of America with protest chants and #BlackLivesMatter signs.
In a letter to [Bloomington City Attorney Sandra] Johnson and Mall of America administrators, a group of clergy involved with the protest question why such a large security force was needed anyway. “We were shocked and dismayed to see that the Mall of America did not believe the peaceful intentions of the peaceful gathering,” states the letter.
This use of the word “peaceful” trivializes the sanctity of property rights, which seems an odd play for a libertarian publication like Reason. There’s nothing peaceful about trespass. Property matters. Those who encroach upon the rights of others by aggressively occupying private property are not acting peacefully. They’re committing an act of violence.
“Organizers said they chose to demonstrate at the mall in spite of [it constituting trespass] because it was the most high-profile location in the area,” Brown writes. In other words, the protestors sought to steal a platform which does not belong to them. They did so to gain attention which they could not otherwise earn utilizing their own resources in an appeal to reason. They placed the value of their message above the consent of those receiving it. None of this amounts to peaceful behavior.
Brown may concede that point given the chance, but attempts to blunt it by suggesting that the Mall of America isn’t purely private property:
Yes, Mall of America is private property—albeit private property heavily subsidized by the government…
The Mall of America has a long history of legal controversy concerning protests there. In the 1990s, a Minnesota court found that because of the mall’s reliance on substantial public subsidies, it was “born of a union with government” and could only place reasonable time, place, and manner restrictions on protests, not ban them all together. But the Minnesota Supreme Court reversed the lower court’s decision in 1998.
Libertarians should be reluctant to embrace as precedent the notion that subsidy turns private property into public property. If you live in America, you are subsidized to one degree or another, whether you actively seek it or not. We all drive on, or engage in commerce supported by, public roads. Most of us send our kids to public schools. It seems likely that any given product could be tied to a subsidy at some point along its supply chain. So if you’re going to argue that subsidy makes private property public, then there is no private property. The Minnesota Supreme Court got it right.
Brown otherwise argues that the city’s pursuit of restitution proves inappropriate:
[If] Bloomington Police were going to arrest protesters, during the event was the time to do so. Instead, the city let the event go down largely unfettered but now plans to bill protest organizers for the ample police presence—including riot cops, state troopers, Bloomington officers working overtime, and officers called in from other cities—at the mall.
… [restitution] money would not, however, go to Mall of America for the potential business losses it incurred. Rather, it would go to the city to cover the cost of policing the event.
That’s a hell of a way to handle “criminal justice”, no? Private property owners lose. Peaceful demonstrators lose. But the city makes money at everyone’s expense!
Two points are intermingled here. First, Brown correctly notes that the time to arrest protestors was during their illegal trespass. Doing so may have blunted the financial loss incurred by the Mall of America, and would have proven a just response to criminal behavior. Indeed, the mall may retain standing to sue protestors.
That said, police protection does come at a cost which someone has to pay. Who morally should?
Shouldn’t the aggressor cover the expense? Why should it fall upon the victim? Why should it fall upon taxpayers?
No one is “making money” in this scenario. The city will likely never get its money, as these organizers probably don’t have it. But even if they did, restitution isn’t profit. It’s restitution.
The idea is to balance the scales of justice. Those who act aggressively in violation of the rights of others should be punished through criminal charge, civil restitution, or both. If protestors are going to wield the term “justice” as a rhetorical tool, they should at least act as if they believe it universally matters.
(Today’s Fightin Words podcast is on this topic available here.)