Freedom of expression on Facebook is issue in BLM-MOA showdown

[Update: A judge has rejected the social media portion of the restraining order, while granting an injunction against a protest.]

Thanks primarily to the Black Lives Matter protests outside the 4th Precinct, it’s unlikely that anyone with an inclination to care doesn’t know about the case of Jamar Clark, the young African American man who was shot by Minneapolis police in a confrontation in mid-November. It was all over the news, you may recall.

Since the city broke up the tent city which had sprouted outside the precinct, it hasn’t been all over the news, and that’s a problem for Black Lives Matter; issues have a habit of disappearing once an immediate “threat” is removed.

And that’s why the group is planning to protest at the Mall of America; it hasn’t been in the news. Now it is, thanks to the attempt by the Mall officials to get a restraining order against BLM. We’re all over it, media-wise.

No shopper at the Mall is going to change his or her mind if the protest is allowed. No member of the public is going to change his or her mind about the Clark case if it isn’t.

Whether the mall is public property or not was hotly debated when there was a similar demonstration last year, and there’s no real reason to debate it again here. Like the Clark case itself, minds are made up. The mall, wittingly or wittingly, is providing the opportunity for a group to get what it needs to keep an issue alive — media coverage — even if the issue of how Clark died isn’t the issue being debated in the present attempt to restrain BLM from protesting.

What is different is the attempt by the Mall of America, through its attorney, Susan Gaertner, to force organizers to either delete any social media announcing plans for the demonstration, or, if the judge so orders, to require someone — who is not at all clear — to post on Facebook and Twitter that the protest has been canceled.

Assuming the judge went to law school, Gaertner is on a fool’s mission on the request. She seemed to acknowledge as much today when MPR News Morning Edition host Cathy Wurzer kept asking her by what right — by what law — someone can be compelled to post something (or not post something — on social media.

“The social media posts are what drives people to this unlawful protest. Black Lives Matter use Facebook and other social media tools to their purposes and their purposes are to try to organize and hold a demonstration at the Mall which is clearly prohibited by law and by the Mall itself,” she said.

But nobody can be arrested for a crime if it hasn’t occurred yet. Perhaps one can be charged with conspiracy, but that still requires someone to actually conspire first.

“If they’re going to organize by social media, it only seems fair that they can unorganize or cancel the event by social media,” Gaertner said.

And, indeed, that might seem fair to some people, but compelling someone to express something on social media isn’t how this works in a free society. It’s not how any of this works.

“We certainly don’t have a lot of case law about social media,” Gaertner acknowledged when pressed by Wurzer. “I just keep going back to just sort of common sense…. it only seems right and logical that the remedy for encouraging an unlawful protest is to simply put on their Facebook page (that) it’s canceled.”

This is the sort of thing that horrifies people who’ve read the United States Constitution.

“It appears to be unconstitutionally overbroad and an improper prior restraint on speech,” Minnesota ACLU boss Chuck Samuelson said in a statement. “Mall of America, and other corporations, should not be able to dictate what private citizens write on their social media accounts.”

Earlier this year, the U.S. Supreme Court overturned the conviction of a man who appears to have made threats on Facebook. “The First Amendment’s basic command is that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable,” the man’s attorney, John P. Elwood wrote.

The purity of that sentence was plenty to sway the justices.

There are plenty of people who will just fine should the judge order the unnamed people to write or remove certain things on their social media account because they don’t like Black Lives Matter.

That, however, is an irrelevant and dangerous excuse to look the other way when the government overreaches. As I’ve written in the past, the power of the Constitution — the very underpinning of our freedom — comes from our willingness to extend it to people we may despise. That’s why we let Nazis march in Skokie. It’s why we declared that a rapist named Miranda has the right to an attorney. It’s why we let an anti-Semite say whatever he wanted to say in a Minneapolis newspaper.

Coincidentally, to the extent that Americans have freedom of speech, they can thank Minnesota’s occasionally misguided attempts to stifle it, as I wrote in this 2014 post.

In 1992, a case before the Supreme Court defined the difference between hateful acts of hateful speech when it overturned the conviction of a teenager for burning a cross on the lawn of an African American St. Paul family.

“Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics,” Justice Antonin Scalia wrote in his decision striking down a Saint Paul ordinance. “Those who wish to use ‘fighting words’ in connection with other ideas — to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality — are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”

Minneapolis, too, has a central role in the definition of the First Amendment In the ’30s, journalist Jay Near — an “anti-Catholic, anti-Semitic, anti-black and anti-labor” publisher of The Saturday Press in Minneapolis — contended a Jew was the biggest gangster in Minneapolis. The Minnesota Gag Law was used to make it a crime to publish or even work for a publication that was “malicious, scandalous and defamatory.” The Supreme Court overturned the law.

If we can defend the right to burn a cross in St. Paul, we can surely defend the right to post a message on Facebook, or to be free from being compelled by the government to post something on Twitter.