Updated: Dec. 22, 7:30 a.m. | Posted: Dec. 21, 6:45 p.m.
A judge in Hennepin County is considering a restraining order aimed at stopping a protest at the Mall of America.
Attorneys for the mall and Black Lives Matter Minneapolis squared off for nearly 90 minutes in court on Monday after MOA asked a judge to have the group take down its invitation to a protest planned for Wednesday and put up a post saying it is canceled.
No matter the judge's decision, Black Lives Matter Minneapolis still plans to protest Wednesday at the Bloomington megamall.
"The people have a right to show up, we have a right to say what our message is, we have a right to speak out," said Miski Noor, an organizer with Black Lives Matter. "And us not showing up and us not speaking would be the mall winning, yet again, as corporations and police departments and the institutions collude to silence us, that's not going to happen."
Much of the discussion on Monday revolved around who exactly the case involved. Black Lives Matter Minneapolis isn't legally incorporated, and its protest posts on Facebook, Twitter and other social media don't name leadership or organizers. The judge noted that only two of the four people named in the case were even formally served with the paperwork, a key element of legal authority.
"Who are these people?" Judge Karen Janisch asked the attorneys in her court room. "That's the question? Who do I direct to do what?"
Attorney Susan Gaertner, the former Ramsey County attorney, said court rules gave people seeking to protect their property rights wide latitude to ask for judicial help, particularly when a plaintiff wasn't seeking an arrest or monetary damages.
She also said that the Minnesota Supreme Court had already held that demonstrations could be blocked at the Mall of America, despite its quasi-public status as a gathering place. She said the mall wasn't specifically trying to thwart the message Black Lives Matter wanted to bring to the mall, only the protest's location.
"This is not a place for public debate. This is not a place for public demonstrations," she argued. She told the judge that forcing the mall to accommodate Black Lives Matter would be "no more appropriate than it would be around my kitchen table or on someone's front porch."
But Jordan Kushner, the attorney representing Black Lives Matter Minneapolis, said the mall should be viewed as public space.
"So the problem is that they've appropriated the public forum where people used to go and congregate and demonstrate in the town square," Kushner said. "And now they've made the town square their own, they've got an amusement park, they got entertainment, they've got the rotunda. But they want to keep that private only for commercial purposes and for their own purposes."
Last year, more than 1,500 protesters — some say as many as 3,000 — showed up at the Mall of America for a Black Lives Matter protest. It was generally peaceful but more than two dozen people were arrested on charges of trespassing and unlawful assembly.
In a November ruling, Judge Peter Cahill said the mall should have asked for a restraining order prior to the protest.
Steven Aggergaard, a Minneapolis attorney who specializes in First Amendment issues, said mall officials are taking it a step further this time.
"On the one hand are the interests of a private property owner to enforce private property rights," he said. "But on the other hand, the mall was asking a judge to order organizers to take down posts and even to go beyond that, and to order the organizers to communicate that the protest was canceled."
Kushner said that proposal was most troubling aspect of what the mall was asking the court. He said there was a long legal precedent against compelling anyone to say anything.
"It's really overboard, to make someone publish things on social media. It's really oppressive and indicative of a totalitarian society," he told the judge. "They can't be ordered to be campaigners on behalf of the Mall of America to stop the demonstration."
He also argued that an order blocking the demonstration would violate a fundamental legal principle — that people had to be notified the court was taking action. He said several of the named plaintiffs had not been served, and couldn't be held accountable for an order they couldn't properly respond to.
Janisch expressed her reservations to both parties about the urgency of the matter, and that the protest was planned to start in less than 48 hours. She also expressed some skepticism about the court's jurisdiction in cases where the people involved may not have been provided with enough notice the court was acting.
She said she would weigh the matter and "issue an order as soon as I can," although she also noted that she was scheduled to start her vacation on Tuesday.
Members of Black Lives Matter, including one of those named in the suit, remained defiant.
"Hopefully, they will rule in our favor and we can move on with our lives," said Kandace Montgomery, a frequent spokesperson for Black Lives Matter Minneapolis. But she also made clear the group planned to proceed with the demonstration.
"We are looking for people we know and trust who are willing to risk arrest on the 23rd," she told supporters gathered around her just outside the courtroom door. "This is just another nuisance they're trying to put in our way."
Meanwhile, Gaertner would not say what happens next.
"We'll take this one step at a time," she said. "If Judge Janisch issues an order restraining the demonstration, and that order is violated, we'll deal with it."