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Black Lives Matter vows MOA protest; judge weighs restraining order

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Demonstrators filled the rotunda
Demonstrators filled the Mall of America rotunda and chanted "black lives matter" to protest police brutality, Saturday, Dec. 20, 2014, in Bloomington, Minn.
Aaron Lavinsky | The Star Tribune via AP 2014

Updated 5 p.m. | Posted 9:06 a.m.

Black Lives Matter leaders left an afternoon court hearing Monday promising to go through with a Wednesday protest at the Mall of America despite the mall's legal attempts to stop it.

Hennepin County Judge Karen Janisch took no immediate action on the mall's request for a temporary restraining order seeking to block the protest, announced last week. 

Mall officials argue the shopping center is private property that bans large protests. But Black Lives Matter organizer Kandace Montgomery says the group isn't changing its Wednesday plans.

"The MOA is the coliseum of capitalism, the perfect symbol of how money and resources are misallocated in this state," Montgomery told reporters after the hearing.

"Millions of dollars are going to the Mall of America while equity funding continues to be cut, while we have some of the highest unemployment disparities across the entire country, while our schools continue to be defunded," she said.

The restraining order request proposes to block the demonstration and prohibit the protest organizers "from soliciting or encouraging others to engage in any demonstration on MOA Premises."

Die-in
Protesters staged a die-in at the Mall of America rotunda during the Black Lives Matter protest.
Jackson Forderer | For MPR News 2014

The filing drew an immediate rebuke from Minneapolis NAACP President Nekima Levy-Pounds, who called it unconstitutional and disturbing. 

"This is unprecedented, having a large corporation attempting to restrict freedom of speech and expression on the part of Black Lives Matter organizers by dictating what notices they have to put forward on social media and what notices they have to remove," Levy-Pounds said before the Monday afternoon court hearing.

Black Lives Matter organizer Miski Noor said protesters would not be deterred by the mall's attempts to stop the protest.

"This is yet another tactic of corporate America partnering with police to try to silence the people. We're going to continue forward and we're going to keep fighting for Jamar," Noor said, referring to Jamar Clark, a 24-year-old Minneapolis man shot to death by police on Nov. 15.

"We're just trying to get justice for Jamar, we had the 18-day occupation, and we're continuing to fight so that we can get an independent prosecutor in this case," Noor said. "There's definitely other things we're working on that are more deserving of our time than the mall trying to control what we say or do."

The proposed order follows another Facebook posting Friday by Black Lives Matter Minneapolis, showing a  letter from the Mall of America demanding that the group publicly cancel their planned protest. 

Black Lives Matter Minneapolis said the letter was delivered to the homes of four leaders by courier on Friday. 

Some of the same protest organizers faced charges for last year's protest at the mall, although those charges were later dismissed.

Last year's Black Lives Matter protest drew thousands of people to the mall's East Rotunda and resulted in dozens of arrests — as well as a nearly yearlong legal battle over charges against the protest's organizers.

The demonstration was aimed at calling attention to the death of Michael Brown, shot by a Ferguson, Mo., police officer. This year's protests are expected to focus on the death of Clark.

"All of our demonstrations have been peaceful and nonviolent, they do not need to be met with a hyper-militarized response," Levy-Pounds said. 

"I would be surprised if a court of law upholds the Mall of America's request that Black Lives Matter remove any and all postings from social media and that they affirmatively post that the event has been canceled or face jail time," Levy-Pounds said. "That is absolutely ludicrous."

The American Civil Liberties Union of Minnesota also said it was alarmed by the mall's request to the court.

"Organizing a protest on social media is protected by the First Amendment to the Constitution and should not be restrained," the ACLU said, adding, "The Mall of America is trying to intimidate free speech activities with this aggressive lawsuit."

First Amendment attorney Steve Aggergaard said previous court decisions have ruled that the Mall of America is private property, and not a public forum.

"The argument has been made that the mall is different, that it's essentially a public square, that it's main street, and the idea that it's been privatized doesn't matter, or perhaps shouldn't matter," Aggergaard said. "But the law is what it is. And the mall is within their rights to enforce that."

The mall is asking the judge to not only bar the protest organizers from social media posts, but requiring them to make posts, does bring up some First Amendment issues, Aggergaard said.

"What the private entity is doing is asking for essentially the machinery of the government to kick in, and not to side with the mall necessarily, but to step in and say that the power of the courts, the power of law enforcement, is to be invoked here to protect private property, and most notably to restrict or somehow manage online communication," Aggergaard said.  "And that is pretty remarkable."

Attorney Susan Gaertner, who filed the order on behalf of the Mall of America, said there are not a lot of laws that set precedent for how social media plays a role in situations like these. Gaertner wanted protest leaders to use social media to cancel the event, just as they did to advertise it.

"In an era where social media is so important and so effective, we don't really have a lot of case law," she said.

When asked about the protesters' plan, Gaertner said she's taking a wait and see approach.

"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."

MPR News reporter Tim Nelson contributed to this report.