Archived posting to the Leica Users Group, 2003/12/22

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Subject: Re: [Leica] Re: Inspired but arrested
From: Rolfe Tessem <rolfe@ldp.com>
Date: Mon, 22 Dec 2003 16:29:06 -0500
References: <200312221855.KAA03450@mejac.palo-alto.ca.us>

On Dec 22, 2003, at 1:55 PM, B.D. Colen wrote:

> Date: Mon, 22 Dec 2003 11:02:16 -0500
> From: "B. D. Colen" <bdcolen@earthlink.net>
> Subject: RE: [Leica] Re: Inspired but arrested
> Message-ID: <006801c3c8a4$f8beee40$6501a8c0@CCA4A5EF37E11E>
> References:
>
> That may indeed be true, Rolfe. But if I'm not mistaken courts have
> restricted soliciting in malls, handing out literature, etc. - and I
> hope that one of our attorneys would correct me if I'm wrong. And that
> mall owners have used their 'property rights' to enforce regulations
> against gatherings of teenagers in the malls.
>
> The law is indeed evolving, but that, unfortunately, makes it even more
> likely that one can be caught up in a very ugly, very messy, legal
> situation.
>
> B. D.
>
>

Certain courts have upheld restrictions on soliciting in malls, etc. 
But commercial solicitation is not a protected form of speech (or at 
the very least does not enjoy the same degree of protection as 
individual speech).  I think the trend is to enforce individual 
constitutional protections in public areas of malls. Again, I emphasize 
trend. This is far from a settled issue.

After all, we know that the mall owners are not allowed to discriminate 
on the basis of race, sex, etc. simply because the mall is privately 
owned. Does anybody seriously think that a mall owner can  restrict who 
I talk to or what we talk about in their mall? I am obviously not an 
attorney (nor do I play one on television) but I try to follow these 
types of cases because I am personally concerned about how the law is 
evolving in this area. Judges don't seem to like the idea of the mall 
owner benefiting from the "publicness" of the mall only when they 
choose to do so. It is sort of like trying to put the horse back in the 
barn after the barn door is open.

There is a parallel in copyright law; if for example, a company 
distributes a movie trailer or piece of artwork so widely and 
indiscriminately that the company loses control over who sees it, it 
will be very difficult for that company to later try to enforce 
copyright protection over that material.

Near my home we had a case last year where there was a small 
demonstration in a public area of a mall, the security guards got 
overzealous in breaking it up, and the mall owner is now settling the 
multi-million dollar lawsuits which resulted.

- --
Rolfe Tessem		|	Lucky Duck Productions, Inc.
rolfe@ldp.com		|	96 Morton Street
(212) 463-0029	|	New York, NY 10014

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