Saturday, September 26, 2009

So Much for the 1st Amendment!

It would appear that the Constitution has been lost, forgotten or destroyed and that freedom of speech has been ended in Johnson City, Tennessee, my former home town.

It is indeed a sad situation when a business person can not sell their merchandise because of the complaints of a few individuals and the failure of Mall management to uphold the Constitution. Of course given my past experiences in that Mall it is doubtful that the management even understands or knows what is written in the Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It is time for Mall management to tell a customer who objects, sorry but this is the United States of America and the Constitution gives individuals the right expression and that includes our store and/or kiosk owners. No one is requiring you to purchase the merchandise just as no one force’s you to look at or purchase the merchandise of other stores (Victoria’s Secrets comes to mind given their displays) so just pass on by. I won’t be holding my breath since the almighty dollar takes place over liberty and freedom.

Those who read this blog and who live in Johnson City need to let the Mall management know that their actions have not gone unnoticed and that until the merchant is allowed to sell his product that customers have requested they will no longer be shopping there. The Holiday’s are approaching and Mall management will not be happy to hear such words.

The Mall is managed by Glimcher Realty Trust of Ohio. Here is a list (see bottom of blog post for list) of other Malls and properties that Glimcher manages. If they are located in your area, let them know that the Constitution of the United States is not dead and that the 1st Amendment is still pertinent regardless of what the current administration of this country and their blinded followers think, that you are not pleased with their actions and that you intend to take your business elsewhere.

Folks the only way we can stop foolishness such as this is to hit them in the pocket book.

No more business for "Nobama" salesman

By Brad Hicks
Press Staff Writer
bhicks@johnsoncitypress.com

Dan Fuchs said business was just starting to pick up at his kiosk in the Mall at Johnson City.

Fuchs’ business, the Graphic Edge, printed slogans and pictures on items such as coffee cups, bumper stickers and T-shirts. He said more than half of his business came from the sale of anti-Obama merchandise. Bumper stickers with slogans such as “SOS: Stop Obama’s Socialism,” “Nobama,” and “Chicago got the party, but the country got the hangover” were displayed around the small stand.

Now it appears Fuchs is out of business at the mall, but mall officials say this decision was not based upon political views.

Friday afternoon, Fuchs was handed a lease termination notice by mall officials and signed by Mall General Manager Tembra Aldridge. The letter states that the option to terminate the lease agreement is effective 11:59 p.m. today and that he must vacate the mall premises and remove his property before then.

Fuchs said he was given no reason for this termination and was shocked and upset. Thursday evening, Fuchs said mall officials met with him and told him to take down the anti-Obama items on display by closing time or face immediate eviction.

“I was upset about it, of course,” he said Friday prior to receiving the notice. “That’s my livelihood.”

Fuchs had been in business at the mall for around two months and hadn’t initially set out to create anti-Obama items. One day, he said a customer asked for an anti-Obama shirt to be printed. A few days later, he said another customer asked for another similar item.

The some of these items were put on display and most were completed upon customer request, Fuchs said. He said that around 60 percent of items being sold out of the kiosk was anti-Obama merchandise.

By Friday morning, Fuchs said these items had been take down.

Marsha Hammond, the mall’s marketing director, has a different take on that meeting. She said that Aldridge and Melinda Davis, the mall’s specialty leasing representative, suggested that Fuchs also display items in support of Obama. The mall had received several complaints from customers regarding the anti-Obama items, she said. Hammond also said that it was Fuchs’ decision to remove the items completely from display.

“That is not true,” Fuchs said. “I was given no choice. I was given, (Thursday) night at about 4:30, the option of taking it down or get out, receive an eviction at closing time.”

Fuchs said that while he never anticipated any, he was aware of customer complaints prior to Thursday’s meeting. Hammond said, and Fuchs confirmed, that several weeks prior to Thursday’s meeting, Davis came by the kiosk to suggest Fuchs display pro-Obama items which would allow him to continue to display anti-Obama items. Friday, prior to receiving the termination notice, Fuchs said he would comply with this suggestion.

The anti-Obama merchandise sold at the kiosk is not necessary his viewpoint, Fuchs said. He again said most were completed upon customer request and were displayed as work samples.

“I support his office,” he said “I might not like him, but I support his office.”

Fuchs also said that he would have printed anti-Republican items at customer request and has refused to print some vulgar items. He said that his stand wasn’t exclusive to the display of anti-Obama items, but bumper stickers with slogans such as “Support Our Troops” and “ETSU Pride” were also on display. Still, he said the anti-Obama items typically got a good response from mall patrons passing by.

“People would look at them and laugh or whatever, and I would always ask ‘what do you think about it? Do you approve?’ or some silly little remark,” he said. “And I would say that probably 95 percent were positive, only 5 percent were not.”

While Hammond said the mall is a private property and officials do not wish to see it used as a political forum, she said the mall does not conduct its business based on political views and that the termination of Fuchs’ lease is due to a matter between him and the mall.

Before he received the lease termination, Fuchs said his lease was set to expire Dec. 31 and that he planned to be around for the holiday season.

“I certainly hope I’m here to take care of the Christmas business,” he said.

Since receiving the notice, however, Fuchs said he now intends to continue to sell anti-Obama items via the Internet.

Malls managed by Glimcher

State

City

Property Name

AZ

Scottsdale

Scottsdale Quarter ***

CA

City of Industry

Puente Hills Mall **

CA

Stockton

Weberstown Mall

FL

Merritt Island

Merritt Square Mall

FL

Tampa

WestShore Plaza

KY

Ashland

Ashland Town Center

MN

Blaine

Northtown Mall

NC

Charlotte

Eastland Mall ***

NJ

Elizabeth

Jersey Gardens

OH

Dayton

Dayton Mall

OH

Columbus

Eastland Mall

OH

Newark (Heath)

Indian Mound Mall

OH

New Philadelphia

New Towne Mall

OH

Columbus

Polaris Fashion Place

OH

Lancaster

River Valley Mall

OH

Beavercreek (Dayton)

The Mall at Fairfield Commons

OK

Tulsa

Tulsa Promenade **

OR

Portland

Lloyd Center

PA

Harrisburg

Colonial Park Mall

TN

Johnson City

The Mall at Johnson City

WA

Auburn

SuperMall

WV

Vienna

Grand Central Mall

WV

Morgantown

Morgantown Mall

Community Centers

State

City

Property Name

OH

Gallipolis

Ohio River Plaza

OH

Columbus

Polaris Towne Center

WV

Morgantown

Morgantown Commons

15 comments:

Anonymous said...

What I know about mall management you could stuff into a thimble and have plenty of room left over for all the other things I don’t know. That said, I wonder if this is even a constitutional issue, since I do not think there is a “right to unrestricted commerce.” Were that not so, then I suppose it would be possible for Frederick’s of Hollywood to sue because the Simon Malls refused to lease to them.

The precedent would appear to include bar owners, sellers of pornography, and merchants of other such “undesirable” goods within proximity to schools, churches, and across from the courthouse. Most communities restrict such places; case law gives them the right to do so. I am not surprised, therefore, to learn a mall owner has the right to refuse to lease to ‘objectionable’ merchandise, or that the term might include ‘Øbama’ political stickers.

What I do think about, however, is balance. Why is an Øbama sticker offensive, but the filthy lyric found on gangster rap compact disks is not?

Jus' askin'

Mustang

Anonymous said...

Ticker, Down here in south Texas there is a large number of stores selling Mexican flags, banners and emblems. Part of that is our proximity to the border, and part due to our huge Hispanic population. I suspect there is not much objection to this, but there would be an outcry (including local "action" news) were anti-Mexican stuff displayed.

I tend to agree with Mustang, if the individual concerned wants to sell stuff like Nobama T-Shirts, he has to build his own mall. It's kinda like you have a constitutional right to post what you want, but your readers don't have the constitutional right to post what they want on YOUR blog. If they want that right, they have to get their own blog?

GM

Ticker said...

Since nothing he displayed falls under the exceptions of what constitutes free speech as per the US Supreme Court and the Constitution I would have to disagree with you assumptions.
The Constitution has set forth various exceptions to free speech and have been recognized in American law. These include obscenity, defamation, breach of the peace, incitement to crime, "fighting words," and sedition.
His product does not violate any of the exceptions.
As a point of Case Law I offer this as a defense of what some might wish to call his products defaming or defamation of character.
In 1990, Donald E. Wildmon, Executive Director of the American Family Association, published a pamphlet which include excerpts from the work of artist David Wojnarowicz in an exhibit, "Tongues of Flame." The artist sued Wildmon and the AFA for (among other things) defamation. Although the court agreed that "By presenting what are, standing alone, essentially pornographic images as plaintiff's works of art, without noting that the images are merely details from larger composite works, the pamphlet is libelous per se." However, as Wojnarowicz was considered a "public figure," he also had to show that Wildmon acted with reckless disregard for the truth. The court held that this higher standard had not been met. (For the text of this court decision, see Wojnarowicz v. American Family Association, 745 F.Supp. 130 [S.D.N.Y. 1990]).

Given that Obama is a "public figure and Mr. Fuch's art is a symbol of or descriptive of an expression of thought by either him or his clients the court would be hard pressed to find that there was any violation .
I frankly think it would make an excellent court case for freedom of expression based on the above case and several others which have all be found in favor of the individual expression his views.

It would not fall under the obscenity clause and this case sites such: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
To justify Offensive it would have to be proven that as shown by this case: (Fordyce v. Frohnmayer, 763 F.Supp. 654, 656 [D.D.C. 1991]) The court rejected the claim, especially as "plaintiffs do not even allege that they have either seen the exhibition or studied the catalogue . . . [and thus] have failed to show that they have endured any special burdens that justify their standing to sue as citizens." Id. But the court left open the possibility that the plaintiffs might have a claim if "they had to confront the exhibition daily, . . . the exhibition was visible in the course of their normal routine, or . . . their usual driving or walking routes took them through or past the exhibition." Id. In the last part of this which the court left open the individuals who made the complaint would have to meet these standards. I think it would be difficult to prove and I do not believe that the Mall Management would qualify under such since they were not the ones who made the complaint plus the fact that they leased the space without such exceptions being included in the lease.

GM those protesting the flags in the Mall in your area would be hard pressed to make a case and have the vendor thrown out of the Mall regardless of how offensive it may appear.

The same goes for Mr. Fuch's. The Mall management overstepped their bounds in this situation.

I am not an attorney, but make it a point to study the Constitution and try to understand what it says trough research and study.

Ticker said...

Mustang and GM. Unfortunately Malls can control to an extent the type of merchandise that is sold or displayed. However, in order to remain within the confines of the meaning of freedom of expression, since they leased to him knowing that he was a graphics company and printed a multitude of materials, they would have had to state the limitations of what he could or could not display.

Mustang the "filthy lyrics found on gangster rap according to the law of the land has been found to be within the rights of the artist, the record company and such to make and sell such. Grounds are no one forces you to buy or listen to such.

GM, posters on my blog DO have that right to post on my blog since I have not chosen to make it a moderated blog. However, I have the right to delete such if it contains any of the factors that have been found to be a violation of free speech/expression under the Constitution.
To be honest and forthright I would have to allow the post if it violated none of the laws.

PJ said...

Ticker,

We had a similar situation in the Charlotte area at the Concord Mills regional mall. A vendor who displayed some anti-Obama bumper stickers and other items was not able to renew his lease because "a shopper" found his material offensive, according to mall management. It's not the same company that runs the one in JC. The Concord Mall had to endure a week's worth of bad press and protestors and offered to back off if the vendor would back off. He's selling his merchandise on the Internet, now. If I were to shop at the Concord Mills Mall in the future, I would complain to their management about some of the disgusting merchandise that is sold at Spencer Gifts and displayed for the public to see who pass by their store. I'm not a prude, but I find expletives a lot more offensive that someone making a political statemets, whether it's about BHO or GWB. I saw BHO grocery/shopping bags in Wally-World last week for 9.95 with the same type of bag .99 at Harris-Teeter. I find 9.95 offensive and a rip off, but I don't have to buy it. I think I will complain to management about that they are ripping off shoppers. I had to chuckle because the bags are red - appropriate, huh?
PJ

Inspector Clouseau said...

This is a very complex issue from many perspectives.

The first question which has to be asked is if the purported conduct is being conducted on private or public property, and the extent to which those who manage, own, or control the property have the right to pick and choose the conduct of others on "their" property which they are willing to accept or condone.

I raised a very controversial issue in a blogcatalog.com discussion group some time ago, and the competing sides went crazy. The management of the service shut down the discussion, claiming that it was their right (pursuant to their written policy) to shut down "incendiary" discussions.

Let's say the shop owner sat in the middle of his church, in his regular pew, and started quietly whispering his positions under his breath about Obama during a pause in the service, not really interrupting anyone or being particularly loud.

He has a right to be there. He has a right to speak his mind. He has regularly paid his tithe. He's not interrupting the flow of traffic or otherwise interfering with the service. He's not yelling, not screaming, not using profanity. He's just a "distraction," and a distraction which the minister and perhaps some others might not feel conducive to the orderly conduct of the service.

I think that this is pretty complex stuff, and not capable of nice, simple, easy resolution while balancing the competing rights and interests.

Finally, if the shop owner had sold pro-Obama signs and merchandise, the management should apply the exact same principles.

Anonymous said...

Correct me if I'm wrong, but the Constitution is a shield against oppressive government, not mall owners.

Another way of saying mall owner is 'property owner.' Owners of malls have the same right to protect their interests and investments as each one of us has the right to protect our property interests.

Is it possible for a private company to violate civil rights? I suppose it is. That's why we have courts. If the vendor in this case believes that his civil rights were violated by the mall owner, he should sue. It is the only way he can gain 'relief,' even if it would be expensive and a lengthy process.

For the rest of us, e.g., the customers who shop at that mall, we have no right to sue the mall owner because we were not harmed. No harm, no foul.

Sam

Ticker said...

Sam, the constitution is a guard against any institution or group who would stop the individual from expression of their rights as set forth under the constitution. That includes Malls, Sam. They have NO right to infringe upon those rights whatsoever. Yes, the court is the place to address this grievance and yes it is a violation of the individuals civil rights which , Sam, fall under the 1st Amendment in this case. In my other answers I listed such cases that have been decided by the court which upheld the Constitution as it is written and was intended by the writers of such document.
Actually the only part of the 1st amendment that is directly addressed to the Government is the freedom of speech, not the freedom of expression. A fine line oft times but never the less a fine line. In this case of Mr. Fuch's his freedom of expression was violated. Oft times we co-mingle the two as being the same. Most individuals who know and understand the constitution can differentiate the meaning . Those who can't I suppose I must continue to explain the difference so that I can continue to use both in the same topic and folks will understand.
As far as those mentioned in one of your last paragraphs, customers not having the right to sue the mall owner, you understanding is incorrect. Yes they may sue BUT they must prove in court that they have endured the special burdens that justify their standing as was decided in the (Fordyce v. Frohnmayer, 763 F.Supp. 654, 656 [D.D.C. 1991]) and other cases. (See my first reply on this site)

Thank you for your response and I hope that you will visit again. If you wish to discuss this more in depth my e mail address is included in my profile. If you wish to offer futher rebuttal to this post then feel free to do so. I will enjoy the opportunity to educate on subject of the Constitution

Inspector Clouseau said...

By the way, much of the Constitution ensures the rights of the individual to be protected against some form of STATE ACTION or governmental action, not individual action.

That was the historical basis for the formation of our nation. It was the conduct of King George and his cronies which prompted most of the thinking underlying the document.

Individual action against other individuals is covered by a patchwork of governing documents, and is usually left to civil actions which are not Constitutionally based. More criminal statutes ARE constitutionally based, because of the deprivation of freedom, which was a big issue during King George's time.

All of this explains the importance of the private versus public distinction.

Graphic said...

“We thank all the viewers, readers and listeners for your ongoing support. Your responses, emails and telephone calls have been overwhelming.”

Graphic Edge has reopened online http://www.graphicedgeonline.com , and a portion of the proceeds from sales will go to our legal fund to help in our fight against our wrongful eviction from the Mall at Johnson City.

The website will be expanding and evolving over the next several weeks. Please keep checking back, as we will be adding new merchandise and special offers.

For those who wish to have a custom order, please contact us by email at graphicedgeonline@gmail.com

Thanks again, Team Graphic Edge

Ticker said...

Inspector, read the short version of the case law that I presented. In regard to your argument the case in point says differently. It is not always the government who violates our rights.

Ticker said...

Graphic, '
Thanks for dropping by and commenting. I have visited your site and encourage others to do so as well.
Stand tall.

Ticker

Inspector Clouseau said...

You are absolutely correct Ticker. I am not disputing your analysis. I was making a general comment about the assertion by many that certain rights have a Constitutional basis, and suggest broad application, when each provision must be examined separately to determine the threat to be protected against.

Always On Watch said...

Johnson City, Tennessee?

I used to know it well.

My mother hailed from the Knoxville area (Lenoir City), and we used to stop overnight in Johnson City when we visiting relatives in Chattanooga.

Since when did Johnson City become so politically correct?

Ticker said...

AOW Since ETSU turned so liberal.

When I was there,(71) liberals were not welcomed. ONe jerk [professor) burned a flag on the steps of the Admin bldg. in protest of the Vietnam war. A few days later he was invited to leave the country and return to Central America where he came from or else. A week later he was gone.

Now the sob would be praised as a hero.

They went so far left they replaced football with soccer which they can't play in the halfasstro dome.