Black Lives Matter and the evolution of the First Amendment

Those who scored seats in Judge Karen Janisch's Hennepin County courtroom on Monday saw the First Amendment not only in action, but in evolution.

On one side was Susan Gaertner, the Mall of America's attorney, who asked the court not only to restrain a protest planned for Wednesday at the mall, but to order that online posts encouraging such a gathering be deleted and that organizers communicate the protest's cancellation via social media.

On the other side was attorney Jordan Kushner, who represented alleged would-be protesters but not Black Lives Matter as a group. He successfully explained that it would be unprecedented to regulate social media. But he struggled to overcome State vs. Wicklund, a case in which the Minnesota Supreme Court ruled some years ago that Mall of America protests are not constitutionally allowed.

Judge Janisch demonstrated that she was well aware of the precedent. However, she seemed equally concerned about who, exactly, she was being asked to restrain, given that Black Lives Matter is not a formal corporation but rather is a product of the very online media she was being asked to regulate.

So while the judge's order on Tuesday restrained three named potential protesters, Black Lives Matter as a group was not restrained, online posts were not removed and Wednesday's protest went forward, with demonstrators dispersing when ordered to do so by police.

But what a First Amendment mess.

Minnesota, of course, has seen its share of First Amendment messes over the years and has played a key role in the evolution of free-speech law. Monday's court hearing, Tuesday's court order and Wednesday's protest constitute three more pages of Minnesota First Amendment history.

Chapter One began in 1931 with Near vs. Minnesota, a case Kushner cited during Monday's hearing for the proposition that Janisch had no authority to regulate social-media posts. On this point the protest organizers won, and the Near case helped them do so.

At the time of Near, as today, police officers were under scrutiny. The case developed during the "Roaring '20s" when gambling, graft and gangsters proliferated in Minneapolis. The city's police chief was alleged to be on the take, and a newspaper called the Saturday Press reported those allegations, among others. As a result, Hennepin County Attorney Floyd B. Olson tried to shut down the rag as a "nuisance" under Minnesota law.

The Minnesota Supreme Court let him do it, but the U.S. Supreme Court did not, ruling 5-4 that Minnesota's "prior restraint" on "nuisance" newspapers violated federal constitutional law.

Near was a landmark that has been cited more than 1,200 times, most notably in 1971 when the U.S. Supreme Court refused to restrain newspapers from publishing sensitive details of the Vietnam War as contained in the "Pentagon Papers."

More First Amendment tales from Minnesota followed. In the 1970s, Hare Krishnas claimed that their First Amendment rights were being violated by a Minnesota State Fair regulation that prevented them from proselytizing across the fairgrounds. They lost.

In the 1980s, Amish in southeastern Minnesota claimed that their right to religious free expression was violated by a traffic law that required them to display garish orange triangles on the backs of their buggies. They won, but under the state Constitution.

The Wicklund case came in the 1990s, and in the 2000s, the U.S. Supreme Court issued an important opinion that Minnesota cannot restrict judicial candidates from announcing their views on controversial topics.

But Near vs. Minnesota remains the state's most-notable First Amendment case, and on Monday it had its reawakening in the very Hennepin County court where it began nearly nine decades ago.

Near stands for the proposition that a court generally cannot restrain expression before it has the chance to occur. Punish it after the fact? Yes. Prohibit it ahead of time? Generally not.

As Tuesday's court decision made clear, the proposition applies even when the expression at issue encourages illegal trespass. But the proposition does not apply to the trespass itself, even when its purpose is to engage in expression, as was the case at the mall on Wednesday.

Messy? Yes. The last word? No. The First Amendment's evolution continues in Minnesota.

Steven P. Aggergaard is a Minneapolis attorney.