Monday, November 29, 2004

Soliciting Nothing

It's a good thing that John Ashcroft fixed that pesky terrorism problem so that police now have time to arrest four people for soliciting nothing.

As it happens, this story comes from my home town. A friend of mine, Hydro, forwarded me an email from Anna White, one of the arrestees. Anna tells her story as follows (I've edited the email, but its still pretty long... sorry):
For the past five or so years, we have marked Buy Nothing Day with a trip to our local shopping mecca, Christiana Mall. Instead of shopping lists and credit cards, we bring humor, ideas, and theatre. Early on we dressed up as Santa Clause and his elves, wearing signs like "More Joy, Less Stuff!" "Santa needs a Break" and "Unplug the Christmas Machine" and carrying a sack of alternative gift ideas (our Santa was once kicked out of the mall for "impersonating Santa Claus"). Two years ago, we decided it was time for a new act. And thus, the product NOTHING was born.

The act was simple. We dressed up as marketers for the product NOTHING. We wore black pants and white t-shirts with the slogan "NOTHING What you've been looking for!" on the front and "Ask me about NOTHING" on the back. Key to costumes were big shopping bags labeled "NOTHING" and "FREE SAMPLES". To top off the costume, we wore the season-appropriate Santa hats.


While shoppers have been overwhelmingly positive toward our little act, mall management has not. Each year, very soon after entering the mall, security guards begin to trail us. Usually after 10-15 minutes they surround us and try to make us leave, at which point we argue that we are not violating the law or any of their policies. They in turn accuse us of "soliciting" to which we reply that we're "soliciting nothing." This never fails to elicit a detailed discourse over the definition of soliciting.


This year, just like others, a security guard began following us as we made our way down the crowded mall corridor from JCPenny's towards Lord & Taylor giving away samples of NOTHING. In front of Lord & Taylor, a posse of five or so security guards were waiting for us. They asked us what we were doing. We explained that we were promoting NOTHING. They told us that we were soliciting "something" and would have to leave the mall premises. We asked the head of the mall's security to clarify exactly what we were soliciting, to which he replied, "You are soliciting a reaction from people." (One year, during a different Buy Nothing Action, we were accused of no less than "soliciting ideas.")

The standard conversation about soliciting ensued and the state police were once again called in to help deal with the situation. This year, a small army of mall security and state police told us that we were not allowed to even carry the shopping bags that said "FREE SAMPLES NOTHING" on them or we would be arrested. Only the t-shirts and Santa hats were permissible. While we felt that the order was completely ridiculous, we also had not come to the mall that day to be arrested, so we agreed to take the bags out of the mall. Terri Maurer-Carter, who had come with us to shoot footage for a local public access television station was told that she was not allowed to have a videocamera in the mall and would be arrested as well if she did not leave.


The three of us headed off to our car, with Terri and another friend trailing behind. Just as we were walking through the parking lot in front of one of entrances to JCPenny's (but still far from our car), a police van swerved around in front of us and another in back of us. We were surrounded by policemen who told us we were under arrest for failing to obey their orders to leave the mall. We tried to explain that that was what we were trying to do, but they were already putting metal handcuffs on us and warning us not to resist arrest. At the same time, our friend with the video camera, was being arrested by another set of police officers.

As we were being arrested, we shouted out to mall patrons that we were being arrested for promoting NOTHING and loudly decried the lack of freedom of speech at the mall. As the police drove us to the other side of the mall to be processed, our driver informed us that we needed to study freedom of speech laws a bit more, because "they don't apply on private property."


The police took Polaroid mug shots of each of us, complete with our Santa hats and NOTHING t-shirts. We were told we were being charged with "criminal trespassing" and given an arraignment date of January 15, 2005. After being fingerprinted, processed, and given a document banning us from the mall for a period of six months, we were told we could leave. We asked how we could get to our cars without violating mall rules once again. The police actually instructed us to walk through the mall, "FREE SAMPLES NOTHING" bags and all, to get to the mall entrance close to our car, basically the same exact thing that we had been doing when they had arrested us. But whatever.


Our small action and the drastic response to it raises a variety of important questions and issues, such as: What is so very dangerous about a humorous promotion of purchasing NOTHING? In an era of declining public spaces and the rise of malls as the new "town centers" (and many actually naming themselves such), should not "freedom of speech" extend to these quasi-public commercial spaces? Why are taxpayer-funded state police protecting private commercial interests from citizens' free speech? How much longer can the devastating environmental and social impact of voracious American-style consumerism be ignored?

Personally, I have mixed feelings about the merits of "Buy Nothing Day," but for me it's a free speech issue. Some States, including New Jersey and Pennsylvania (both of which are only a short drive from the Christiana Mall) have ruled that malls are the modern equivalent of a public square and ruled that rights to free speech must be respected in shopping centers that are open to the general public. Delaware, as far as I can tell, has not. (check out the links under the heading "Rights to Petition in Private Malls and Quasi-Public Places" for more information) Even though the Delaware Supreme Court has not ruled whether free speech exists in private shopping malls, we can still complain about the treatment of the White sisters by the Christiana Mall.

The Wilmington News Journal (the local Delaware newspaper) also picked up the story of Anna and her sisters. Letters to the editor concerning the arrest can be submitted online here (scroll down).