The Black Lives Matter protests in the Twin Cities have shined a light not only on the issues the protesters are trying to raise but about the constitutional and legal minutia of free speech and the protests themselves.

When the Mall of America learned protests were planned there Wednesday, the mall operators went to court and asked a judge to confirm the mall was private property and the mall could prohibit a protest. That issue is a simple one. Judge Karen Janisch made clear that the mall, as private property, could prohibit protests and police could arrest and charge those who don’t leave when asked. The U.S. Supreme Court long ago confirmed that view. Protesters, even when they greatly disrupt things, have always been given wide latitude to protest and commit civil disobedience in public spaces, such as sidewalks, parks or near public buildings. But that right understandably is restricted when it comes to private property.

But the case before Janisch was much more nuanced that just the private property question. The mall also asked that the judge order Black Lives leaders to remove social media posts promoting the protest and to order they post messages saying the protest was canceled.

Judge Janisch wisely tip-toed through that legal mine field. She did order that three named protest leaders not set foot on the mall property during the scheduled protest. But she refused to order anyone not to post things on social media about the protest.

She was following a long history in the country of not allowing for “prior restraint” of free speech. Ironically, Minnesota was one of the early test cases in the question of prior restraint. In 1931 in Near vs. Minnesota, the court ruled that the government could not restrain a small Minneapolis newspaper from publishing exposes against public officials.

The most famous prior restraint case came to the U.S. Supreme Court in 1971 when the Nixon administration tried to prevent The New York Times and Washington Post from printing excerpts from a top secret file on the Vietnam War. The government argued, in part, that the stories were based on information gotten illegally and that it could harm national security. But in the so-called Pentagon Papers case, the court ruled that the government could not use prior restraint and prevent the free speech rights of the newspapers, even if what they publish could later be grounds for prosecution.

In the Mall of America case, Janisch ensured that free speech can’t be restrained in advance, even if what the protest organizers were promoting — trespassing on private property — was illegal and could later be prosecuted. As importantly, her ruling indicated that protection against prior restraint isn’t just for the media — which have special constitutional protection in the First Amendment — but also carries over to people’s free speech rights on social media.

Some may completely disagree with the Black Lives protests and their message. That’s fine. What’s important is that everyone appreciate that the Constitution and law jealously protects free speech.

— Mankato Free Press, Dec. 26