Does the First Amendment Cover Your Right to Wear a "F*ck Cancer" Shirt in a Mall?

Two girls were kicked out of the King of Prussia Mall for wearing hats that said "F*ck Cancer." They were initially confronted by security to take off the hats and were subsequently removed after refusing. The sisters, Zakia and Tasha Clark, were making a statement following the death of their mother who had been battling cancer for years. Even with the awareness of the Clark sister's background, mall manager Robert Hart stated that the mall is a family environment that "does not tolerate profanity."

Uproar over the apparent freedom of expression and First Amendment rights violation that Clark sisters seem to have become victim to has led to the question of whether or not the removal was just. Ever since the existence of the First Amendment, questions have always risen about the staying power of those rights. In this case, what is the precedent for freedom of speech in a privately owned establishment? Do individuals reserve the right to remove people from their business for inappropriate attire citing private property rights?

One of the biggest Supreme Court cases regarding the matter in a public setting was Tinker V. Des Monies Independent Community School District in 1969. The case involved Iowa residents wearing black armbands to protest the Vietnam War. After the school suspended the students for violating the school's policy, the case was brought to the Supreme Court wherein which the court famously released the statement "It can hardly be argued that student shed their constitutional rights at the schoolhouse gate." However, the court has recognized a dichotomy between the upholding of the First Amendment in the public versus the private sector. In the case Hudgens v. NLRB, the court ruled that a private shopping mall is not the functional equivalent of a town and therefore is not subject to the First Amendment. However in the case of State v. Schmid in the State of New Jersey, the ruling stated since mall owners "have intentionally transformed their property into a public market" they cannot deny a person individual rights. Specifically in California, the case of Fashion Valley Mall v NLRB (2008) decided that Union workers were allowed to distribute leaflets on private property that was directly against the mall's business interests.

Pennsylvania's legislature allows the words of mall manager Robert Hart to hold in a court of law. Although the clash between First Amendment and private property rights may seem trivial in the case of the Clark sisters, the legal precedent established by the government backs Hart's decision to turn away the Clarks. The case of the sisters is special because it involves two people making a statement against a terrible disease in memory of their fallen mother. However, the legal precedent is clear, though there is still a need for the Supreme Court to clarify the priority and co-existence between private property and First Amendment rights in the United States. 

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John Mathew

Hello, I'm a 2nd year at the University of Virginia studying politics and Economics. I love discussing policy and developmental economics with just about anyone with an opinion on the subject. Apart from academic interests, you can ask me anything about basketball (especially the NY Knicks!), running, and super smash brothers, I love them all. Feel free to contact me with any questions about my work!

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