Policing gangsta fashion

For its part, the Union Station management team claims in a recent press release that the policy is enforced without regard to "age, race, or economic standing." They stop anyone -- black, white, Asian, Latino, or famous musician -- who violates the dress code, which the mall operators say was adopted after a security consultation with the St. Louis Police Department and the FBI. So far, said mall spokesperson Jennifer Jones, the code has resulted in an 11 percent increase in retail sales.

But Sheffield believes that whatever gains have been made by Union Station have come at the cost of its African-American customers. "The overall issue is that when you have urban gentrification, it often takes the form of ethnic cleansing," he says. "They want to homogenize the space so that white upper-class patrons feel comfortable, by getting rid of the African-American patrons who frequented their businesses when times were bad."

Whether malls are private or "quasi private-public" entities is the focus of much debate. In 1972, the Supreme Court ruled in Lloyd vs. Tanner that shopping centers were considered private entities, and could therefore limit speech activities on their premises. But in a case eight years later, the court ruled that states could grant greater free-speech rights than those in the Constitution. The Supreme Court has not since ruled on a case that would overturn Lloyd vs. Tanner; but many state lawsuits over the past few years have attempted -- sometimes successfully -- to redefine shopping malls and restaurants as public spaces governed by constitutional law.

Denise Lieberman, legal director for the Missouri ACLU (which has not yet taken up the Union Station case), says there is an argument to be made that malls are the modern-day equivalent of town squares -- places where all members of the community can gather. That argument may be bolstered by the fact that malls often advertise themselves as public spaces where the whole community can shop, eat and be entertained.

According to Lieberman and others at the ACLU, the presence of government offices -- like a city police substation, or a post office -- or the use of public funds for infrastructure in the building of a mall, also leaves shopping malls open to lawsuits alleging that they fail to grant patrons the right to free speech.

In fact, in 1998, the Missouri ACLU successfully secured a $40,000 settlement for an African-American teenager who claimed to have been illegally detained for more than two hours by security staff at the Northwest Plaza Shopping Center for violating an unwritten dress code by wearing a bandana around his leg. As part of the settlement, the mall also agreed to dismiss charges against 19 other shoppers who had been detained for dress code violations.

But other state courts have ruled that shopping malls are under no obligation to uphold free speech. The Minnesota Supreme Court upheld the Mall of America's right to limit the speech of animal rights protesters this March, deeming the use of government money to build the mall's infrastructure to be "irrelevant."

Many more similar cases are pending. In New Mexico, the SWOP (Southwest Organizing Project) and the ACLU have filed a suit against three local malls, seeking to have dress codes abolished and to secure the right to picket and leaflet on mall property. These groups argue that the mall, which rents space to government agencies for public services such as voting booths and motor vehicle department offices, is a public entity.

It now appears that the NAN coalition will prepare a similar case against the Union Station Mall. Sheffield says that in their lawsuit they will argue that the Union Station Mall has received government funds but has failed to protect the First Amendment rights of its patrons.

But even private entities are not allowed to discriminate against patrons on the basis of race, and any group that can prove that a private entity is practicing systematic racial discrimination is likely to win in court, regardless of the company's status as a public or private entity.

One such case is pending against Dick Clark's Restaurants Inc., alleging that the management of one restaurant, located in a Philadelphia mall, attempted to get rid of African-American clientele (whom management allegedly referred to as the "Norristown element") by firing black security guards, banning hip-hop music, raising drink prices, and enforcing a dress code -- no baseball caps, football jerseys or Timberland boots -- that prohibited fashions popular with local African-American youth.

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