Flash Mob Protests

Flash Mob Protests
by Sue Basko

Today, some protests are called Flash Mobs.  Decades ago, these were called “street theater.”  This is when a group of protesters assembles quickly in a location, does some form of a quick protest, and leaves. Flash mob protests, in most cases, do no property damage or personal injury.

Flash mobs are speedy:  The idea of flash mob protest is to be in and out quickly before Security Guards or police arrive.  Flash in, flash out,  a flash mob does not stick around.   A flash mob is supposed to be in and out in under 4 - 6 minutes or so, and then make a speedy and undetected getaway.  That’s what makes it a flash mob, not a stick-around mob. 

Many flash mob protests are illegal, as explained below.  

How to Conduct a Legal Flash Mob:  A flash mob protest may possibly be LEGAL if:  1) it takes place on the public way, such as on the public sidewalk or publicly-owned plaza and does not take place on any privately-owned property;  2) if it does not alarm people, such as if it does not involve running, shouting, or wearing masks; and 3) if it does not break any other laws, such as stopping or interfering with traffic, blocking a sidewalk or entrance to a building, damaging property, or making noise against a noise ordinance.  This means, the flash mob will not involve running, shouting, wearing masks, pretending to be dying or dead, throwing anything, using fake blood, vandalizing or  any other form of property damage, or making loud or startling noises. 

What is Left that's Legal:  Showing up on the public way to sing, stand still, meditate, move in slo-mo, or do a typical, but unexpected protest.   Putting on a singing and music flash mob protest is usually very effective because it engages people in a good way and makes them happy to hear your message.  If this does not sound like your cup of tea, you are probably planning an illegal flash mob, in which case you should read on about trespassing and disorderly conduct.

Audience Reaction:  Usually the reaction to a flash mob protest will be one of these: a) fear, which is not good and often is illegal as “disorderly conduct,” such as under the Illinois law (below), which makes it illegal to “alarm” or “disturb” people and cause a breach of the peace;  b) smiling and curious, which means they are not afraid and may be receptive to your message;  c) puzzlement, which means they find your little protest show to be weird or confusing;  d) they do not even notice, which is often the case on big city streets where there’s already a lot of people doing weird and confusing things.  Keep in mind that even if you think people should be happy to receive your message, you may still be trespassing or engaging in disorderly conduct, as explained below. 

Trespassing:  If a flash mob protest is conducted on private property (such as in a shopping mall, store, privately-owned plaza, or train station) or in restricted-activity public locations (such as airports), it is probably illegal as trespassing.  If a privately-owned place is open to the public, the invitation to the public is usually for the intended purposes of the place.  For example, if it is a shopping mall, the invitation to the public is for shopping, eating at the food court, or watching cultural events hosted by the stores or management.  If it is a train station, the purposes are usually to buy tickets, catch a train, or accompany someone to a train.  Many such places have little signs warning what uses are allowed and that others are trespassing.

Free Speech Rights in Shopping Malls:  In most of the nation, there are no First Amendment rights to peaceable assembly on private property, such as in a shopping mall.  In California and New Jersey, there are some limited free speech rights in a private shopping mall. These rights are not First Amendment rights, because they do not arise out of the U.S. Constitution.  In California, these rights arise out of the California State Constitution, and are constantly evolving or being limited by the California courts.  In practice, these rights are really quite limited.     In California, there may be limited rights to pass out leaflets or to picket in a private shopping mall.   Following one court case, the rights do not apply to a big box store, such as Walmart or Best Buy,  although that is open to debate.  The interpretations of the California State Constitutional rights are subject to the exact facts in the cases that were decided, and it is not likely those same exact facts apply to any other situation.  Many California shopping malls now have their own rules about the time, place, and manner of such protests and sometimes require applications and issue permits.  However, the idea of applying to shopping mall managment for a permit to conduct a flash mob protest in a California shopping mall  is antithetical to the idea of a flash mob, which is to surprise.  

Disorderly Conduct:  If the flash mob protest is conducted on private property (such as a shopping mall, store, train station, or privately-owned plaza) or on public property (such as a publicly-owned sidewalk), it might be illegal as disorderly conduct

Look at the laws of your state and city.  For example, one section in the Illinois Penal Code, Disorderly Conduct, is a sort of catch-all category:  

Illinois Penal Code Section 720 ILCS 5/26 – 1 (a) (1) A person commits disorderly conduct when he knowingly:   (1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.

What that law means is that if the act alarms or disturbs another and causes a “breach of the peace,” which means a public disturbance, it is a violation of the law called disorderly conduct, which under Illinois law, may be a misdemeanor (less serious crime) or a felony (more serious crime).  Generally, this means that the alarming or disturbing act must take place where there is a group of people who are affected.  That might be a shopping mall, store, sidewalk, park, plaza, or other such place.   If the only person you have disturbed is a police officer, that is probably not a breach of the peace.  However, you might still be arrested and left to prove such things in Court.

If a flash mob protest involves running, shouting, or wearing masks, it will almost surely alarm or disturb people and cause a breach of the peace.

A City municipal code may also have laws that apply to a flash mob protest. For example, Chicago Municipal Code has detailed Disorderly Conduct section.  Many other cities have similar provisions, though they may be scattered about the law in different sections. Chicago Municipal Code Disorderly Conduct Ordinance states:

8-4-010 Disorderly conduct.

A person commits disorderly conduct when he knowingly:

(a) Does any act in such unreasonable manner as to provoke, make or aid in making a breach of peace; or

(b) Does or makes any unreasonable or offensive act, utterance, gesture or display which, under the circumstances, creates a clear and present danger of a breach of peace or imminent threat of violence; or

(c) Refuses or fails to cease and desist any peaceful conduct or activity likely to produce a breach of peace where there is an imminent threat of violence, and where the police have made all reasonable efforts to protect the otherwise peaceful conduct and activity, and have requested that said conduct and activity be stopped and explained the request if there be time; or

(d) Fails to obey a lawful order of dispersal by a person known by him to be a peace officer under circumstances where three or more persons are committing acts of disorderly conduct in the immediate vicinity, which acts are likely to cause substantial harm or serious inconvenience, annoyance or alarm; or

(e) Assembles with three or more persons for the purpose of using force or violence to disturb the public peace; or

(f) Remains in the public way in a manner that blocks customer access to a commercial establishment, after being asked to clear the entrance by the person in charge of such establishment.

(g) Appears in any public place manifestly under the influence of alcohol, narcotics or other drug, not therapeutically administered, to the degree that he may endanger himself or other persons or property, or annoy persons in his vicinity; or

(h) Carries in a threatening or menacing manner, without authority of law, any pistol, revolver, dagger, razor, dangerous knife, stiletto, knuckles, slingshot, an object containing noxious or deleterious liquid, gas or substance or other dangerous weapon, or conceals said weapon on or about the person or vehicle; or

(i) Pickets or demonstrates on a public way within 150 feet of any primary or secondary school building while the school is in session and one-half hour before the school is in session and one-half hour after the school session has been concluded, provided that this subsection does not prohibit the peaceful picketing of any school involved in a labor dispute; or

(j) Pickets or demonstrates on a public way within 150 feet of any church, temple, synagogue or other place of worship while services are being conducted and one-half hour before services are to be conducted and one-half hour after services have been concluded, provided that this subsection does not prohibit the peaceful picketing of any church, temple, synagogue or other place of worship involved in a labor dispute.

(k) Either: (1) knowingly approaches another person within eight feet of such person, unless such other person consents, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person in the public way within a radius of 50 feet from any entrance door to a hospital, medical clinic or healthcare facility, or (2) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person entering or leaving any hospital, medical clinic or healthcare facility.

A person convicted of disorderly conduct shall be fined not more than $500.00 for each offense.

Masks:  The famous mask of  Guy Fawkes and V is for Vendetta has been adopted by Anonymous and anyone cool, really.  The mask is the 2011 equivalent of the 1969 hippie beads.  However, some states or municipalities have laws against wearing masks in public.    New York has a law prohibiting two or more people gathered wearing masks, unless they are holding a masquerade party.  Lots of mask-wearers have been arrested at the Occupy Wall Street protests in New York.  Check local laws.  

Masks, Aggravated Assault.  Some places have laws that turn an assault into an aggravated assault if the assailant is wearing a mask or something that conceals identity.   "Assault" is a catch-all category that Illinois law defines as "he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery." "Battery" involves when someone has been physically touched/ harmed, such as by a person or an object.   Illinois law lists many acts that turn an assault into an aggravated assault. Included among these is wearing a mask.  In other words, if you scare someone into thinking they may be physically harmed, while you are wearing a mask, it may be aggravated assault in some states. 

Illinois Penal Code:  720 ILCS 5/122. Sec. 122. Aggravated assault. (4) Wears a hood, robe, or mask to conceal his or her identity.

Other Kinds of Flash Mobs.

Fun Song and Dance Flash Mobs.  
The term "flash mob" usually does not mean a protest, but instead means a group of people who assemble in a place where the public gathers to quickly perform a song or dance.  The group disperses.  Favorite places to conduct a singing or dancing flash mob are food courts, outdoor plazas, and large shopping mall courts.  Often, such a flash mob is conducted with the consent of the place's management.  It may still appear spontaneous to the surprised onlookers.  Other times, especially if it is a small group of performers, they just proceed. If these flash mobs take place on private property, they also are usually illegal as trespassing.  That’s why “flash” is part of flash mob.  Flash in, do the song and dance, flash out, disappear. 

Flash Mob Robberies.
In Chicago and some other major cities, there has been a rash of group robberies that have been called “flash mobs.”   Texting, twitter, and facebook are used to gather a group of people, usually inner-city teens, to an upscale location where they will conduct their attack or robbery.  The group then attacks victims on the street or in a park.  Sometimes, the flash mob robbers run  into a store and steal things and run out.  Chicago police have urged the public to call these incidents “multi-offender incidents,” but most everyone, including the police, still calls them flash mobs.   

Flash mob protest groups may be stopped or treated more harshly because of confusion with these flash mob robbery groups.   In cities where there have been flash mob robberies, it is very risky to conduct any sort of flash mob protest.  The risk may be legal, such as arrest or citation.  More dangerously for the protesters,  the risk may be physical because people, including security or store workers or customers, may be startled and react in self-defense against what they presume to be a criminal mob.   Today, anyone engaging in a startling or weird  flash mob protest inside a store or other private place is risking not just arrest, but also their own life or safety.