Unrest in Kingston
by Robert Miraldi

Joan Keefe, Jay Wenk and Annie Katz were huddled in small vestibule just steps away from Ulster County’s only military recruiting office that is tucked in a corner of the Kings Mall on Route 9W in the town of Ulster.  Last year at offices like this one the U.S. military recruited 180,540 fresh-faced American young people using methods and selling a war that many people  -- including Keefe, Wenk and Katz – do not like.

 But in October a judge had told these three members of the so-called “Kings Mall 7” that they could not stand near the recruiting office front door. In fact, they and others were not allowed inside the mall at all if they were going to protest. So they huddled in the vestibule on this Saturday, the coldest day of the new year, trying to decide how and where they could continue their two-year vigil against America’s military presence in the Mideast. “I am not even sure if we can stand in here and talk,” said Wenk, who is 80 and a veteran of World War II.

“Maybe,” said Keefe, who is 84 and also a WW II vet, “this button is not allowed. But I don’t really care. I have a right to be here.”  She was referring to a button on the lapel of her furry coat that read, “Support the Kings Mall 7. Protecting our Constitutional rights.”

With the temperature at 20 degrees, Wenk, perhaps worried about the lung damage he had suffered when he served in Germany, decided it was too cold for him. Katz and Keefe were staying.  Keefe is a short, energetic and blunt woman who has lived in Saugerties for 50 years, raising four children there. “The things recruiters say are not true,” she declares. Katz, 54, a graphic artist and self-described “aging hippie,” agrees, adding, “The military is seducing our children. It is immoral.”

So the protestors – later joined by six others – moved to an outside curb, angry about the restrictions that will be reviewed this month by the state’s appellate court. Indeed, this case raises serious new questions about whether the Kings Mall, a 32-store shopping center, and the military can immunize themselves from protest by falling back on the rights of private property. 

The mall’s Oklahoma owner had sought to ban protests back in August.  Seven of the mall’s stores asserted that business suffered on Saturdays when the protestors held signs and read names of the war dead. One storeowner disagreed in court papers and neither Modell’s nor Marshalls, the largest stores, submitted evidence.

Jay Wenk

But the judge felt that the presence of a “governmental element in what otherwise would be unarguably private property” turned the Kings Mall into a “public forum.” It was hardly a victory, however. Judge Vincent Bradley, who has since died, told the Kings Mall 7 (seven people are named in the lawsuit) they could only demonstrate on Saturdays from 12 to 2 p.m. and that they must stay outside in a corner of the parking lot.   “That,” argued Katz, “is like telling black persons they can only sit at the front of the bus for two hours a week.”

So when Wenk, Keefe and Katz huddled in the vestibule they might have been violating the judge’s orders. Would a storeowner call police?  After all, on two occasions Wenk and Keefe, the central players in this drama, have been arrested for trespassing, but each time the charges were dismissed because, as an Ulster County district attorney wrote, the case raises “compelling constitutional issues.”

Keefe was frustrated, angry and impatient when we talked in the hallway, steps away from signs that read “Are you Army strong?’  “The Few. The Proud. 1-800-Marines.”  “You and the Navy. Full speed Ahead.”  “On our team you develop your mind, your body and your spirit.”

“Last week,” she said, “I wandered down towards Marshalls (across the parking lot from the recruiting center) and I was carrying a sign. I realized I was out of the area where I was allowed. How ridiculous. People are dying. I can’t wait for some judge to decide where we can go. Someone has to do something. Can’t congress stop this?” And then she repeated, “People are dying.”

Seventeen Americans died in Iraq that weekend, in fact. One of the protestors held a sign reading:  Causalities: Iraquis: 47,657 Americans 3,025. The actual number of Iraquis dead is in dispute; many believe it is closer to 100,000.  But such public policy questions are not normally on the menu at an American shopping center. Behind Keefe in the vestibule blared the real purpose of malls: Mongolian Bar B Q. All you can eat buffet. $5.99.  It was lunchtime at the Panda Buffet. Around the corner at Modell’s, Randy Johnson’s Yankee jerseys were on sale because the pitcher had been traded.

Adjacent to the military recruiting office is Arturo’s Restaurant which has been the scene of numerous confrontations. But it was quiet this day as a young man with a short beard and wearing a T-shirt that said “ARMY” dished up the day’s $6.49 special: manicotti with soup or salad.

Indeed, part of the issue in the case of the Kings Mall 7  is how to define the modern American downtown -- the mall.  Traditionally in downtown areas with town squares citizens can gather to protest their government – or complain about whatever they like.  The highest form of First Amendment protection goes to speech in public places about governing matters.

But when it comes to malls (like Hudson Valley or Galleria in Dutchess County) the law is tricky.

http://www.freedomforum.org/templates/document.asp?documentID=14193

While malls often take on the character of public places by inviting people to shop, they remain mostly private.  A 1985 New York case -- Smith Haven Mall vs. SHAD Alliance --made this clear. But the court also said the private property claims might disappear if there was “significant government participation” at a mall. http://albany.bizjournals.com/albany/stories/2003/03/31/daily6.html

Wenk, Keefe and Katz insist they are at the mall mostly to speak with potential recruits. Lawyer Alan Sussman sees this as a key issue: the protestors have a message that is “contrary” to the government’s and they need to “debate the war or recruitment with people entering the recruitment office.”

Wenk says he enlisted in 1944 because movies and magazine articles made it look glamorous. Keefe says she enlisted with both her brothers because she wanted to go overseas and help. But that was a different war. “The military today simply does not give recruits reliable information,” Wenk says. Nonetheless, the mall insists in its legal papers the protestors “entered and remained for the purpose of engaging in political protests that were not authorized” by the mall.

So outside the protesters stood, with cold air billowing from their mouths, holding signs. One read, “Stop George Bush Now Before He Kills Thousands More People.”   I walked over to the nearby recruiting office to get a different view. A brochure on the Marines bragged: “We are proud to be America’s shining tip of the spear.” The Army offered “a chance for travel and adventure that is part of the Army package.” The Army did recruit 80,635 people last year.

Such a crossfire of opinions is in keeping with the First Amendment which was adopted to protect all points of view so citizens could decide the wisdom of government policy.  And here was a classic marketplace of ideas. But the Kings Mall wants to sell products, not ideas. The “sole purpose” of the Kings Mall 7, wrote Mall attorney Jon Simonson, “has been to engage in political activity and …disorderly conduct.” The Mall feels it has the right to stop such activity.

Of course, Wenk, Keefe and Katz adamantly deny they have been disruptive; their appeal asserts that no proof of business loss has been offered.  Simonson counters: “It is not possible to calculate how much business has been lost.”  Stephen Bergstein, a lawyer for four of the defendants, says that even if patrons have been made uncomfortable by the protests, it is a price the courts say must be paid in a society that embraces free speech.

To say the least, relations between the demonstrators and some of the mall’s storeowners have been testy and the exchanges unpleasant.  Simonson wrote: “Defendants’ conduct is obnoxious and should not be tolerated in our society.”  Wenk calls this “bullshit” and Keefe says it is “an out and out lie.”

The protests started two years ago when the demonstrators gathered across from the mall, on Route 9W, a public place where their protests are protected. But they soon gravitated to the small corridor that fronts the mall’s stores, standing by the recruiting office, talking to passersby and reading the names of dead soldiers. For a while they rang a gong each time they read a name (they stopped that at a judge’s suggestion). Some protestors prayed for the dead. Eventually, storeowners became angry at their Saturday protests, which they insisted hurt business. Police were called and Wenk and Keefe went to court – gladly actually because they wanted to air their grievances.

I was at the second hearing on December 14, 2005, at the town of Ulster courthouse when Wenk and Keefe faced trespass charges. It was a bitter cold day. yet one hour before the hearing the parking lot had filled with supporters.  CodePink4peace, a national women’s group; Women in Black, whose members can be seen silently protesting in Woodstock; and the Raging Grannies, wearing flowered hats and aprons and carrying canes – all had showed up for Wenk and Keefe. http://www.ulsterpublishing.com/index.cfm?fuseaction=article&articleID=358894

Wenk, a cabinetmaker by trade who wanted to be a music composer, is a slim man with a short gray beard.  He is remarkably fit for an 80-year-old and has written a book about biking in the Catskill Mountains. He strolled the parking lot, amazed.  When someone called him a hero, he said, “Hero schmero.” Wenk says he began his protests out of “anger and frustration and a sense of democracy. This war is illegal and immoral.”  He was arrested because “they hate what we are saying.”

Justice Marsha S. Weiss entered a packed courtroom. The average age of the onlookers seemed to be 70.  The case was quickly dismissed because the Mall gave no reason why the protestors had violated any laws. Applause broke out. Sussman was pleased. “The mall owners invite people onto their premises, and there has to be a reason to dis-invite them,” he told the press. “If it were because they're black…if it were disorderly conduct or interfering with business that would be illegal."  And so the Mall’s lawyers turned to a civil suit.  It was not a criminal question. http://www.davelippman.com/LawoftheMall.html

Simonson ‘s August lawsuit asked that the protestors be prevented from demonstrating because they were hurting business, disruptive, scaring patrons, and violating the mall’s rules.  The message was clear: malls are for buying things, not peddling ideas.

Judge Bradley disagreed. He wrote: “The presence of a government tenant at the Mall renders the property, as least for constitutional freedom of expression purposes, something less or different than purely ‘private” property.” and is more akin to “a public forum.”  Victory for the Kings Mall 7 – or so it seemed.

But then the judge put severe restrictions on the time and place they could protest, which both Sussman and Bergstein say oversteps both the law and the facts of the case. Wenk scoffs: “The constitution says we have the right, the responsibility to protest or support government actions. To demonstrate in front of government offices is who we are. The government is hiding behind private property rights.”

Simonson declined to tell me how he would respond to the assertions made by the Kings Mall 7’s lawyers in their appeal but he has until March 9 to file his answer to the appellate court.

And that brings us back to the vestibule and the protestors.

I left my house before noon on a Saturday to get one more look at the Kings Mall 7.  A dusting of snow covered the ground and it was colder than the previous week.  On Route 209 in Stone Ridge I saw 20 demonstrators waving anti-war placards near a firehouse. I remembered that thousands of marchers were expected in Washington, D.C. that day/

But when I pulled into the parking lot no one was at the Kings Mall. I wandered into the recruiting office where a young, pudgy ruddy-faced man was talking to a recruiter. http://usmilitary.about.com/od/joiningthemilitary/a/06recruiting.htm No demonstrators were around to offer him counter messages.

Maybe they were in Washington or maybe it was just too damn cold.  I began to leave when, with a Barnes and Noble sign looming in the background, I saw nearly 100 protestors lined up on Route 9W. The marchers yelled “Impeach,” while some sang hymns.  One sign I had seen a week earlier told the tale. The number of American dead, 3,025, had been crossed out. It now read 3,067.

Pizza and books and clothing were selling at the Kings Mall. And they were still dying in the Mideast.

(Rob Miraldi has taught journalism at SUNY New Paltz for 25 years.)

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