Is That Legal – Christmas Flash Mobs

Coventry Carolers by moonlightbulb from Flickr

Coventry Carolers by moonlightbulb from Flickr

It’s the holiday season and with it comes a usual slew of holiday inspired flash mobs. I’ve seen videos this year of groups of bell ringers standing outside stores and carolers in shopping malls. These groups seem to have the best of intentions, but that doesn’t mean that what they’re doing is permissible.

So When is a Group probably OK?
If a group is on public property (i.e. a public sidewalk or park), not obstructing a thoroughfare or blocking the public’s access to businesses, and not making so much noise that they’re disturbing the peace or violating the city’s noise ordinance, they’re probably ok. Most flash mobs don’t last very long so by the time a scrooge complains to the police, the group will have dispersed before they show up.

'Tis the Season . . . for Shopping by Vince Alongi from Flickr

‘Tis the Season . . . for Shopping by Vince Alongi from Flickr

What about Malls?
Shopping malls are private property, including open air malls. The mall is open to the public to shop; however, they get to decide what other activities get to occur at their properties. When patrons are watching a flash mob, they’re not shopping. Some owners don’t like that. I think some malls don’t want to worry about drawing the line between permissible performances and impermissible ones so they don’t allow any of them in the mall.

Scottsdale Fashion Square has put all flash mob groups on notice that flash mobs are not allowed on their property and that we’ll be arrested for trespassing if we do a flash mob there. They have real police officers on site so that is a threat they can easily carry out. A group did a dance there in 2010 and they were stopped by police and banned from the mall for a year.

What else should you know about Flash Mobs in Malls?
Every mall has a set of rules, but they can be hard to find. They might be on an obscure wall or on the mall’s website. When Improv AZ was stopped by mall cops during the Coroner Prank #2, they gave us a list of rules on cards when they banned us from the mall for 3 months. I didn’t see the rules anywhere in the mall and I couldn’t find them on their website. It might be hard to figure out what the rules are and asking for them may arouse suspicion.

There was one Christmas flash mob in a mall that turned into a safety hazard in 2010. So many people showed up to participate in the singing of Handel’s “Hallelujah Chorus” that there was fears that the floor would buckle. Malls also have limits on capacity set by the fire marshall that you can’t violate with your flash mob.

Some malls don’t allow videotaping, which is a common component of doing flash mobs. There’s a possibility that what you’re doing in the mall is permissible but you can’t tape it. Given that when a flash mob starts, a bunch of people are going to whip out their phones and start taping it, so the chances that a mall cop will stop you versus an unsuspecting audience member is pretty low.

Are there Copyright Issues with Singing Christmas Carols in Public?
It depends. Some holiday songs may not be in the public domain yet. A copyright holder has rights in their work, including control over where their work is performed, for 70 years after the artist dies for all works created after January 1, 1978. Fortunately, I suspect most artists would be happy that you’re promoting their work so they’re unlikely to come after you for copyright infringement even if they could.

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Police Arrest Would-Be Prankster for Conspiracy

Jumping Jacks by Flabber DeGasky

Jumping Jacks by Flabber DeGasky

I recently read a news story out of Buffalo, NY about a 17 year-old being charged for conspiracy, criminal nuisance, and disorderly conduct for posting an event on Facebook that invited people to assemble at the Millennium Hotel in Cheektowaga, NY. The reporter called the planned event a “flash mob,” but given that the article said that organizer’s “intent was to cause damage and create chaos,” I doubt that this was a plan constituted a real flash mob. It sounds like an invitation to commit a crime such as disorderly conduct or rioting. I could not find the event on Facebook, so I can’t say for certain what the planned activity was.

Either way the lesson is the same: If you plan an event which involves a crime, you’re asking to be charged with conspiracy and solicitation. Even if you only meant to do something fun, you could still be charged. Even if you cancel the event and nothing bad happens, you could still be charged. Let’s look at what it takes to get charged with each crime.

In Arizona, you need three things to be commit conspiracy:

  1. Two or more people,
  2. A plan between them that involves committing a crime, and
  3. One overt action in furtherance of that crime, even if that act is not a crime.

So if you and your friend planned to kill someone and one of you bought a shovel to bury the body, you could be charged with conspiracy. Likewise, if your plan was more innocent, like planning a pillow fight where the rules say you can hit anyone in the vicinity with your pillow whether they have a pillow or not and you buy a new pillow for the event, that could also be conspiracy.

It’s also very easy to commit solicitation in Arizona. All you have to do is ask or encourage someone to commit a crime. Even if the person declines the invitation, it’s still solicitation. Asking someone to kill your spouse, regardless of their answer, is solicitation. Likewise, inviting people to participate in a prank that involves touching people in any way without their consent might be solicitation to commit assault. Putting up a Facebook event and making it public could be enough for a solicitation charge.

These types of crimes are easy to commit, especially if you don’t realize that what you’re planning to do is illegal. Your ignorance of the law will generally not protect you from the consequences of your actions. It’s because of this that it’s imperative that you contact a flash mob attorney (like me) when you are beginning to plan your event. Even if the illegality of your event is brought to your attention and you cancel it before anything bad happens, you could still face serious criminal charges.

If you want to know more about committing conspiracy and solicitation by planning a flash mob, I made a video about it. You can also view it here.

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.

I’m an ABA Legal Rebel!

Photo by Don McPhee Photography

I’m excited to share the news that I’ve been named a 2012 American Bar Association Legal Rebel! The ABA acknowledges 10 members of the legal community each year for being innovative leaders. I am humbled and honored to be added to this illustrious group.

Photo by Don McPhee Photography

I learned about the Legal Rebels when I was in law school at Arizona State University. Every year they invite a panel of Legal Rebels to the school to talk to students about non-traditional career paths. I’m so grateful they hold this event for people like me who need role models who embody the idea that there’s more than one way to be a successful lawyer. I really admire people like Stephanie Kimbro, Niki Black, and Jeffrey Hughes who created some of the roads less traveled in the legal profession.

I had a wonderful conversation with Legal Rebel Mark Britton at the ABA TechShow this year. I met him the year before when he visited my law school when I was a 3L. In one year, I had gone from sitting in the audience listening to him speak to sharing the stage with him at LexThink.1. At the end of the event he was very encouraging of me and my firm and said I was “doing everything right” with my career.

The ABA selected me to be a Legal Rebel for my work in flash mob law. Even though I’ve been a lawyer for less than a year, I’ve examined the legal issues surrounding flash mobs since 2009 when I participated in my first flash mob – the No Pants Light Rail Ride. A group of us from that event decided we wanted to keep doing these events so we co-founded Improv AZ. Before  every event, I think through the criminal, First Amendment, tort, property, and intellectual property issues and try to ensure that we aren’t setting ourselves or our participants up to get arrested or sued.

Photo by Don McPhee Photography

I’m also an advocate for the real flash mob community. I try to correct the media when they call group criminal activities or any protest or demonstration organized through social media a “flash mob.” I want to maintain our reputation for organizing surprise events that entertain an unsuspecting audience.

I never would have pursued flash mob law without the support of some very special people.  I especially want to thank Ari Kaplan who encouraged me to pursue this niche, my fellow Improv AZ co-founders, and my family and friends who encouraged me to follow my dream of being a flash mob lawyer. Thank you again to the ABA for bestowing this honor upon me and for my awesome Legal Rebel Converse sneakers!

Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
Please visit my homepage for more information about Carter Law Firm.