The Basics of Flash Mob Law

Vol. 1, No. 10

Ruth Carter is the owner of Carter Law Firm in Phoenix, Arizona. She specializes in intellectual property, Internet law, business formation and contracts, and flash mob law.

 

  • Learn how to be of legal assistance before, during, and after the event.
  • Learn how to prepare for encounters with the police.

 

Anyone who’s spent time on YouTube has seen the videos from flash mobs—people frozen in Grand Central Station, not wearing pants on public transportation, and dancing in unison for no particular reason. For those who have been living under a rock, flash mobs are unexpected group performances that appear to occur spontaneously and disperse shortly after they begin. The purpose is usually to surprise and entertain the unsuspecting audience, although companies are now organizing flash mobs as a way to promote products and events.

I participated in my first flash mob when I was a 1L at Arizona State University. The event was the No Pants Light Rail Ride in Phoenix, Arizona in 2009. At that event, I met the people with whom I formed a flash mob troupe called Improv Arizona. We organize several flash mobs every year. Some of our past events include the annual No Pants Light Rail Ride, the award-winning Epic Super Hero Battle, welcoming a stranger at the airport, and fake protests.

From the beginning, I was fascinated by flash mob law—all the issues that arise while planning a flash mob, putting on the event, and the legal implications that come into play once the flash mob is over. Flash mob law isn’t a separate area of law but a hybrid of criminal, tort, property, intellectual property, First Amendment, and entertainment law. It takes a particular lawyer to practice flash mob law because you have to be open to and generally support your clients’ ridiculous ideas, patiently work with them to try to keep their events legal, and be willing to be the killjoy who explains how many ways they could get arrested or sued if they proceed with their plans.

Please note: I am not talking about what the media calls “flash mob crimes” or “flash robs.” When someone organizes a group of people to rob a convenience store, that’s just shoplifting. Likewise, when someone organizes a group to randomly attack strangers, that’s assault and battery. Those activities are not flash mobs. Referring to these incidents as flash mobs hurts the reputation of the real flash mob community. Real flash mobs have no criminal intent.

 

Before the Flash Mob

Ideally, a lawyer is involved from the beginning of a flash mob. In many states, two people can be arrested for conspiracy if they make a plan to commit a crime and one person takes one action in furtherance of that crime. If a flash mob troupe plans an event that involves a crime, such as trespassing, and they scout the area or buy costumes for the event, that could be sufficient evidence for an arrest. Organizers are also at risk of being cited for solicitation if they post an invitation for the public to participate in a flash mob on their website or Facebook if the event involves a crime.

Before every event, the flash mob organizers or their lawyer should try to think of everything that could go wrong during the event and every law that they might be accused of breaking and mitigate those problems in advance. Over the years, I’ve had to research laws such as trespassing, assault, blocking a thoroughfare, impersonating a government official, disorderly conduct, unlawful assembly, and indecent exposure.

 

During the Flash Mob

Flash mob organizers should always provide a list of guidelines to their participants so that they know what they can and cannot do during the flash mob. This should be provided to them before the event and reiterated shortly before the event occurs. Improv Arizona organized a pillow fight for International Pillow Fight Day at a local open air mall in 2009. Here were some of the guidelines we gave to our participants.

  • Store your pillow in an inconspicuous bag before the pillow fight.
  • Only hit other people who are holding pillows.
  • Don’t hit anyone who is holding a camera.
  • Take off your glasses.
  • If your pillow explodes, clean it up.
  • If the mall cops tell us we have to stop or leave, comply with their instructions.

 

In many communities the mall has replaced the city square, and it is a prime location for flash mobs. The problem is that malls are privately owned, and many owners do not like flash mobs on their premises. If organizers are going to do a flash mob in a mall, they need to know what authority the malls cops have and what to do if they encounter them. In general, mall cops are not deputized, so they can’t force someone to show identification, and they cannot detain a person who isn’t shoplifting. They can enforce the mall’s rules against videotaping at the mall, but they can’t force someone to prove that they erased their footage. They can also tell anyone to leave the property.

One of our local malls has put all the flash mob troupes on notice that flash mobs are not permitted on their premises and that we will be arrested for trespassing if we have an event there. Flash mob organizers were banned from that mall the last time a group had a flash mob there, and the event was a Christmas carol sing-a-long during the holiday season. My troupe will not do an event there because we don’t want to go where we’re not welcome, and they have real police officers on site.

Flash mob organizers generally do not obtain permits for their events, unless they are marketers who are using a flash mob to promote their client. Many hope to have the event dispersed before the police can be summoned, or hope to have a group of participants that is so large that the ringleaders could not be picked out from the crowd.

Regardless of the plan, organizers need to be prepared for encounters with police at their events. If the flash mob was properly planned, the officers will hopefully just laugh when they see it, but there is a possibility that the officers will have questions. The organizers need to know about Terry stops, their rights to remain silent and to legal counsel, and whether they are legally obligated to produce a valid identification card upon request. (That might pose a challenge for some during the International No Pants Ride!) There may be flash mobs that push the legal envelope where organizers might want to have a copy of certain statutes with them so they can directly address the officers’ concerns and demonstrate that they are acting within the legal limits of the law.

 

After the Flash Mob

Many flash mob participants assume that their involvement in the flash mob ends when the event is over and the group disperses, but there are enduring legal implications. There are usually photos and videos from the event, taken by the organizers’ photographers and videographers and by the audience. Typically, these are posted to the Internet within minutes or hours of the event.

It is also not uncommon for local TV stations to show up at flash mob events. Many flash mob troupes have email lists for notifying potential participants about upcoming events. I would not be shocked to learn that some of the subscribers are reporters who use the list to know where to show up to shoot footage for the news. All these photos and videos create a copious amount of evidence against the organizers and the participants if any misconduct occurs during the flash mob.

The photos and videos allow people who were not present during the flash mob to experience the event. The participants have no expectation of privacy in anything they do in public, but they may not be ready for the some repercussions of their actions. For instance, if a participant has an at-will employment contract that states that he can be fired for any reason or no reason at all, he might get fired if his boss dislikes the fact that he participated in the flash mob, even if he did it on his own time, and no laws were broken.

There is also a risk that the organizers will face civil liability if anyone is injured or any property is damaged during a flash mob. Most flash mob troupes are a group of friends and a website. They don’t have a separate entity or liability insurance to protect them, so if they get sued and lose, the organizers will be personally responsible for the damages.

This raises another unique question about who should be held responsible if something goes wrong at a flash mob. Are all the organizers in the group liable? Everyone who was an administrator on the Facebook page or website where the event was announced? Just the ones who planned the event? Only the ones who were present at the event? Should only the individuals who did the actual acts be held responsible? These are questions that must be answered on a case-by-case basis.

It’s also common for the organizers to have their own videographers who record the event and to compile video clips into a montage for YouTube. My flash mob troupe likes to set our videos to music and to use local bands whenever possible. This requires us to obtain a license from the band to use and modify their work.

Flash mobs have become somewhat commonplace, and flash mob law is an emerging area of practice. Flash mob organizers need lawyers who understand their needs and are willing to work with them to prepare for their events. I love working on flash mob projects, and it’s a fun area of law to practice. If you have flash mob troupes in your area, you should be aware of their legal needs and considering adding flash mob law to your areas of practice.

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