This comes up when you search for a stock photo of Kid on Santas Lap at the Mall.
  • Cheryl Casey/Shutterstock
  • This comes up when you search for a stock photo of "Kid on Santa's Lap at the Mall."

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First, let's discuss for a moment why this photograph is a beautiful deviation from what a stock photo usually is. Because this is, very clearly, not a stock stock photo.

The basic deviation is imperfection leading to doubt. A stock photo should raise no questions, but this photo raises many.

Start with Santa. Why won't Santa look us in the eyes? What does he have to hide? Where are Santa's spectacles? How old is Santa? Is Santa even smiling under there? What products does Santa use to make his beard so silky? Does Santa shower, or does he prefer to bathe?

The problem with all of these questions is that they crack the smooth surface of the holiday picture, and distract from its purpose to communicate generic seasonal pleasantness.

The little girl is the most stock part of the picture, yet she is not as smooth as a frozen country creek in a Jimmy Stewart movie, either. First, there's the glaring reflection of the light on her eyeballs. Couldn't that have been softened? Then, there is the matter of Santa's hand on her hip. Is she surreptitiously trying to remove Santa's hand from about her person with her mysterious two-handed maneuver? Her right hand alone would seem to simply want to hold Santa's hand in a nice warm clasp. But her left hand is unresolved. It hints at resistance. The fingers are uneven and splayed in an awkward way, as if they want to pull something apart.

All that said, the girl does wear the platonic ideal of the holiday facial expression: placid joy, eyes upturned toward the Lord Jesus Christ.

Now for the boy's third of the portrait. This boy is not smiling. This boy wears the expression of an outtake, that photographic phenomenon where the image is created but only to be discarded later in favor of a photograph of exactly the same scene that is more right. This boy represents the wrong moment. The holiday spirit is never the wrong moment, never dislocated either in time or in space; the holiday spirit is the epitome of Just Right in Every Wayness. Again, the boy disrupts the ideal.

And what is going on with the boy's hands? Is he doing that baby sign language move that means "more"? More what? Isn't he too old for baby sign language? Or is he raising his arms away from Santa's giant hand in understandable repulsion, because—is Santa wearing a latex glove? Has there ever been a sketchier-looking Santa-hand than this one with its fingertips pressing in on the little belly of this boy?

This photograph is a gift and a treasure. Put it under your mental tree today.

But look, I came here to share with you a more pressing question, a question that inspired my search for a stock photo of the mall at Christmas in the first place: What are you allowed to say at the mall?

Is free speech protected at the mall? The mall is (almost always) a privately owned place, but the mall has sometimes been treated differently under the law than individual or big-box stores. It makes a certain sense. The mall has areas where you promenade and gather and sit in the massage chairs and just watch people go by—where the public just congregates.

My former colleague Peter Callaghan Tweeted a fascinating essay on the free-speech laws of malls, from the publication California Lawyer.

The laws and their applications vary through time and depending on the state, according to Marc Price Wolf. In 1946, the U.S. Supreme Court "held that the business district of a privately owned 'company town' could not restrict expressive rights because the town was the functional equivalent of a municipality," writes Price Wolf. He doesn't elaborate, but from what I can deduce, this meant that the whole mall was considered a company town, and the areas owned only by the mall (rather than individual stores) were the business district of the company town.

Thirty years later, "the Court took a big step in the opposite direction," and at malls in various places, there have been "rule[s] one would expect to find in a totalitarian police state." "Impromptu chitchat," for instance, could be a problem. The precedents zigzag.

Bottom line: If you want to test the authorities, hey, go for it. But there really seems to be no bottom line.