“Niche development” in legal marketing typically entails becoming known for a deep focus on particular aspects of a practice area or business segment, expertise in arcane and/or complex issues, or both. What interests me about Ruth Carter’s work in the law of flash mobs and pranks is that she drew from her own experiences and tapped into the cultural zeitgeist to pioneer an entirely new category of law.

Q:  From reading through your blog archives, it seems like your interest in the law of flash mobs and pranks originally derived from your passion for improv and guerilla theater and took root while you were in law school. Is that a fair description? Was there an “ah ha” moment for you, where you decided that it was a niche you wanted to explore in depth?

A: That’s a fair description. My first flash mob was the 2009 No Pants Light Rail Ride when I was a 1L. During that flash mob, I met the people with who I founded Improv AZ.

My real “ah ha” moment came during my 1L summer during my internship with the U.S. Army JAG. I got to spend a few days sitting in on criminal law classes for military police trainees. During my criminal law class, the only crimes we focused on were homicide and manslaughter. We skipped the crimes that are more common and easy to commit. At the military police class, I learned about crimes like solicitation and conspiracy – two crimes that flash mob organizers can commit just in the planning stages of a flash mob. That’s the experience that showed me that flash mob organizers need to be mindful of the legalities of their events at all stages of planning and executing flash mobs.

Q: How do you describe your engagement with the topic today? Is it an avocation, or are you developing and marketing your expertise as a unique practice area?

A: I live and breathe flash mob law. I absolutely love it.

I don’t know how much of a demand there is for flash mob law practitioners. I am opening a law firm in January 2012 and I will be listing “flash mob law” as one of my areas of practice.

Q: To a layman like me, it appears that the challenge of this niche is understanding the interaction of criminal law, property rights, torts and even constitutional law as they apply to public performance — a classic example of balancing rights and responsibilities. How do you describe it?

A: That’s about right. I describe flash mob law as a combination of criminal, property, tort, First Amendment, intellectual property, and entertainment law.

Q: The transgressive nature of flash mobs and pranks is central to their appeal. As an attorney, how do you reconcile those tensions?

A: There is a huge difference between violating cultural norms and breaking the law. One the keys to organizing successful flash mobs is knowing how to push the envelope without crossing the line.

Flash mobs are about doing the unexpected but it should never go so far that it interferes with others’ rights or gets you arrested. It’s about entertaining, amusing, and surprising an unsuspecting audience.

Q: Wikipedia takes pains to distinguish between “flash mobs” (brief, seemingly pointless) and “smart mobs” (promotional stunts). Is that a distinction without difference, or are there substantive issues that attach to one or the other type of activity? What about “pranks”?

A: The difference between flash mobs and smart mobs is the intent. Flash mobs have no underlying motivations except to do something entertaining and unexpected. Smart mobs are a form of advertising. They exist to promote causes, services, and products.

My troupe, Improv AZ, only does entertaining flash mobs and pranks. We would entertain the possibility of being hired to do a smart mob, but it is not something we actively seek to do.

The difference between pranks and flash mobs is mainly the size. Pranks are small scale activities that we do not invite the public to join. The only people who are involved in pranks are the organizers, our videographers, and our photographers. No one knows that a prank was planned until the blog and video appear on the internet. The prank that Improv AZ is best known for is the Coroner Prank. The first time we did it, the only people involved were the 4 “coroners” and 2 people who videotaped us.

Flash mobs are large scale events where we invite the hundreds of people on our email list or the general public to participate. Some of the flash mobs that Improv AZ has organized are the annual No Pants Light Rail Ride, the Fake Protest, Welcome Back, and the Epic Super Hero Battle.

Q: In your view, what are the biggest public misperceptions about what we can and can’t legally do with guerilla events, stunts, pranks, etc.?

A: From the organizer perspective, the biggest misperception is the idea that you can do whatever you want as long as you have good intentions. That’s not true – your actions matter more and you can be arrested for breaking the law even if you meant no harm. Additionally, some people assume they can do whatever they want in a public place, like shopping malls.

There were a few incidents at the end of 2010 where flash mobs ended badly. There was a dance flash mob at Scottsdale Fashion Square in Arizona that resulted in some people getting banned from the mall for a year. The security there has made it clear that they don’t want any flash mobs on their premises. There was another incident at a mall in northern California where people were invited to come and sing the Hallelujah chorus. So many people showed up to participate that the fire marshal had to come to evacuate people and there were reports that the floor felt like it was giving way.

Q: YouTube and shows like “Punk’d” and “America’s Funniest Home Videos” have elevated pranks to an entertainment genre. As average folks chase fame and/or fortune with their Flip cams and mobile phones, what legal issues do they need to be aware of?

A: The main thing that people need to be aware of is when they do a prank or flash mob that involves illegal activity, and they put the video on the internet, they may have just published all the evidence that law enforcement needs to charge them with a crime.

Q: Flash mobs are increasingly associated with civil disobedience and intentional criminality. Have you found that this conflation is creating more problems for group actions intended for artistic expression, entertainment and commercial purposes?

A: Yes. I cringe every time I read an article that refers to a criminal incident as a “flash mob crime.” These group assaults and robberies hurt the reputation of the real flash mob community when the media refers to them as flash mobs. As organizers, we put significant time, thought, and energy into making sure that our events are legal. We don’t want to be associated with any illegal activities. Some of us argue that the term “flash mob crime” is an oxymoron, because flash mobs cannot include criminal acts.

Q: Can you share some lessons you learned the hard way about the legal consequences of flash mobs and pranks?

A: Oh yes. I learned the hard way that just because we planned a prank to be legal, someone still might freak out and call the cops. During Improv AZ’s Coroner Prank #2, we took our body bag for a walk through a mall. The mall cops detained us and called the real cops claiming that we had committed “dozens of felonies.” The police didn’t cite us for anything and the worst thing that happened was some of us were banned from the mall for three months. That was the prank that convinced me to take a criminal procedure class so I would know what authority mall cops and real cops have. Looking back, we probably could have left the mall when the mall cops confronted us despite their instructions to remain there.

Q: What are your top five tips for flash mob and prank planners?

1. Never assume that your flash mob or prank is legal – always look up the applicable state and local laws. When in doubt, consult an attorney.
2. Be prepared for encounters with the police. Know what they can and can’t do and be ready to respectfully explain why what you’re doing is legal.
3. Make sure your participants know their do’s and don’ts going into a flash mob. For example, before the No Pants Light Rail Ride, we remind our participants that they must have their genitals and anuses covered per Arizona law. We encourage people not to wear thongs and to wear briefs under their boxers to prevent any unexpected exposure when they sit down.
4. Don’t do anything in public that you wouldn’t put on the front page of the newspaper. Once the photos and video are on the internet, you have no control over who is going to see it – your family, your friends, your employer, etc. It’s not uncommon for the press to be tipped off about upcoming flash mobs and for the footage to end up on the evening news.
5. If you are arrested, immediately tell law enforcement that you’d like to exercise your right to remain silent and ask to speak to an attorney, and then don’t say anything to anyone until you speak with an attorney.

Known for her daring antics and outgoing personality, Ruth Carter is a co-founder of Improv AZ and the owner of Carter Law Firm, PLLC, a virtual law office specializing in intellectual property, social media, First Amendment and flash mob law. Ruth blogs weekly at UndeniableRuth.com.