Thursday, July 03, 2003
Copyright © Las Vegas Review-Journal

Fremont Street decision reversed

Appeals court rules Experience is a public forum

Shari Romberger holds her sleeping daughter, Caitlin while watching the Fremont Street Experience laser-light show Monday on their vacation from Hawaii. The 9th U.S. Circuit Court of Appeals ruled Wednesday that the Fremont Street Experience is a public forum where all First Amendment-protected activities are allowed, reversing a Las Vegas-based judge's decision. Photo by SAMANTHA CLEMENS/REVIEW-JOURNAL

A federal appeals court ruled Wednesday that the Fremont Street Experience is a public forum where all First Amendment-protected activities are allowed, reversing a 2001 decision by a Nevada-based federal judge.

The 9th U.S. Circuit Court of Appeals concluded that the $70 million remodeling of Fremont Street with a giant canopy, high-tech laser-light show and spruced up sidewalks did not alter the area's status as a public forum.

The San Francisco-based court rejected the argument from the city of Las Vegas and the private group that manages the promenade that leafleting, soliciting, proselytizing and other First Amendment activities could be limited there because the Fremont Street Experience was created for the purpose of stimulating downtown's sputtering economy, not promoting expression.

"Despite its expensive make-over, the Fremont Street Experience remains a public thoroughfare," 9th Circuit Judge Richard Paez wrote in the court's decision. "The grime of Fremont Street has been scrubbed away and it has been dramatically redesigned, but its character as a central commercial street remains."

Under previous rulings by U.S. District Judge David Hagen in Las Vegas, activists and others could pass out noncommercial leaflets at the Fremont Street Experience, but the city and the promenade's private managers had the power to shoo away commercial solicitors, such as those who pass out adult advertisements to passers-by.

But in reversing that ruling and designating the Fremont Street Experience a public forum, all leafleting will now likely be allowed.

City officials promised the decision wouldn't be the final word on the matter.

City Attorney Brad Jerbic characterized the ruling as merely one more link in a long chain of court battles.

"We've won more than we've lost on this issue," Jerbic said. "No city ordinances have been enjoined and further litigation will clarify the remaining issues."

Leaders of the American Civil Liberties Union of Nevada, one of several plaintiffs in the nearly 6-year-old case, heralded the ruling as "a complete victory" and said the timing of the judges' decision had special resonance for them.

"Particularly on the eve of the Fourth of July, everyone who cares about the First Amendment and free speech should celebrate this decision," said Gary Peck, the group's executive director.

Controversy over what is and is not allowed on the promenade began shortly after construction of the Fremont Street Experience was completed in 1995.

Members of the local anti-nuclear weapons group Shundahai Network and other protesters complained to the ACLU that police and security guards were restricting free speech activities there.

In August 1997, the ACLU held a small rally under the massive canopy to protest the restrictions, and Las Vegas police ordered them to disperse.

Later that year, the ACLU and other groups filed a federal lawsuit against the city, then-Mayor Jan Jones, Fremont Street Experience LLC and its president, Mark Paris, alleging the defendants had adopted unconstitutional policies.

In split decisions issued in 1998 and 2001, Hagen made rulings that were partial victories for both the plaintiffs and the defendants.

First, he ruled the Fremont Street Experience was a nonpublic forum, a victory for the defendants.

The ruling meant people could not solicit for commercial businesses, such as adult businesses, or set up tables to hand out literature under the canopy.

But in a victory for the plaintiffs, Hagen struck down as unconstitutional a city code that had banned noncommercial leafleting and a city ordinance prohibiting the sale of message-bearing materials "unless conducted or authorized by the Fremont Street Experience," ruling that such a law provided government officials with unbridled discretion to regulate speech.

Both the plaintiffs and defendants appealed Hagen's ruling.

In a complex, 18-page ruling, the circuit court on Wednesday both affirmed and reversed portions of Hagen's decisions.

The appeals court affirmed that the city code prohibiting noncommercial leafleting and the city ordinance regarding message-bearing materials were unconstitutional.

In reversing Hagen's ruling that the area was not a public forum, the justices ruled that although the Fremont Street Experience was created to spur downtown's economy, its commercial nature is not relevant to its status as a public forum.

"As the Supreme Court has made clear, `traditional public fora are open for expressive activity regardless of the government's intent.' "

The appeals court remanded the commercial soliciting issue to Hagen, saying he should again consider whether it should be allowed in light of the public forum designation.

But the remanding of the issue is a formality.

The appeals court left little mystery as to how Hagen should rule, noting that "solicitation is an expressive activity, and hence is protected under the First Amendment."

The appeals court also remanded to Hagen the issue of whether citizens can erect tables at the Fremont Street Experience to hand out literature.

Mayor Oscar Goodman, Jerbic and Fremont Street Experience officials said the decision appears to contradict Hagen's previous ruling on the matter and is also inconsistent with a 2nd Circuit decision on a similar matter.

Because of the apparent contradiction between judges on the 9th Circuit, Goodman, a former defense attorney, said he will advise Jerbic to petition a hearing en banc by the 9th Circuit. That would bring together a larger panel of judges to rule on the matter in place of the three-judge panels that have rendered decisions on the matter to this point.

"That's the way to go since we have a split court," the mayor said.

Goodman said the city, which has used its legal staff on the case, will continue its fight even though he doesn't believe the success of the Fremont Street Experience or downtown redevelopment hangs on the outcome. A ruling in the city's favor would merely make it easier to create the atmosphere officials want downtown by keeping out pornographic handbills, the mayor said.

"It's not life or death," he said. "It just makes life a little easier when you don't have smut being handed out."

But now that the court has ruled on the core issue of the case, whether the Fremont Street Experience is a public forum where speech rights are protected, Peck said the city should abandon any attempt to reverse the decision.