Tuesday, January 13, 2004
Copyright © Las Vegas Review-Journal

FREMONT STREET EXPERIENCE: Speech can't be regulated

U.S. high court affirms public forum designation downtown

David Buer, an advocate for the homeless, protests at the Fremont Street Experience in August 2001. REVIEW-JOURNAL FILE PHOTO

The U.S. Supreme Court on Monday let stand a lower court ruling that the Fremont Street Experience is a public forum where all free speech activity is permitted.

The high court's refusal to hear an appeal brought by the city of Las Vegas and the Fremont Street Experience, issued without comment, opens the door for protesters, petitioners, panhandlers and pamphleteers, who have been kept at bay by city ordinances, to descend on the pedestrian mall.

"We are very pleased that it is now unquestioned that the Fremont Street Experience is a public forum open to a whole range of free speech activities," said Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada. "It is consistent with previous court decisions that say that streets and sidewalks, even when they're cosmetically changed, still represent the quintessential public forum."

It will now be left to the City Council to decide whether to alter or throw out ordinances banning handbilling and solicitation at the privately run entertainment complex.

U.S. District Judge David Hagen in Las Vegas previously ruled that activists and others could pass out noncommercial leaflets at the Fremont Street Experience. He maintained, however, that the city and the promenade's private managers could shoo away commercial solicitors, such as those who hand out adult advertisements to passers-by.

The city had argued those restrictions were necessary for the Fremont Street Experience to accomplish its goal of stimulating the downtown economy.

The 9th U.S. Circuit Court of Appeals in San Francisco reversed Hagen's ruling in July, stating the plaza was a public forum. With the Supreme Court choosing not to overrule the 9th Circuit's decision, Hagen will revisit his decision.

Lichtenstein said that will mean "the entire panoply of First Amendment activities allowed on streets and sidewalks everywhere will now be permitted there."

Todd Bice, the attorney for the Fremont Street Experience in the matter, acknowledged it would be more difficult for the consortium of downtown casinos to justify Las Vegas' ban on commercial solicitation, which had kept panhandlers off the mall.

"The burden of proof on us has certainly increased," he said.

The possibility of the panhandlers and porn pamphleteers setting up shop on the mall upset employees of several Fremont Street Experience businesses Monday.

"Even now, with panhandling controlled, there are still so many who do it," said Keith Watts, who works at a kiosk selling sunglasses beneath the mall's canopy. "If every 2 feet you've got someone asking for money, that would be a concern for vendors."

Fremont Street Experience Chairman and Boyd Gaming President Don Snyder said the ruling will "impact us and our ability to define our environment."

"I do find it disappointing," he said.

Those disappointed by the Supreme Court's decision to not hear an appeal frequently cited the adult entertainment pamphleteers so prevalent on the Strip. But Gary Peck executive director of the ACLU of Nevada, said the case was never about pornography.

"That is a part of the spin people try to put on it," Peck said. "Free speech is not neat. Free speech can be a big fat pain in the rear end. But our society takes those rights very seriously."

The lawsuit, filed in 1997, two years after the Fremont Street Experience was completed, addresses the rights of political, religious and labor groups to express their views. 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.

"They shoo anyone off the Fremont Street Experience who they believe is not good for business," Peck said.

Mayor Oscar Goodman said he plans to meet with ACLU representatives to discuss ways to accommodate free speech on the pedestrian plaza "so it's not disruptive."

"I'm hoping we'll be able to work out a win-win for civil liberties and a win-win for downtown," the mayor said.

Lichtenstein said the ACLU will seek to recover the legal fees spent on the fight.

Las Vegas already has been ordered to reimburse the ACLU $86,000, according to Lichtenstein. That figure could rise once the cost of defending the case in federal appeals court is added to it.

"This has been a long, hard-fought case that's been going on for years," Lichtenstein said. "The city of Las Vegas spent a substantial amount of taxpayer money pursing this matter when it was, in our view, pretty clear that the Fremont Street Experience is a public forum."