City studies ‘free expression zones’ next to Fremont area

Las Vegas wants to establish "free expression zones" next to the Fremont Street Experience and use them to corral all leafleting, entertainment and other similar activity that's not specifically sanctioned by the company that operates the downtown attraction.

The proposed ordinance, which is set to be introduced at Wednesday's City Council meeting, comes despite previous legal defeats the city has suffered trying to regulate speech in what has been declared a public forum.

"This is something that has already been determined by the courts," Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada, said Friday.

"If it's introduced and it's passed, then we will once again fight it, and you see how well the city has fared trying to close Fremont Street to free expression. It is a total waste of taxpayer money and time."

City Attorney Brad Jerbic could not be reached for comment Friday.

Councilman Gary Reese is sponsoring the ordinance, along with Jerbic. His Ward 3 includes the south side of the Fremont Street Experience. He did not return phone calls seeking comment Friday.

As currently written, the ordinance proposes two 100-foot by 12-foot "free expression zones" on the Third Street pedestrian plaza on the north side of the Fremont Street Experience canopy, directly across from the Third Street Stage.

Those areas would be "specifically designated by the city to be used for solicitation, leafleting and mall entertainment," such as handing fliers to passing tourists.

The fight over the Fremont Street Experience stretches back to 1997, when the ACLU first challenged city ordinances that prohibited certain expressive activities at the pedestrian mall.

The ordinances were amended in 2006 and challenged again.

In all, the case made three trips to the 9th U.S. Circuit Court of Appeals and almost reached the U.S. Supreme Court at one point.

In early 2009, a federal judge struck down the ordinances as unconstitutional.

The judge also recognized that there is a valid interest in maintaining the safe flow of pedestrian traffic at the Experience, as well as a need to protect merchants who have stores or kiosks there.

The proposed ordinance is needed to impose "reasonable time, place and manner regulations" on people pitching a message at Fremont Street, states as summary of the proposed ordinance. That's the standard courts have accepted when dealing with First Amendment free speech cases -- speech should not be regulated based on its content, but can be subject to restrictions that keep the public square orderly.

There are examples of free expression zones that meet constitutional muster, Lichtenstein said.

For example, demonstrators at a presidential event may be kept in a certain area for security reasons, or competing protest groups can be kept apart so that violence doesn't break out.

Another example is in front of the Las Vegas Wedding Bureau at the Regional Justice Center, where couples go to get their marriage licenses. When pamphleteers from competing wedding chapels caused the entrance and exit from the office to be clogged, the city marked off a solicitation area where those employees could solicit customers without blocking the sidewalk.

"Nothing like that is occurring on Fremont Street," Lichtenstein said. "It's trying to get people off of Fremont Street because the city and the Fremont Street Experience doesn't want them there, as opposed to simply putting them in a spot where they're reaching their audience ... but are just not obstructing people."

The ordinance is being introduced on Wednesday but will not be voted on and probably won't even be discussed on that day.

New ordinances are usually sent to the recommending committee, which hammers out the details of ordinances and then sends them to the full council.

Contact reporter Alan Choate at achoate@reviewjournal.com or 702-229-6435.