Free speech ruling stands

Las Vegas is not challenging a recent Fremont Street Experience free speech ruling that went against the city and will instead draft new ordinances to regulate activities such as handing out fliers or promoting a cause at the downtown pedestrian mall.

"We're going to try to craft something that will satisfy the needs of the constitution as well as the needs of the Experience, as far as the commercial viability of it down there," said Las Vegas Mayor Oscar Goodman. "All the parties will get together and see if we can agree for the first time, rather than have to litigate it in court."

Those parties would include the American Civil Liberties Union of Nevada, which has fought a 12-year legal battle with the city and Fremont Street Experience LLC over First Amendment issues on Fremont Street.

The case dates back to 1997, when the ACLU and other plaintiffs sued to remove city ordinances restricting or banning such activities as leafletting, soliciting on behalf of political or charitable groups, and setting up tables to promote or raise money for a cause.

A federal court found problems with the laws, which were revised in 2006 and subsequently challenged again. In March, a judge found the revised ordinances went beyond simply maintaining an orderly public environment and were therefore unconstitutional.

The city had 30 days to appeal that ruling, but the deadline passed April 20, said Allen Lichtenstein, general counsel for the ACLU.

"Hopefully, the city will accept the fact that it is a public forum that is open to all communication protected by the First Amendment and not try to treat it like something else," Lichtenstein said.

"It's like any other street and sidewalk. Any other street and sidewalk in the city and the county are public forums."

Gary Peck, the ACLU's executive director, said he appreciates the city's willingness to accept input on any ordinance put forward. But he would also be just fine with leaving things be.

"We are certainly willing to sit down with them, talk to them, provide feedback," he said. "It must be added, we're perfectly happy with the status quo at this point.

"The Fremont Street Experience is a public forum. It is open to the full panoply of First Amendment activities."

He cautioned that the city must show a compelling interest to regulate expression and that the ordinance must be narrowly written so only compelling interest is addressed.

"'Free speech is bad for business on Fremont Street' is not a compelling interest that the courts have recognized as legitimate," Peck said.

Shortly after the ruling, Goodman said that it might be time to let the lawsuit go, even though he had concerns about the impact of the ruling. A discussion of the ruling was scheduled for the April 15 City Council meeting but was removed from the agenda.

Councilman Ricki Barlow, however, noted that the Fremont Street Experience is not like other streets and sidewalks in Las Vegas. It contains a dense concentration of hotels and casinos that are a major tourist draw, a major source of tax revenue and a central part of the city's efforts to reinvigorate downtown Las Vegas.

Although the examples in the court cases over the years included examples such as gathering signatures for a medical marijuana initiative, advertising the John Edwards presidential campaign and promoting the ACLU, what officials worry about are pamphleteers passing out cards featuring half-naked women and numbers for escort services, just like on the Strip.

"It leaves the door wide open to anyone and everyone," Barlow said, adding that while there haven't been problems yet, he expects them to arise.

The city already has restrictions in place on "aggressive" solicitation, which would include blocking someone's path or pressuring them to accept something. Barlow also said the city needs new ordinances because he doesn't think there's anything in existing law that can protect the atmosphere at the Fremont Street Experience.

"I don't believe so," he said. "And if there is, it's not strong enough to do what we would like it to do."

The task is a complicated one because courts usually frown on regulation focusing on the content or message that's being communicated. What have been found acceptable are "time, place and manner" restrictions that balance free speech with other needs, such as maintaining traffic flow or ensuring public safety.

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