Fremont Street ‘free expression zones’ on hold

An ordinance establishing "free expression zones" at the Fremont Street Experience, which could reignite a long-running legal battle, will be on hold for at least two more weeks.

As proposed, the ordinance would establish two zones, 12 feet by 100 feet in dimension, on the Third Street promenade, which is adjacent to the Fremont Street pedestrian mall.

Activities not specifically allowed by the company that operates the mall, such as handing out promotional material or street entertainment, would be restricted to those zones.

The problem, according to the American Civil Liberties Union of Nevada, is that courts repeatedly have said the Fremont Street Experience is a public forum. The proposed ordinance is a "step backward" that would violate free speech guarantees, ACLU general counsel Allen Lichtenstein said.

He said many aspects of the proposed ordinance have been challenged in court before and thrown out in legal proceedings that stretch back to 1997.

"All of this is well-trod territory. This is nothing new," he said, adding that the ACLU is already working with the city and Fremont Street Experience LLC to craft regulations that fit with First Amendment speech protections.

"I think they're going well," Lichtenstein said of the talks, but he said he couldn't discuss specifics because of ongoing negotiations. "To kill that and re-litigate issues that aren't issues anymore, that makes no sense. The city can either work with us and other stakeholders ... or we can go back to court again."

Officials from the city and Fremont Street Experience, which operates the pedestrian mall, have been meeting with the ACLU, said Jeff Victor, the corporation's president.

"We have been doing that for over a year now," he said. "We have seen zero movement from the ACLU on this."

The ordinance represents what's known as "time, place and manner" restrictions on speech, he said. Those types of restrictions have been found constitutional when the content of the speech isn't regulated, but regulations ensure that pedestrians aren't blocked or harassed as they use the Fremont Street Experience.

"There's a very big difference in my mind between free speech and commercial activity," Victor said.

City Attorney Brad Jerbic was scheduled to present the ordinance Tuesday to members of the Recommending Committee, two City Council members who look at bills before they go to the full council. Because Jerbic couldn't be there, the committee will take up the ordinance again Aug. 3.

The ACLU first challenged a city ordinance restricting activities on Fremont Street in 1997. The ordinances were amended in 2006 and challenged again and were struck down by a federal judge last year.

While the city has used salaried staff attorneys to work on the cases, the Fremont Street Experience has retained its own private counsel and has paid any attorney's costs ordered by the court, city spokesman Jace Radke said.

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