Oct. 21, 2002

Can you protest in a public mall?

Las Vegas case tests the limits of free speech in enclosed shopping areas backed by public money.

By Steve Friess | Special to The Christian Science Monitor

LAS VEGAS – Amy Donaldson was drumming up support for legalizing medical marijuana. The Rev. Mike Robinson was out recruiting on behalf of Jesus Christ. The casinos and the cops would have none of either.

Both have been arrested in the past at a Las Vegas mall known as the Fremont Street Experience, a public- private partnership in which the city contributed $27 million. The area, once an ordinary city street, is now a pedestrian walkway with a canopy partially enclosing a strip of casinos on either side. In that new realm built to amuse, the city and the casinos believe Ms. Donaldson and Mr. Robinson have no First Amendment rights to heckle the tourists.

But others say that the infusion of government funds and property into the project makes it a public space where free speech should be allowed.

The case, now before the ninth Circuit Court of Appeals, is the latest of several disputes making their way through courts across the country that will test the limits of free speech in public-private partnerships.

These joint ventures are becoming more popular across the nation as a means of helping governments revitalize cities. Yet these projects have "somewhat blurred the line between property which would be considered completely private but for the infusion of public funds, and what is public property," says attorney John Sheron. In 1998, Mr. Sheron helped convince the Minnesota Supreme Court that the Mall of America is not a traditional public forum despite the public funds used to develop it.

A clash of ideals

Both sides see the loftiest of stakes in the balance. City officials fear the private sector won't invest in such endeavors if they are to going to become a place for protesters to disrupt business. The American Civil Liberties Union (ACLU) worries cities will sell public spaces that could be used as outlets for free-speech activities.

"These are questions of property law, contract law, and constitutional law all coming together," says Greg Smithsimon, a sociologist at Columbia University in New York, who studies such dilemmas. "How do the First Amendment guarantees apply? It's stuff in flux."

In the case of Fremont Street, now a popular tourist attraction featuring hourly light shows set to Elvis or Enya tunes, the city ceded control to the private Fremont Street Experience Limited Liability Corporation (LLC) and banned protests and solicitation.

That kicked off the legal battles. A federal judge in Nevada ruled last year that the LLC must allow free-speech activities, but can bar solicitors such as beggars or handbillers for sexual services. The ACLU appealed, leading to a court hearing last week before the ninth Circuit Court of Appeals.

"Just because some property is publicly owned doesn't make it a public forum," says Todd Bice, the LLC's attorney. "If the court disagrees, it would spell financial disaster for the facility. People won't come down there to get accosted by handbillers."

Nationwide, similar disputes

Similar legal disputes are bubbling up elsewhere, leading to speculation the US Supreme Court may eventually settle the question. The most analogous case to Fremont is a lawsuit over Lincoln Center Plaza in Manhattan. The common space between the Metropolitan Opera, Avery Fisher Hall, and the New York State Theater building replaced a slum area acquired by the city 40 years ago. It's in court now because a labor union was kept from distributing literature in 1999 amid a dispute with a food-service contractor operating in the buildings.

This case also awaits a verdict, in this instance from the second Circuit Court of Appeals. A lower court held that Lincoln Center Plaza is a space for use by arts patrons and not the general public, so it's not a traditional public forum.

ACLU attorney Mark Lopez believes both Lincoln and Fremont are historically public because of their prior uses and because they each constitute part of the transportation grid for pedestrians. "The [9th Circuit justices] really pressed the [LLC] attorney and city's attorney as to why this isn't the same as any other main street downtown," he says of last week's session.

An ACLU victory last week in a somewhat different case may bolster the free-speech arguments for Fremont and Lincoln. The 10th Circuit Court of Appeals ruled unanimously that a walkway through Main Street Plaza in Salt Lake City is a traditional public forum even though the Mormon Church bought the land from the city for more than $8 million.

At that time it was a four-lane boulevard, but the road was closed and the church built on it a plaza with a statuary, religious signs ,and reflecting pools. Salt Lake City and the church agreed that the public could pass through the property but the church could restrict free-speech activities on the walkway. The court ruled otherwise. The church asked for a rehearing which, if denied, would leave them with a choice to appeal to the U.S. Supreme Court.

"If this stands, there won't be any public-private partnerships anymore anywhere," church attorney Von Keetch warns. "Nobody's going to say, 'Yeah, we'll do all this stuff to beautify an area and give the public the right to use it.' The property owner will be risking creating a full-blown public forum."

Ramifications of Salt Lake City's case

Lopez, who argued that case against Mr. Keetch, says the case is an important one. If the Main Street Plaza is a public forum – even though it is on private property – then Lincoln and Fremont must be public forums, he reasons, because they serve similar functions but are on public land.

Observers are anxious to see if these cases wind up at the highest court so that other cities will have clear guidelines on the matter as they seek to revitalize themselves.

"The Supreme Court has never actually said whether a state can take a traditional public forum and convert it into a private forum," says Richard Saphire, a law professor at the University of Dayton, Ohio. "They ought to make it clear."

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