Saying that the transformation of "sleazy" Fremont Street into the "glamorous" Fremont Street Experience does not trump the First Amendment, a federal appeals court has ruled that people have the constitutional right to pass out leaflets and sell certain items in the pedestrian mall.
City ordinances prohibit the passing out of leaflets, vending, solicitation and the temporary installation of tables, booths or stands unless authorized by the Fremont Street Experience.
Those restrictions prompted the American Civil Liberties Union of Nevada and others to file a civil rights lawsuit in 1997. They complained the policies prohibit First Amendment activity such as charitable soliciting, distributing literature, circulating petitions, collecting signatures, picketing and giving away or selling message-bearing merchandise.
The 9th U.S. Circuit Court of Appeals agreed with the plaintiffs Wednesday. The appellate court overturned U.S. District Judge David Hagen, who had ruled that the public mall was not a public forum.
"This is really a victory for the public because that's whose rights were being violated," ACLU attorney Allen Lichtenstein said. "There may be a light show and some new tiles on the sidewalk, but that doesn't change the fact that it is a public forum."
The unanimous three-judge ruling, written by Judge Richard Paez, states that leafleting and the sale of merchandise that carries a political, religious, philosophical or ideological message is protected.
The ruling means that the people who hand out fliers for everything from escort services to churches on the Las Vegas Strip can now do the same at the Fremont Street Experience.
The appeals court also directed Hagen to take another look at the city ordinances that prohibit solicitation and the possibility of setting up tables in light of the decision that the experience is a public forum.
The ACLU was joined by the Shundahai Network and the Unitarian Universalist Social Justice Committee in filing the suit against the city of Las Vegas and the Fremont Street Limited Liability Corp., which operates the Fremont Street Experience.
Officials of the Fremont Street Limited Liability Corp. said that the ruling that the mall is a traditional public forum is incorrect.
"Legal counsel for the Fremont Street Experience and the city of Las Vegas are looking at the decision and once they have fully assessed it, we will be in a better position to determine our options, including requesting that the entire 9th Circuit review the matter," Fremont Street Experience President Mark Paris said in a prepared statement.
Las Vegas City Attorney Brad Jerbic said that at the time the Fremont Street Experience canopy was erected, the city made it "very clear" in its ordinances that that section of Fremont Street had been converted from a public street, and that those ordinances were drafted to address the issues of operating it under private management.
"This is just one piece of litigation in a line of litigation that is continuing -- a litigation where the city has more victories than losses," Jerbic said. "We've come a long way, and we probably have a long way to go."
Jerbic said he will advise the City Council of its options to determine how the city will proceed.
The city and downtown casinos cooperated in 1995 to turn Fremont Street into a pedestrian mall covering four blocks with a canopy that serves as a screen for a light show. The city even classified the street as a park in order to appropriate park funds for the project.
But in a 1998 order Hagen ruled the Experience was a nonpublic forum because it was created for the main purpose of stimulating economic growth "not for the purpose of promoting expression."
Hagen ruled, however, that that the distribution of leaflets and the vending ordinance were likely unconstitutional. But he granted the city a summary judgment against begging and setting up tables.
In Wednesday's decision Paez wrote, "The use and purpose of the Fremont Street Experience support the conclusion that it is a traditional public forum. Despite its expensive make-over, the Fremont Street Experience remains a public thoroughfare.
"The addition of entertainment does not alter the fact that it remains a public thoroughfare and a shopping and gambling district," Paez said.
Gary Peck, executive director of the ACLU of Nevada, handed out leaflets in the mall in 1997 to protest the city's ordinances.
"We at the ACLU are thrilled at the decision and how strongly it is worded," Peck said. "The Constitution and the public's free speech rights have been vindicated.
"The city's defense has been incoherent, inconsistent and indefensible."
Fremont Street Experience officials said that because the 9th Circuit remanded the solicitation and table ordinances back to Hagen, the "status quo remains" on the mall.
"Any police officer or security officer who arrests someone based on the ordinances would face some civil liability," Lichtenstein countered. "I think anyone who gets arrests could sue and sue successfully."
Officials at the Las Vegas Visitors and Convention Authority had no comment on the decision or if the presence of people handing out adult-orientated material could hurt tourism on Fremont Street.
Las Vegas City Councilman Lawrence Weekly, who was not on the City Council in 1997, said he has always supported free speech.
"I was a tourist in (Washington) D.C. this past week and witnessed members of the Asian community protesting," Weekly said. "I pulled the car over so my children could watch what they were doing.
"I told them the people were marching for rights, as all Americans have the right to do."
Weekly said he opposes smut-peddlers pushing their materials in people's faces, especially as is often done along the Strip. But he said that probably will be an issue that now will have to be addressed for the Fremont Street Experience.
"The Fremont Street Experience generates revenue and we have to protect the integrity of that," Weekly said. "We (elected officials) are asked to represent people and we try to do the right thing.
"I'm for people having the right to protest, but I'm also for law and order, and for protesting to be done in a peaceful manner. Thank God we live in a country that allows people the right to express themselves."
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