Supreme Court rejects Venetian appeal

David Strow

Monday, March 4, 2002 | 11 a.m.

The Venetian's three-year legal battle to keep union protesters off its sidewalks came to a quiet end this morning when the U.S. Supreme Court refused to consider the resort's appeal of a circuit court decision.

The high court offered no comment in rejecting the Venetian's appeal. The decision let stand a July ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that stated that sidewalks in front of Las Vegas resorts are public forums protected under the First Amendment.

"The Supreme Court is the ultimate law of the land, and they (the justices) decided not to hear (an appeal) of the 9th Circuit decision," said Allen Lichtenstein, general counsel for the Nevada chapter of the American Civil Liberties Union. "It's the only sidewalk there, it's a public forum, and there can be no question about that."

Like many Strip resorts, the Venetian owns the sidewalks in front of the resort. However, the sidewalks typically provide the only means for pedestrians to pass along Las Vegas Boulevard in front of the resorts, so they are kept open to public access. This was the case with the Venetian, which agreed in 1999 to give the public access to its sidewalks after removing a publicly owned sidewalk.

But Strip resorts have attempted to control what activities occur on these sidewalks before -- such as barring so-called smut peddlers from distributing sex industry advertising. In 2000 the Nevada Supreme Court ruled that the Mirage and Treasure Island had the right to keep handbillers off its sidewalks, despite provisions for public access.

In this decision, the state high court said "private property does not lose its private nature because it is open to the public."

But the 9th Circuit decision, and the Supreme Court's refusal to overturn it, supersedes that ruling, Lichtenstein said -- and has ramifications for protesters and handbillers alike.

"We would hope Nevada courts would look at this decision and say, 'The Supreme Court seems to feel they (the sidewalks) are a public forum," Lichtenstein said. "The idea that it's a public forum for one purpose but not another purpose is incorrect."

But MGM MIRAGE doesn't intend to change its policy because of the 9th Circuit decision, a company spokesman said this morning. Union protesters will continue to be permitted on company sidewalks, but not handbillers.

"We did not ever attempt to keep people from expressing their First Amendment rights," Alan Feldman, a spokesman for MGM MIRAGE, said. "What we objected to was someone selling a service, a product, on our property. I don't think this ruling will affect us in any way. We'll continue to keep people from using our sidewalks for commercial speech. We will continue to keep them off."

In 1998 the 9th Circuit ruled that a Las Vegas company had the right to distribute adult entertainment handbills on sidewalks along the Strip. The county responded the next year by proposing an ordinance that bans the distribution of fliers that "primarily propose a commercial transaction" on public sidewalks. This ordinance is pending before federal district court.

"To the extent that the county can regulate handbilling, it (the 9th Circuit decision) doesn't make any difference," said Clark County Assistant District Attorney Mike Davidson. "It allows us to regulate if we choose to, on those public sidewalks (on the Strip), just as we can regulate any other public sidewalk."

The type of speech also makes a difference under First Amendment law, Davidson said.

"Commercial speech does not have as much protection as political speech," Davidson said. "The county's concern has always been that there are health and safety issues related to these canvassers."

The Venetian's legal battle began on March 1, 1999, when 1,300 Culinary Union members picketed outside of the Strip resort. The Venetian called Metro Police, and demanded the union members be removed for trespassing.

But Metro officers refused to issue citations at the advice of Clark County District Attorney Stewart Bell, who believed the sidewalks constituted a public forum. The Venetian quickly filed a federal lawsuit seeking an injunction against the union.

U.S. Judge Philip Pro refused to issue an injunction, and the Venetian appealed to the 9th Circuit. In July the circuit court upheld Pro's ruling by a 2-1 vote.

"Even if the Venetian were to close its doors or to be converted into a members-only club or some other nonpublic enterprise, members of the public would still have the recorded right to pass across the Venetian property along Las Vegas Boulevard and to express themselves as they do so with the same freedom as on any public sidewalk," wrote Circuit Judge Proctor Hug Jr. for the majority.

In its appeal, the Venetian argued this ruling "impairs the most basic rights of private property."

The 9th Circuit decision only serves as binding precedent within the nine states covered by the appeals court: California, Oregon, Washington, Nevada, Idaho, Montana, Arizona, Alaska and Hawaii. But the Supreme Court's refusal to hear the case should have effects across the country, Lichtenstein said.

"The Supreme Court's denial indicates it did not want to disturb that 9th Circuit decision," Lichtenstein said. "For the rest of the country, that's pretty persuasive."

Venetian and Culinary Union officials could not be reached for comment this morning.