Editorial: Free speech wins in sidewalk issue

Tuesday, March 5, 2002 | 8:48 a.m.

The U.S. District Court and the 9th U.S. Circuit Court of Appeals have said over the past three years that picketers cannot be tossed off the sidewalk in front of the Venetian. Nevertheless, the Strip hotel pressed its case all the way to the U.S. Supreme Court, holding forth that its private ownership of the sidewalk gave it control over the activities of people using it. Monday, the Supreme Court decided not to hear the case, which means the lower-court rulings will stand.

The Venetian based its opinion on an agreement it signed in January 1999 with the Nevada Department of Transportation, which had determined that the Strip needed widening to accommodate the megaresort. As part of that widening, the public sidewalk had to be torn out and NDOT allowed the Venetian to build and own the new sidewalk as long as the public had access.

On March 1, 1999, two months before the Venetian opened as a non-union hotel, 1,300 Culinary Union picketers protested on the sidewalk. The Venetian then revealed its definition of public access. The public that would use the sidewalk to enter and spend money would be welcome. But the public that wanted to picket in favor of union labor was unwelcome. So unwelcome that the Venetian called the cops, who responded but made no arrests because they weren't sure if the picketers were indeed trespassing. The American Civil Liberties Union of Nevada supported the picketers, saying they were on a public thoroughfare and had the right to express themselves. To clarify the issue, the Venetian began legal proceedings.

What had been a gray area is now crystal clear. While the rights of those who wish to engage in commercial speech on quasi-public sidewalks remain murky, non-commercial speech is protected. The Venetian needs to take note of the Supreme Court's inaction Monday and engage in some inaction of its own the next time there's a union rally.