Friday, July 18, 2003 | 10:22 a.m.
Las Vegas has filed an appeal of a recent federal appeals court ruling defending individuals' constitutional right to pass out leaflets and sell certain items at the Fremont Street Experience.
Mayor Oscar Goodman at his weekly news conference Thursday said when the final ruling is made the issue will come down to whether the Fremont Street Experience is a public entity or a private entity.
Goodman said in the 1960s the U.S. Supreme Court found that shopping centers were public forums, but over the years the high court has changed that opinion to reflect that they are private businesses.
Goodman also said he has received numerous calls from people who do not know the Strip is not within the city limits but complain about escort services and others forcing their fliers on them as they walk by with their families.
Mark Paris, president of the Fremont Street Experience, said his agency also is filing court papers to support the city's challenge.
"Fremont Street is not a street anymore and not a public forum," Paris said. "We have three stages for live entertainment, a canopy and a number of small retail carts that are the sole income for some families. We are a mall."
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled just prior to Independence Day that the transformation of "sleazy" Fremont Street into the "glamorous" Fremont Street Experience does not trump the First Amendment.
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 say the policies prohibit First Amendment activity such as charitable soliciting, distributing literature, picketing and selling message-bearing merchandise.
The 19-page city appeal, calling for an "en banc" hearing -- a new hearing with 11 judges instead of three -- takes issue with the appeals court's ruling that "the Fremont Street Experience is still a street."
"Respectfully, this assertion has no basis in fact and underscores how far the panel has reached to overrule the district court," the city said in its appeal.
"There can be no serious suggestion that the Fremont Street Experience is the equivalent of a public street or sidewalk. Public streets do not have megawatt speakers playing music around the clock, nor the world's largest video screen hanging over them."
The city's brief further argues: "The Fremont Street Experience hosts a number of special events with attendance ranging from 45,000 to 75,000 people. As a commercial enterprise that is required to generate revenue to cover its $6 million to $10 million annual operating expenses, it also has over 28 retailers in operation within the facility."
The city further argues that the 2nd U.S. Circuit Court of Appeals found in Hotel Employees & Restaurant Union v. City of New York Department Parks and Recreation that the Josie Robertson Plaza at Lincoln Center, similar to the Fremont Street Experience, was not a public forum.
"The 2nd Circuit correctly noted that its analysis must go beyond the property's description to consider the property's purpose," the city wrote in its appeal. "It concluded that the Plaza was not a public forum even though it was used by pedestrians to access surrounding streets."
Gary Peck, executive director of the ACLU of Nevada, said the 9th Circuit took a lot of issues under consideration and came up with a decision that strongly supported the ACLU's longstanding claims.
"We have read the city's papers and are confident they are not persuasive enough for the 9th Circuit to even ask us for a response," Peck said. "The three-judge panel's ruling was consistent with legal precedent and could not have stated more persuasively the reasons why Fremont Street is a public forum.
"It is long past time for city officials to stop wasting taxpayer money by endlessly trying to defend the indefensible. They ought to learn to live with the freedoms that are protected by our Constitution."
In agreeing with the plaintiffs, the appellate court's unanimous ruling overturned U.S. District Judge David Hagen, who in 1998 had ruled that the public mall was not a public forum.
The ruling means that the people, such as those who traverse the Las Vegas Strip handing out fliers for everything from escort services to churches, should now be allowed to do the same at the Fremont Street Experience.
Hagen had ruled the Experience was a nonpublic forum because it was created for the main purpose of stimulating economic growth and "not for the purpose of promoting expression."
Hagen also had 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 at the Experience.
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