Appeal of free speech ruling looms

Sito Negron

Thursday, Sept. 18, 2003 | 9:05 a.m.

The U.S. Supreme Court could be the next step for the debate over free speech at the Fremont Street Experience, as the Las Vegas City Council on Wednesday unanimously approved authorizing its attorney to appeal a decision declaring the pedestrian mall a public space.

The case, which has been ongoing for about six years, started when pamphleteers -- anti-nuclear demonstrators and advocates for the homeless -- were banned by the private operators of the Fremont Street Experience.

The Las Vegas chapter of the American Civil Liberties Union stepped in, saying that Fremont Street was a public space and speech could not be curtailed.

The Fremont Street Experience operators said that the city had ceded the street, and it no longer was public space in which free speech could not be curtailed. The city backed the Experience, arguing that the operators needed to be able to create an environment in which tourists could be free of harassment. The public interest of reinvigorating downtown outweighed the other considerations, the city said.

A District Court ruled in favor of the ACLU by saying the city and the Experience could not halt noncommercial speech; however, the ruling also said that the street no longer was a public place.

Both the ACLU and the city appealed, the former on the public space issue and the latter on the speech issue.

The 9th U.S. Circuit Court of Appeals decided in July that the city's $70 million investment, which included closing the street to vehicle traffic and adding the canopy above, did not change Fremont Street's designation as a public place. The city had declared the concrete and asphalt area a public park to allow it to qualify for millions of dollars of public money.

"The net result of this opinion ... is the city will lose control of the environment necessary for Fremont Street to be commercially viable," City Attorney Brad Jerbic told council members.

The Supreme Court takes very few of the cases presented it. If it does take the case and the city loses, it would be liable for attorney fees. Currently the city is using its own lawyers, as well as a team being paid by the Fremont Street Experience.

Allen Lichtenstein, who is representing the ACLU in the case, said he didn't know how much in fees he's racked up since the case started, "but it's many thousands."

Mayor Oscar Goodman said he doesn't want Fremont Street plagued by leafleteers like those on the Strip, who press flesh ads into the hands of passersby. If the city and the Fremont Street Experience lose the appeal, protesters and others will be allowed to hand out political handbills and collect signatures. However, commercial speech, such as handbills for escort services, also will be protected.

"They couldn't stop it on the Strip. I don't know if we can stop it," Goodman said. "If the Supreme Court says, 'No, city, you're wrong,' we did the best we could."

Lichtenstein said that however well-meaning the city may be in terms of revitalizing downtown, it cannot substitute economic rights for the fundamental right of free speech.