Free speech to rule on Fremont Street

Jace Radke

Tuesday, Jan. 13, 2004 | 11 a.m.

The Fremont Street Experience remains a public forum after the U.S. Supreme Court refused Monday to hear a Las Vegas appeal designed to limit leafleteers and commercial speech.

"Federal courts have said unambiguously that streets and sidewalks are a public forum," said Allen Lichtenstein, an attorney for the American Civil Liberties Union of Nevada. "Whether it's on the Fremont Street Experience or on a sidewalk in front of The Venetian, these areas are public forums where free speech must be adhered to."

The case now reverts back to U.S. District Judge David Hagan, who originally ruled that the downtown pedestrian mall was not a public forum, but said handing out leaflets and selling message-bearing merchandise could not be banned.

The 9th U.S. Circuit Court of Appeals ruled that the mall was a public forum and remanded the case to Hagan to decide on the commercial speech portion in light of that decision. The Appeals Court decision upheld that passing out leaflets, circulating petitions collecting signatures and other First Amendment activities are not prohibited on the mall.

"We would have preferred to have had the Supreme Court hear the case, but now it will come back to the district court for a ruling," said Todd Bice, an attorney representing the Fremont Street Experience.

Bice said that security guards will not interfere with leafletting or other forms of First Amendment speech, but would not allow soliciting unless Hagan rules that commercial speech is allowed on the mall.

Lichtenstein said, "I'm confident that the judge will view the area as a public forum."

City ordinances prohibit the passing out of leaflets, solicitation, vending and the temporary installation of tables, booths or stands unless authorized by the Fremont Street Experience. Those restrictions prompted the ACLU and others to file a civil rights lawsuit in 1997.

City Attorney Brad Jerbic said that the Supreme Court's decision will likely hurt the environment at the pedestrian mall and could cause some ordinances to be changed.

"The ordinances were put in place to protect the mall, and without them it will be much more difficult to do that," Jerbic said.

City officials and the Fremont Street Limited Liability Corp., which operates the Fremont Street Experience, have expressed concerns about the mall being plagued by leafleteers like those on the Strip who hand out cards advertising escort services.

The city spent about $70 million enclosing Fremont Street with a canopy and closing portions of the street to vehicle traffic.

The cost of the city's appeal was not immediately available. The city has used its in-house attorneys on the case and has not paid fees to outside attorneys, Jerbic said.

When asked how many hours the city attorney's office had put in on the case, Jerbic said he didn't know. The Fremont Street Experience used its own lawyers.

Lichtenstein said the ACLU will seek attorney's fees from the city for the work on the appeal. The city had already been ordered to repay $86,000 in ACLU legal fees from earlier litigation in the case.

The 9th Circuit Court ruling should not hinder the annual New Year's Eve celebration on Fremont Street that includes a charge to the public to enter the mall, Lichtenstein said.

"Public streets can be blocked off for special events," Lichtenstein said. "I don't see anything in the decision that would prevent that."