Ruling bans Fremont solicitation

Eric Leake

Tuesday, March 8, 2005 | 10:42 a.m.

The Fremont Street Experience is a place for people to exercise their freedom of speech -- but not if they're doing it to make a buck, U.S. District Judge David Hagen has ruled.

In the ruling Hagen issued Friday, he agreed with Las Vegas' lawyers that solicitation can be banned at the pedestrian mall. But Hagen also said that the city can't prevent groups from setting up tables to distribute information.

The American Civil Liberties Union, the plaintiff in the case, will appeal the ruling on solicitation, Allen Lichtenstein, the group's lawyer said.

"The city's definition of solicitation covers the passing out of any material that has any commercial content at all," Lichtenstein said. "It bans all sorts of peer communication."

He said the ban applies to any group asking for any money or other donations.

"By definition, your newspaper could not be passed out on the Fremont Street Experience," Lichtenstein said.

City attorneys did not receive a copy of the ruling until late Monday afternoon and issued a statement on the judge's decision in lieu of answering questions.

"The city is very pleased that the court has held that the city's regulation of solicitation within the Fremont Street Experience is a valid time, place and manner restriction which comports with the First Amendment," William Henry, senior litigation counsel for the city, wrote.

The debate over the use of the Fremont Street Experience as a public forum has been under way since the city spent $70 million to enclose the downtown stretch under a canopy of lights. The project was completed in 1995.

The city prohibited people from passing out handbills, vending, soliciting, or setting up temporary tables on the former street. The ACLU and others filed a civil rights lawsuit in 1997 against the city's policies.

The 9th U.S. Circuit Court of Appeals ruled that the attraction is a public forum and told the federal court to work out the particulars in light of that decision.

Hagen, the U.S. District Court judge, decided that although solicitation is a recognized form of speech protected by the First Amendment, the city has sufficient reason to restrict it as it undermines the economic vitality and comfortable environment of the attraction.

He ruled the tabling ban unconstitutional, noting that the city made provisions for labor causes to set up tables while prohibiting other groups, which violated the Equal Protection Clause of the 14th Amendment.

Lichtenstein said that the ruling applies immediately.

"One can go out there and set up an informational table tomorrow," he said.

He said that while he agrees with the judge's decision on the tabling ordinance, the same logic could apply to groups presenting information with a commercial content.

"It's clearly a content-based regulation and we believe it is unconstitutional and the next circuit will find it as such," Lichtenstein said. "The laws are supposed to be not involved with the particular content."

Lichtenstein would not estimate how much litigation over the issue has cost the city and the Fremont Street Experience, but said it's definitely in the six figures.

Should the city want to come to an agreement outside the courts, he said, "we're always willing to talk."