Feel free to speak your mind … right over there

Sam Morris

Designating this free-speech area has worked to prevent landlords from soliciting people seeking rent subsidies inside a county office.

By Timothy Pratt

Friday, May 22, 2009 | 2 a.m.

Many of the hundreds of people who line up every day outside the main Clark County Social Service office pass under a mesquite tree as they inch closer to the agency’s door.

They take advantage of the shade it offers and pay no attention to the sign on its trunk: “Designated free speech area.”

Allen Lichtenstein, attorney for the American Civil Liberties Union of Nevada and a veteran of a decade of court battles on free speech, said he had not heard of another government agency anywhere creating such an area, or posting such a sign.

But how did it get there and what does it mean? The answer offers an unexpected lesson on private property, public rights-of-way and the First Amendment.

Nancy McLane, director of the county agency, said the sign appeared on the tree, outside the office at 9 Pinto Lane, when she went to work for another county agency for 16 months from 2006 to early 2007.

“I came back and asked, ‘What is that?’ ” McLane said.

Turns out the agency had a problem with landlords of low-rent apartments descending on the lobby, seeking to make tenants out of the needy waiting there to apply for rental assistance of $400 a month.

“They were rather aggressively trolling for clients,” McLane said.

People complained. So the agency decided to apply “Administrative Directive No. 4,” which among other things says the county “may allow ... free speech activity in designated areas of county property.”

The tree, overlooking a spot where the sidewalk turns a corner and leads to the office’s entrance, was chosen.

“We asked them to take it outside ... and the recruiting of clients in the lobby stopped,” McLane said.

To evaluate whether the sign infringes on First Amendment rights, Lichtenstein took a look at it and concluded “there’s no constitutional issue.” That’s because the sidewalk on one side of the tree and the parking lot on the other are county property and are used almost exclusively by people going to and from the social service office. So setting aside a place for people to engage in free speech activities — really, any kind of expression — is within the county’s rights, he said.

If the sidewalk the tree overlooks were more of a public right-of-way — like, say, the sidewalk in front of a Strip casino — the county would not be justified in limiting free speech to any one place, because the entire area would be considered a public forum. The ACLU of Nevada has fought over that very issue and prevailed, he said.

Similarly, when UNLV attempted to limit free speech to certain areas, the ACLU objected, arguing that the entire campus should be considered a public forum.

Still, on any given day, the mesquite’s cool shade, and not its sign, are what most people notice, waiting outside to enter the agency’s office hours at a time.

“The public probably doesn’t understand it,” Lichtenstein allowed. “But it’s good that the county has designated the area ... because we believe as much free speech as possible should be encouraged as much as possible.”