cont.
Courts have long held that sidewalks are constitutionally protected forums for public opinion. Generally, as long as people are doing things that are otherwise legal, they can do it on the sidewalk. Vegas being Vegas, it's not that simple here.
In 1993, the city was forced to widen portions of Las Vegas Boulevard, including the two-mile stretch known as the Strip that runs along the themed casinos, to accommodate soaring traffic, new resorts and growing tourism. As a result, new sidewalks had to be built on private property in front of large and powerful casinos. Increasingly, the casinos attempted to control the activity on the sidewalks.
The following year, after 500 labor protesters were arrested for trespassing because the MGM Grand complained, civil libertarians launched their fight. It led, eventually, to a lawsuit against the casinos, and in 2001 a federal appellate court sided with a different group of labor union protesters, ruling that the sidewalk in front of the Venetian resort was a public forum though it was on private property.
"What the court said, basically, is that if it looks like a sidewalk, smells like a sidewalk and functions like a sidewalk, then by golly it's a public sidewalk," said Gary Peck, executive director of the Nevada ACLU.
Early this year, however, it became clear that casinos, private security firms and some police officers weren't aware of the ruling — or were choosing to ignore it. Casino security repeatedly told the preachers that they were on private property and needed to leave. Police officers insisted that the preachers move even after the preachers produced copies of the court opinion. Griner was even cited with obstruction, a misdemeanor, for blocking the sidewalk.
Griner and fellow preacher Jim Webber began videotaping their encounters with security personnel and police officers. Peck and Allen Lichtenstein, Nevada ACLU's general counsel, became a free-speech SWAT team, descending on the Strip on a moment's notice to make impassioned, impromptu arguments that the preachers could stay — confrontations that drew crowds of curious tourists.
Earlier this year, security guards at New York-New York, a resort with a miniature facsimile of Manhattan's skyline, evicted an Iraq war protester. Such incidents — and the ACLU's argument that Las Vegas was sacrificing constitutional rights to guard its carefree image — caught city leaders' attention.
Alan Feldman, a senior vice president of MGM Mirage, which owns the MGM Grand and New York-New York, conceded that the casino had erred.
"We made a mistake," Feldman said. "It was an emotional time. Our staff reacted emotionally instead of remembering the way the law works."
The Metropolitan Police Department also acknowledged that it has had a difficult time balancing public rights and property rights.
The department had been accused repeatedly of protecting the casinos at the expense of the public, and Sgt. Mark Reddon, a supervisor of officers who patrol the Strip, said some officers had been too aggressive in attempting to evict the preachers and others from sidewalks. But he said the department also must be careful not to let free expression go overboard.
"We wouldn't want a theater group," he said, "whose freedom of speech gives them the right to go into a supermarket setting up a stage in there and starting a play."
In recent months, all sides began operating under an agreement that for-profit enterprises would stay away from sidewalks that were technically private property. Advocates, such as preachers or protesters, can stay — with certain restrictions. For example, if preachers or protesters carry signs wider than the width of their body, officers may determine they are blocking foot traffic and ask them to move.
"We really have found a way to maintain the best of both worlds, where private property owners are not taken advantage of by commercial interests, the public is not preyed upon by commercial interests and those who wish to express an opinion or political perspective are given access," Feldman said.
The ACLU does not agree, Peck said, that there should be a distinction between the rights of for-profit enterprises and nonprofit advocates. He said there were new free-speech battles on the horizon, such as a dispute over where news racks can be installed. And he said he was not convinced that the preachers would not be harassed again.
But for now, the long campaign to win 1st Amendment rights for people who want to express an opinion here appears to be winding down, Peck said. And the Police Department soon expects to complete pamphlets that will be passed out to advocacy groups and casinos spelling out the advocates' rights.
"The pamphlet is meant to guide both sides," Reddon said. "It is meant to explain to casinos and security that people have the right to express their 1st Amendment rights on those sidewalks. It is also designed to explain to those people out there that there are limits to their rights — that just because they can express an opinion does not mean they can disrupt business."
The preachers are well aware that pedestrians on the Strip frequently view them as annoyances. And that is precisely the point, Lichtenstein said. People have long demonstrated or passed out protest literature on sidewalks. Once a business can control the activities of people on its stoop, Lichtenstein said, "it means that someone may or may not be able to speak — depending on whether someone else likes the message."
"If the sidewalks are lost we have lost a very serious component of our constitutional freedom," he said. "The preachers have been looked at as pushing a message that the casinos don't want on their sidewalk. The problem is, it's not their sidewalk. And they can't choose the message."
