Although a federal judge found Salt Lake City's sale of a block of Main Street to the LDS Church "raised serious concerns" about constitutionally protected free speech, he still ruled against the American Civil Liberties Union in its lawsuit challenging the $8.1 million deal.
U.S. District Judge Ted Stewart granted on Tuesday the city and the church's request for summary judgment in a case, he said, that pitted the rights of private property ownership against freedom of expression.
Since its sale, "the property in question is no longer a public forum," the judge ruled, and there is no constitutionally protected right of speech on "private property belonging to another."
In negotiating the sale of the Main Street block between South Temple and North Temple in April of 1999, the city and the church agreed to allow 24-hour public access.
But a public easement restricts the use of alcohol and tobacco on the property and bans "loitering, assembling, partying, demonstrating, picketing" and engaging in any "illegal, offensive, indecent, obscene, vulgar or disorderly speech, dress or conduct."
Stewart said since no one has been removed from the plaza for such conduct — or at least contested such a removal — there was no "direct or immediate dilemma" in the case.
Instead, his decision boiled down to an "abstract" balancing of the rights of free speech against those of private property ownership.
ACLU attorney Stephen Clark said the organization will likely appeal the case.
"And nothing today would prevent subsequent lawsuits against the church by individuals," he said.
But the original suit was filed only against the city, claiming the easement restrictions the City Council approved should be struck down on constitutional grounds.
A year ago, Stewart allowed The Church of Jesus Christ of Latter-day Saints to defend its property rights and become an intervening party in the lawsuit.
The ACLU filed the suit on behalf of the First Unitarian Church, Utahns for Fairness and the National Organization for Women.
Utahns for Fairness chairman Jared Wood stridently disagreed with Stewart's decision, saying Tuesday that the judge had given approval to "our City Council giving away our First Amendment rights."
Wood said the ruling now allows the LDS Church "to say horrible and untrue things about gays and lesbians. If the church ends up broadcasting general conference in the plaza like they do on Temple Square, we're now about to hear messages of hate and intolerance on Main Street."
But in oral arguments before Stewart prior to his ruling, LDS Church attorney Von Keetch said the easements were not "viewpoint discriminatory but owner discriminatory" and pointed out that 2.5 miles of public walkways around church property are still available for protests and picketing.
Stewart agreed, saying the easements give an "incidental benefit to religion" since the owner of the property is a church but do not promote religion as a "principal effect."
The church never would have purchased the property without the ability to control the "ambiance and atmosphere" of the plaza, Keetch said.
It is the centerpiece of "the international headquarters of the church," he said. "And (the plaintiffs) want to bring the hurly-burly of the marketplace to this plaza. That is fundamentally unfair to the purchase of this property."
Clark disagreed. "What is at risk here is all of our First Amendment rights to cherished public spaces," he said.
Public "tumult" is more likely on the plaza now that the judge has ruled against the case, Clark argued, than if the easements had been lifted or modified somehow.
Officials for Salt Lake City said they would be disappointed in an appeal of the case, especially since, up to this point, the city has been able to utilize in-house counsel to defend itself.
"We'd prefer to have this over," said attorney Roger Cutler. "We'd rather spend our resources elsewhere."
Cutler said the judgment was prompt and complete with the judge "acknowledging that city officials acted appropriately" in negotiating the sale of the land.
Church officials were equally pleased with the ruling.
"We were all somewhat surprised that the judge was prepared to make a decision yesterday, but we're happy, of course, and grateful for it," said Presiding Bishop H. David Burton. "We continue to hope people will avail themselves of the plaza and feel the ambiance there. We invite everyone to come to enjoy it."
E-MAIL: mtitze@desnews.com