The Venetian hotel and casino in Las Vegas knows how the LDS Church must feel.
The resort casino has similarly had its claimed property rights clouded by court decisions favoring free speech.
In fact, the 10th U.S. Circuit Court of Appeals relied heavily on a case from the 9th U.S. Circuit Court of Appeals involving the Venetian when it ruled against the church and Salt Lake City in the Main Street Plaza case last week.
"Both courts ruled that the key fact in both cases is not who owned the land but what was the public function of the sidewalk," said Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada, which fought the Venetian in court.
In the Salt Lake case, the city sold a block of Main Street to The Church of Jesus Christ of Latter-day Saints in 1999, making many critics furious about the secrecy that surrounded the negotiations.
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With Salt Lake City's First Unitarian Church among its clients, the ACLU sued the city over the sale, which gave the church the right to control conduct, dress and speech on the Main Street block while guaranteeing 24-hour public access through the plaza. Access was ensured through a city easement.
In Utah, U.S. District Judge Ted Stewart ruled against the ACLU. Then a panel of the 10th Circuit in Denver reversed the decision.
The case in many ways mirrors one filed by the Venetian in 1999. The outcomes of both cases have left many scratching their heads — including William Coleman Jr., an attorney and former secretary of Transportation under President Ford. Coleman served as co-counsel for the Venetian in its suit.
"If you own private property, even though you will let certain people walk across it, you have the right to stop them when you want," Coleman said. "You have the right to regulate what they might say on it."
In cases of private property rights, "the First Amendment is irrelevant," Coleman argues, since the amendment is meant to apply to government, not the private sector.
LDS Church attorney Von Keetch is similarly baffled at the idea that "a non-possessory right to walk across the land has somehow created a full-blown public forum."
Federal courts, however, have disagreed.
For example, take the Venetian.
In the '90s the Venetian purchased a public sidewalk along Las Vegas Boulevard, a k a the Las Vegas Strip.
The Venetian subsequently tore up the walk and then rebuild it as part of its spiffy entry way fronting The Strip. The new sidewalk had a dual purpose: allow people access to the casino and accommodate pedestrian traffic along the boulevard.
Then, to The Venetian's dismay, union workers unhappy with the casino's employment practices picketed on the new sidewalk.
The Venetian sued to force union picketers off the sidewalk, arguing that the hotel had the right to regulate speech on what the casino considered a walkway that it owned.
Eventually, the case went to the 9th Circuit Court of Appeals, which ruled against the Venetian 2 to 1.
The court found that since "the sidewalk is used to facilitate pedestrian traffic in daily commercial life along the Las Vegas Strip generally and not merely to provide access to the Venetian for its patrons," it is a public forum and the First Amendment is applicable.
Venetian lawyers appealed to the U.S. Supreme Court, which declined to hear the case in March.
Still, Coleman maintains the issue needs to be decided by the Supreme Court, and Salt Lake City's Main Street Plaza case might carry that far.
"The question is still open, and we hope someday to get the Supreme Court to take it, and I think it will be reversed," Coleman said.
However, there is other case law stacked in favor of the ACLU and against private property interests.
The bellwether case concerns a group of animal rights activists who sued the owner of Boston's Faneuil Hall Marketplace for the right to protest.
In that case, the 7th U.S. Circuit Court of Appeals held that even though Faneuil Hall was owned and leased by a private organization, it remained a public forum because the marketplace — dating back to colonial times — "was an area traditionally used for public assembly, was dedicated to public use and was indistinguishable from the surrounding public streets and sidewalks."
In arguing in favor of banning certain activities from privately owned land, the LDS Church, Salt Lake City and the Venetian have relied on case law surrounding shopping plazas, akin to strip malls.
In those cases, courts have ruled that sidewalks in enclosed shopping centers are not subject to the First Amendment. Businesses therefore have been able to ban protests on such walkways.
Courts have determined that since the strip mall sidewalks are used solely for the purpose of accessing those businesses, they are not public forums.
But former ACLU attorney Stephen Clark maintains those cases differ from the Main Street Plaza, Venetian and Faneuil Hall cases. The courts have seemingly agreed, ruling against private property owners all three times.
In the three cases, the disputed walkways serve as paths for the walking public beyond those simply visiting the owner's property or business.
As the court ruled in the Faneuil Hall Marketplace case, "many pedestrians wholly uninterested in the marketplace's offerings cross its lanes daily in traveling to the waterfront."
That's why other downtown locales like The Gateway or Trolley Square may or may not be considered public forums, depending on whether a court would consider them thoroughfares.
Salt Lake Mayor Rocky Anderson continues to work for a solution to the Main Street Plaza situation. The church would like to reinstate its regulations, and Anderson is investigating whether there is any way to appease the church's wishes while obeying the U.S. Constitution. A second closed-door meeting with professors and church and city leaders is set for Monday at 3 p.m.
E-mail: bsnyder@desnews.com