The First Amendment in Las Vegas
When it comes to the viewpoint discrimination or other aspects of the First Amendment, Darren Chaker, does not question that “[F]ree speech is certainly incidental to pedestrian traffic, for as the Supreme Court has noted, streets and sidewalks are the archetype of a public forum,” Id. at 30, citing Frisby v. Schultz, 487 U.S. at 480. This Las Vegas case, American Civil Liberties Union of Nevada v. City of Las Vegas (9th Cir. 2003) 333 F.3d 1092, involves the Fremont Street Experience Mall, an outdoor commercial entertainment venue built by the City and its private partners at a cost of tens of millions of dollars. The Mall was built over five lots of what was formerly known as Fremont Street in downtown Las Vegas. Surrounded mostly by Hotel/Casinos, the Mall itself is a tourist destination, showcasing an overhead canopy which functions as probably the world’s largest television. The Mall’s Management regularly provides entertainment, including free concerts, retail kiosks and stands that provide goods and services to visitors throughout the day and night. In a challenge to the City’s anti-solicitation ordinance that (1) is limited to a discrete geographic area, including the Mall; (2) was designed to preserve the character and viability of the Mall as a commercial entertainment venue; and (3) prevents unfair competition against retailers who have paid for the right to conduct business in the Mall.
Streets, sidewalks and parks are the archetype of a traditional public forum and held in trust for public use for purposes of assembly and expression. In a traditional public forum, restrictions on First Amendment activities are subject to strict scrutiny. Although reasonable time, place, manner restrictions may be constitutionally imposed, complete prohibitions against First Amendment activity are disfavored. By contrast, in non-public fora, such as a municipal airport or train station, regulation of speech is subject to a lesser standard and restrictions. Even in a non public forum, however, protected expression cannot be banned unless it can be shown that the speech in question is incompatible with the use and purpose of that locale. In this case, the District Court held that Fremont Street is not a public forum and upheld the solicitation ordinance and tabling restrictions under the reasonableness standard applicable to nonpublic fora.
The Fremont Street Experience encompasses thoroughfares that are an integral part of the transportation grid of downtown Las Vegas. To the casual visitor, the Fremont Street Experience does not look any different from the outdoor pedestrian malls that have become commonplace in cities nationwide. It represents efforts of City officials to bring business back downtown from suburban malls, the “Las Vegas Strip” and outlying areas where casinos flourish – however such efforts to redevelope the area cannot come at the cost of the First Amendment in Las Vegas, or anywhere else.
Streets and sidewalks are the quintessential examples of the traditional public forum. See Frisby v. Schultz, 487 U.S. 474, 480, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). See also Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988); Cornelius v. NAACP Legal Defense and Educational Fund, 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); Venetian Casino Resort v. Legal Joint Exec. Bd., 257 F.3d 937, LEXIS 15577 at 13 (9th Cir., 2001).