Monday, October 23, 2006
Court Strikes Down Ordinances Banning Solicitations, Setting Up of Tables at Downtown Promenade
By a MetNews Staff Writer
City ordinances barring solicitations and the setting up of tables in a downtown promenade area violate the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The ordinances were adopted by the City of Las Vegas as part of its effort to revitalize its downtown area. The city and contributing businesses had spent $70 million to create a five-block promenade, known as the Fremont Street Experience, to attract visitors.
But aggressive panhandling, solicitation, and handbilling had discouraged tourists and consumers from patronizing the area, the city said.
The ordinance banning solicitation prohibited any requests, whether written or oral, for charity, business or patronage, whether the request was for an immediate or future donation, at the promenade and other areas. A second ordinance banned the setting up of tables in the promenade area, but provided an exemption for labor-related activities.
Three American Civil Liberties Union members set up a table in the promenade, hung an ACLU banner from it, placed petitions on it, and handed out flyers. After security officers showed them the ordinance prohibiting tabling, and required them to remove the table, the ACLU and others filed suit.
The plaintiffs challenged the solicitation ordinance as invalid both on its face and as applied to them, claiming that it unconstitutionally restricted First and Fourteenth Amendment rights to free speech. They also challenged the tabling ordinance, claiming the exemption for labor-related activity violated the Fourteenth Amendment’s Equal Protection Clause.
On remand from an earlier appeal in which the Ninth Circuit held that the promenade retained its nature as a traditional public forum, U.S. District Judge David W. Hagen of the District of Nevada held that the solicitation ban was a content-neutral and valid time, place, and manner restriction. But Hagen held that the tabling ordinance violated plaintiffs’ equal protection rights as applied, but declined to hold that it was facially invalid.
On appeal, Judge Richard A. Paez, writing for the Ninth Circuit, found that the solicitation ordinance was not content neutral, saying:
“Whereas handbills that simply offer information, or offer information and a
contact number, are permitted, handbills requesting that the recipient ‘join us’ or soliciting future donations are prohibited.”
“Handbills with certain content pass muster those requesting financial or other assistance do not. Even if this distinction is innocuous or eminently reasonable, it is still a content-based distinction because it ‘singles out certain speech for differential treatment based on the idea expressed.’”
Noting that even the city conceded that the solicitation ordinance could not survive the strict scrutiny test applied to content-based restrictions on free speech, Paez concluded:
“The solicitation ordinance is a facially unconstitutional regulation of the right to free speech protected by the First Amendment.”
Noting that the issue of whether setting up tables is protected activity was one of first impression in the Ninth Circuit, Paez concluded:
“We hold that the erection of tables in a public forum is expressive activity protected by our Constitution to the extent that the tables facilitate the dissemination of First Amendment speech. We agree that use of portable tables is analogous to access to newsracks—similarly temporary structures used to disseminate speech-related materials—which is protected by the First Amendment.”
Paez held that the tabling ordinance was invalid as applied to the ACLU, but did not find that it was invalid on its face, saying:
“Although the record is sufficiently clear for us to hold that the tabling ordinance is unconstitutional as applied to Plaintiffs’ expressive activities, nothing in the record indicates that tables are used in the Fremont Street Experience for expressive purposes with enough frequency to support Plaintiffs’ facial challenge to the ordinance.”
Paez agreed with the plaintiffs that the exemption to the tabling ordinance for labor-related activities violated the Fourteenth Amendment’s Equal Protection Clause.
Judges A. Wallace Tashima and Sidney R. Thomas joined in the opinion.
In a prior appeal in the same case, the court affirmed Hagen’s order striking down ordinances banning leafleting and vending at the promenade.
The case is American Civil Liberties Union v. City of Las Vegas, 05-15667
Copyright 2006, Metropolitan News Company