Friday, July 13, 2001
Hotel Sidewalk Is Public Forum Under First Amendment—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
The sidewalk in front of the Venetian Casino Resort on the Las Vegas Strip, constructed privately by the hotel to replace a public sidewalk that existed on the site when it housed the old Sands hotel, is a public forum for First Amendment purposes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The divided panel handed a victory to local unions which have picketed the non-union hotel, local authorities who have refused to interfere with the picketing, and the ACLU of Nevada.
The Venetian argued that the sidewalk is not a public forum, citing U.S. Supreme Court decisions regarding pedestrian malls and enclosed shopping centers. But Judge Procter Hug Jr., joined by Chief Judge Mary M. Schroeder, said the cases were distinguishable.
“The historically public character of the Venetian’s sidewalk, the sidewalk’s continued use by the general public, the fact that the sidewalk is connected to and virtually indistinguishable from the public sidewalks to its north and south, and the dedication of the sidewalk to public use all serve to distinguish this case from the two Supreme Court cases...,” Hug wrote.
The Venetian sued Clark County, its district attorney, and the Las Vegas Metropolitan Police Department in March 1999 after about 1,300 members and supporters of the culinary workers and other unions picketed the newly opened facility pursuant to a county-issued demonstration permit.
The hotel claimed the county was violating its property rights by issuing the permit, and that the police had a mandatory duty to exclude the demonstrators from the sidewalk. The police responded that they had relied on the district attorney’s advice that the demonstrators had a right to picket, and the ACLU and the unions intervened in support of the defendants.
U.S. District Judge Philip M. Pro granted the defendants’ motion for summary judgment, a decision the Court of Appeals affirmed by yesterday’s ruling.
Hug cited a recorded agreement between the Venetian and the Nevada Department of Transportation under which the hotel was permitted to replace the existing public right-of-way by constructing “a private sidewalk connecting to public sidewalks on either side of its property.”
The sidewalk was required to “have a minimum width of ten feet” and to “satisfy the Americans with Disabilities Act for the purpose of providing unobstructed pedestrian access.”
The agreement, Hug said, imposes “a recorded servitude on this parcel of private property upon which the replacement sidewalk is located that the Venetian and its successors and assigns dedicate to public use to provide unobstructed pedestrian access on that sidewalk.”
Unlike the property owners in the U.S. Supreme Court cases, Hug said, the Venetian wasn’t free to exclude the public from passing across its property.
Senior Judge Melvin Brunetti dissented, arguing that the agreement between the hotel and the state wasn’t intended to give the public the right to use the property for public expression.
The former public sidewalk, Brunetti explained, “is now replaced by a highway; it exists no more” and has been “rerouted onto private property” that was never public. His colleagues, he said, were wrong in concluding that the property which the district judge found to be a public forum was “historically” public.
“This statement is simply wrong, as the fact that a public sidewalk existed at one time just a few feet away does not convert private property into public property,” the dissenting jurist wrote. “Any First Amendment analysis as to the requirement of state action must start with the piece of property at issue in the case, and this starting point can not be glossed over by importing in the history of other pieces of property.”
The case is Venetian Casino Resort, L.L.C v. Local Joint Executive Board of Las Vegas, 00-15136.
Copyright 2001, Metropolitan News Company