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ACLU of Utah Writes Salt Lake City Officials About Main Street Plaza Restrictions

18 October 2002 Published in Legal Advocacy

The ACLU of Utah writes Salt Lake City officials about Main Street Plaza restrictions.

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ACLU of Utah Writes Salt Lake City Officials About Main Street Plaza Restrictions

October 18, 2002

Mayor Ross Anderson Salt Lake City Council
451 South State Street
Salt Lake City, Utah 84111

Re: First Unitarian Church v. Salt Lake City Corporation

Dear Mayor Anderson and Members of the Salt Lake City Council,

Salt Lake City faces complicated legal and ethical issues as it seeks to address and balance the sometimes-competing interests laid bare when the Tenth Circuit Court of Appeals ruled that the restrictions on free expression on the Main Street Plaza are unconstitutional. As many have noted, there is no simple solution to these issues, and none will likely satisfy everyone. The City’s obligation, however, is clear: to honor what the Tenth Circuit called "our country’s dedication to both free expression and non-Establishment ... its greatest heritages." That means any solution must respect the rights of all to use the Main Street Plaza for expressive purposes on equal terms, regardless of race, creed or religion.

Fortunately, besides striking down the restrictions on the easement guaranteeing public use of the Plaza, the Tenth Circuit also provided some guidelines for new, constitutionally sound regulations that will balance all the competing interests. The Court recognized that "Governments routinely pursue public objectives in regulating the time, place and manner of speech on public fora without running afoul of the Constitution. Such legitimate objectives include public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests. Thus while the purpose of the forum is a pedestrian easement, the City may take the interests of the surrounding property owners into account in enacting regulations, and may seek to accommodate competing uses of the easement."

Mayor Anderson and his administration have experience in these difficult matters and are no strangers to accommodating both the free speech rights of the public and other legitimate rights and interests. During the 2002 Winter Olympics the City faced the immense challenge of ensuring public safety while accommodating both Olympic spectators and demonstrators. Working with the ACLU and other groups, the City achieved a successful balance by developing content-neutral time, place and manner regulations for the downtown area.

The ACLU of Utah believes that the City can once again succeed in accommodating all who seek lawfully to use and enjoy the Main Street Plaza. What the City cannot do without running afoul of the basic constitutional requirement of neutrality and exacerbating its present dilemma is to act out of some perceived legal or ethical obligation to protect the LDS Church. As the Tenth Circuit stated: "Protecting the Church’s expression from competition is not a legitimate purpose of the easement or its restrictions." Moreover, the property was sold subject to the public easement, all parties anticipated the possibility that the restrictions could be declared unconstitutional and agreed that if a court found the restrictions invalid, the restrictions would fall, but the easement would stand. It is the LDS Church that is now legally and ethically obligated to honor the bargain it made by not insisting that the City simply give up the public’s easement.

The ACLU is confident that, by regulating the use of the plaza within well-defined constitutional limits, the City can address many of the concerns expressed by LDS Church officials and those residents and visitors who have come to appreciate and enjoy the Plaza. The City, the LDS Church and the entire community have an extraordinary opportunity to make of the Main Street Plaza one of the truly great public spaces in this country - the emblem of a city, a church and a community confident in and open to the world of ideas that will find voice in this unique setting. We should not lament that this is what the Constitution requires; we should celebrate that this is what the Constitution protects.

Sincerely,

Carol Gnade
Executive Director

Dani Eyer
Incoming Executive Director