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The ACLU of Utah Sends a Letter to Salt Lake Mayor Corradini and Council Members about Unconstitutional Restrictions in the Main Street Redevelopment Plan

05 May 1999 Published in Legal Advocacy

The ACLU of Utah Sends a Letter to Salt Lake Mayor Corradini and Council Members about Unconstitutional Restrictions in the Main Street Redevelopment Plan.

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Letter to Salt Lake Mayor Corradini and Council Members about Unconstitutional Restrictions in the Main Street Redevelopment Plan

May 5, 1999

Mayor Deedee Corradini
Salt Lake City Corporation
451 South State Street
Salt Lake City, Utah 84111

Salt Lake City Council
451 South State Street
Salt Lake City, Utah 84111

Re: Salt Lake City Ordinance No. 28 of 1999

Dear Mayor Corradini and Honorable Council Members:

The ACLU has received several complaints and inquiries concerning various aspects of the sale, closure and redevelopment of Main Street between North Temple and South Temple into a pedestrian plaza pursuant to the above Ordinance. We write today to request that the City address at once a specific aspect of the transaction that plainly violates the United States Constitution, so that litigation can be avoided.

Section 3 of the Ordinance provides, among other things, that the closure and redevelopment of Main Street are "conditioned upon compliance with all of the conditions identified by the Salt Lake City Planning Commission" attached as Exhibit "B" to the Ordinance. Those conditions include the City’s retaining "a perpetual easement for a 24-hour public pedestrian and bicycle access from North Temple to South Temple" and ensuring that the development "be planned and improved so as to maintain, encourage, and invite public use." This language in the Ordinance, coupled with representations that the redevelopment would bring "a little bit of Paris" to downtown Salt Lake City, led us and many others to believe that what the City had in mind was a central place where residents and visitors alike could gather and delight in the diversity that increasingly characterizes our city. Unfortunately, what we now learn the City has agreed to is more akin to "a little bit of Beijing" or Red Square – a place where orthodoxy in speech and conduct is vigorously enforced and constitutional rights are non-existent. We refer specifically to the recently executed Special Warranty Deed from the City to the LDS Church, which purports to sell not only this central block of Main Street but also the public’s First Amendment rights that, since this City’s founding, have gone along with it.

The Deed is unconstitutional on its face. In the eyes of the law, no less than in the hearts of the members of this community, Main Street is a traditional public forum. The United States Supreme Court and lower federal courts have consistently held that traditional public fora such as streets and sidewalks cannot be stripped of their status merely because title is conveyed to a private entity, but that is precisely what the City purports to do here. The City properly reserves a right of public access, but improperly agrees to vague and unconstitutional restrictions on that right. Among the restrictions agreed to by the City is that the LDS Church have the "right to prevent uses other than pedestrian access." Specifically, in Section 2.2 of the Deed the City purports to permit the LDS Church to prohibit, among other things, "loitering, assembling, . . . demonstrating, picketing, distributing literature, . . . erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any . . . offensive, indecent, . . . lewd or disorderly speech, dress or conduct. . . ." The City cannot agree to restrictions on access that strip its residents of their constitutional rights in this traditional First Amendment public forum, any more than it could directly impose such restrictions.

The fact that the City purports to cede regulatory authority over the property to the church also raises important issues of church/state separation. The above restrictions apply only to members of the public; the LDS Church (and presumably its members, so long as they promulgate an approved message) will continue to enjoy access to Main Street without restrictions on speech or conduct, "including, without limitation, the distribution of literature, the erection of signs and displays by [the LDS Church], and the projection of music and spoken messages. . . ." Moreover, the City purports to authorize the church, in its absolute discretion, to permanently exclude members of the public who, among other things, have "threatened" harm or damage to leaders or members or property of the LDS Church or have violated the exceedingly vague restrictions identified above on more than one previous occasion. This means that the LDS Church not only can silence any voice it does not wish to hear on this property, but also can broadcast exclusively its own message. The LDS Church and its members are valued citizens in our community, and their beliefs and views are entitled to full First Amendment protection. Those beliefs and views, however, are not shared by all, nor can they legally be enshrined as the only acceptable views or imposed upon others who might wish to engage in legal activities on this property, without running afoul of the First Amendment’s Establishment Clause.

In summary, Main Street, like all public streets, is and always has been a traditional public forum, a uniquely American institution central to the "marketplace of ideas," open to the unorthodox as well as the conventional. It never has been, is not now, and must not be allowed to become an extension of Temple Square. To do so would not only send a message of exclusion and forced homogeneity to our increasingly diverse community and the world we claim to welcome, but would violate fundamental rights that protect all of us – including the LDS Church and its members. Therefore, we call upon you to protect those rights by ensuring that access to the heart of our city will be permitted without vague and unconstitutional restrictions.

Very truly yours,

Stephen C. Clark