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APPELLANTS’ REPLY BRIEF

First Unitarian Church v. Salt Lake City Corporation

Case No. 01-4111

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FIRST UNITARIAN CHURCH OF SALT LAKE CITY; UTAHNS FOR FAIRNESS; UTAH NATIONAL ORGANIZATION FOR WOMEN; and CRAIG S. AXFORD, Plaintiffs/Appellants,

vs.

SALT LAKE CITY CORPORATION, a municipal corporation, Defendant/Appellee, CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Intervenor/Appellee.

APPELLANTS’ REPLY BRIEF

ON APPEAL FROM A SUMMARY JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

The Honorable Ted Stewart, Judge Presiding
Trial Court Case No. 2:99CV-0921ST
STEPHEN C. CLARK
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
(801) 521-9862

MARK LOPEZ
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, New York 10004

Attorney for Plaintiffs/Appellants

TABLE OF CONTENTS

I. TABLE OF AUTHORITIES
II. SUMMARY OF ARGUMENT
III. ARGUMENT
A. THE PUBLIC PLAZA AND PEDESTRIAN THOROUGHFARE ON MAIN STREET ARE NOT “PRIVATE PROPERTY” FOR PURPOSES OF THE FIRST AMENDMENT; APPELLEES’ ARGUMENTS TO THE CONTRARY ARE BASED ON AN INCORRECT READING OF THE LAW AND A DISREGARD OF THE RELEVANT FACTS
1. The Rule That “Private Property” Generally Is Not Subject To First Amendment Protection Does Not Apply Here; Instead, The Venetian Rule Applies, Because For First Amendment Purposes The Main Street Property Is Not “Private”
2. The Opposing Parties’ Arguments To Undermine Or Avoid The Venetian Rule Are Incorrect and Unavailing
3. This Court’s Hawkins Decision Is Not Controlling Here Because The Property Is A Public Thoroughfare
B. THE RESTRICTIONS TO WHICH THE CITY AGREED ARE VAGUE, VIEWPOINT BASED, AND DISCRIMINATORY; APPELLEES’ ARGUMENTS TO THE CONTRARY ERRONEOUSLY SUGGEST THAT IT IS CONSTITUTIONALLY PERMISSIBLE FOR THE GOVERNMENT TO DO INDIRECTLY WHAT IT CANNOT DO DIRECTLY
C. THE RESTRICTIONS TO WHICH THE CITY AGREED VIOLATE THE ESTABLISHMENT CLAUSE; APPELLEES’ ARGUMENTS TO THE CONTRARY, AND THE DISTRICT COURT’S ERRONEOUS RULING, MISS THE MARK ENTIRELY, BECAUSE THEY FOCUS ON THE CITY’S SALE OF THE PLAZA RATHER THAN THE CITY’S IMPOSITION OF RESTRICTIONS ON THE PUBLIC’S USE
1. The City’s Restrictions Serve No Secular Purpose
2. The City’s Restrictions Have Purely Sectarian Effects
3. The City’s Restrictions Result In Excessive Entanglement Between The City And The Church
4. Grendel’s Den Is Not A Different Test, But A Closely Analogous Case Establishing A Discrete Establishment Clause Violation
5. The Opposing Parties’ Precedents Are Not Controlling

IV. CONCLUSION
V. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)
VI. CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

Federal Cases
Abington School District v. Schempp, 374 U.S. 203 (1963)
ACLU v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998)
ACLU v. City of Las Vegas, 168 F.3d 497 (9th Cir. 1999) (unpublished decision, available at 1999 WL 65130)
Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998)
Burstyn v. Wilson, 343 U.S. 495 (1952)
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753
Central Hardware Co. v. N.L.R.B., 401 U.S. 539 (1972)
Chicago ACORN v. Metropolitan Pier Exposition Authority, 150 F.3d. 695 (7th Cir. 1998
Citizens to End Animal Suffering and Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990)
City of Lakewood v. Plain Dealer Publishing, 486 U.S. 750 (1988)
Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788 (1985)
Evans v. Newton, 382 U.S. 296 (1966)
Faustin v. City and County of Denver, --- F.3d. ---, 2001 WL 1149175 (10th Cir. Sept. 28, 2001)
First Unitarian Church v. Salt Lake City Corp., 146 F. Supp. 2d 1155
Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308 (1968)
Freedom From Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000)
Frisby v. Schultz, 487 U.S. 474
Good News Club v. Milford Central School, 121 S. Ct. 2093 (2001)
Hague v. CIO, 307 U.S. 496 (1939)
Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir.), cert. denied, 528 U.S. 871 (1999)
Heffron v. Int”l Soc. For Krishna Consciousness, Inc., 452 U.S. 640 (1981)
Henderson v. Lujan, 964 F. 2d 1179 (D.C. Cir. 1992)
Hill v. Colorado, 530 U.S. 703
Hudgens v. NLRB, 424 U.S. 507 (1976)
Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892)
International Soc”y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
Larkin v. Grendel’s Den Inc., 459 U.S. 116
Lebron v. National R. Passenger Corp., 513 U.S. 374 (1995)
Lloyd Corp. v. Tanner, 407 U.S. 551 (1972)
Marsh v. Alabama, 326 U.S. 501 (1946)
Paulson v. City of San Diego, --- F.3d ---, 2001 WL 946353 (9th Cir. Aug. 22, 2001)
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)
Perry v. Sindermann, 408 U.S. 593 (1972)
Pryor v. Coats, 203 F.3d 836 (10th Cir. 2000)
Rosenberger v. University of Virginia, 515 U.S. 815 (1995)
Schenk v. Pro-Choice Network of Western N.Y., 519 U.S. 357 (1997)
Schneider v. State (Town of Irvington), 308 U.S. 147 (1939)
Shelley v. Kraemer, 324 U.S. 1 (1948)
Speiser v. Randall, 357 U.S. 513 (1958)
United States v. Kokinda, 497 U.S. 720 (1990)
Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 45 F. Supp. 2d 1027 (D. Nev. 1999)
Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937 (9th Cir. 2001)
Ward v. Rock Against Racism, 491 U.S. 781 (1989)
Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc)
Wells v. City and County of Denver, 257 F.3d 1132 (10th Cir. 2001)

State Cases
Corporation of the President v. Wallace, 590 P.2d 343 (Utah 1979)
S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243 (2001)

State Statutes
Utah Code Ann. § 77-7-3

I. SUMMARY OF ARGUMENT

The property at issue in this case is a block of Main Street in the heart of downtown Salt Lake City. It was sold to the Mormon Church with the understanding that the church would transform the property from one type of public space – a public street and sidewalks – into another type of public space – a “park-like gathering place” with “sidewalks or walkways” designed and built to facilitate “the pedestrian flow across the property.” Besides enhancing “the ease of accessing Salt Lake City’s number one tourist attraction, Temple Square,” the property was to serve as both “an anchor for the north end of downtown for tourist[s] and residents to experience Main Street” and “a funnel to . . . the downtown business district.” To those ends, the church promised it would “maintain, encourage and invite public use” of the property, and the City reserved various easements, including one ensuring public access and passage at all times.

What the City and its residents and visitors actually got, however, was not the urban pedestrian plaza and thoroughfare they were promised, but what the district court called an “ecclesiastical park” and what the church calls a “private religious garden.” This dramatic change occurred because just before the sale of Main Street was finalized the City purported to strip the property of its historic status as “traditional public forum” and grant the church the unfettered discretion to deprive the millions of people who visit the property of their right of access and passage at any time if they engage in “offensive speech, dress or conduct.” In short, the City expressly empowered the church to dominate all expression on the property to further its purely sectarian goals.

Far from being a “simple case” easily resolved by reciting platitudes about “private property,” this is a challenging and difficult case. The competing claims and interests go to the very core of established notions of religious and expressive freedom on which our pluralistic democracy was founded, took root and has thrived. Appellants acknowledge and respect the rights of private property owners to control their purely private property, as well as the rights of religious organizations to express their views on political, social, moral and religious issues. However, to allow the government on the one hand to guarantee public access to a central downtown pedestrian plaza and thoroughfare, and on the other hand to empower one particular church (in this case, the predominant church) to exercise absolute expressive control over those who seek to enjoy such access even as it is free to barrage them with its purely sectarian views, offends the core freedoms on which this country rests. Whether one views this case in terms of the Free Speech Clause, the Equal Protection Clause or the Establishment Clause, the result is the same: the City cannot both guarantee public access to the property and at the same time grant the church absolute expressive control over the public’s use of the property.

In Free Speech terms, the opposing parties insist that the Main Street pedestrian plaza and thoroughfare is now “private property,” and therefore beyond the pale of constitutional requirements imposed on state actors in regulating public property. That argument begs the central question of whether such fundamentally public space can properly be characterized as “private” for First Amendment purposes. As Appellants demonstrated in their opening brief, because the Main Street property has the form and function of a public pedestrian plaza and thoroughfare, it is “public” for purposes of First Amendment forum analysis regardless of the government’s attempt to avoid regulating it as such, whether by selling the property, designating it as “private,” declaring it not to be a First Amendment forum or any other such transparent elevation of form over substance. This Court should not allow the strictures of the First Amendment, so essential to our pluralistic democracy, to be so easily evaded. This will not make it impossible for the government ever to transfer property, or violate the important First Amendment right of owners of purely private property to engage in their own expressive activities. It will merely recognize that the government must respect overriding constitutional principles when it sells public property. See Section II A, infra.

The City’s attempt to maintain public access to the Main Street Plaza while at the same time empowering the Mormon church to deny access based on its own subjective criteria also violates both the First Amendment prohibition on viewpoint-based restrictions and the Equal Protection Clause of the Fourteenth Amendment. Contrary to the arguments in the opposing briefs, the restrictions to which the City agreed are not neutral bans on certain types of expressive activities or reasonable content-based regulations. The City gave the church the express power to deny members of the public access to the property if they engage in “offensive speech, dress or conduct.” At the same time, nothing in the Deed impairs the church’s ability to allow expression of a viewpoint it does not find “offensive” on any subject of its choosing; to the contrary, the Deed expressly protects church-approved expression, including the “distribution of literature” and the “projection of spoken messages.” It is difficult to imagine a more egregious example of unconstitutional restrictions. See Section II B, infra.

In Establishment Clause terms, the purpose and effect of the City’s conduct in this case is to advance the Mormon religion by protecting the church’s speech while and preventing unwanted speech. The City and the church readily concede the church’s power to exercise expressive control over members of the public on the Plaza was the linchpin of the deal. In their opposition briefs, the City, the church and amici do not even address the Establishment Clause issues this reality creates. Instead, they make the same mistake the district court made. They focus on whether the City’s sale of Main Street satisfies the Lemon test. The sale itself is not and never has been at issue. At issue instead are the one-sided, viewpoint-based, discriminatory restrictions on the public’s right of access and passage to which the City agreed, in complete derogation of the transaction the parties had consistently presented to the public. Applying the Lemon test to what is at issue, there is no doubt the restrictions have the primary purpose and effect of favoring the church and its sectarian goals. See Section II C, infra.

Accordingly, Appellants respectfully ask this Court to reverse the district court’s decision and grant Appellants the declaratory and injunctive relief requested in their Complaint.

II. ARGUMENT

A. THE PUBLIC PLAZA AND PEDESTRIAN THOROUGHFARE ON MAIN STREET ARE NOT “PRIVATE PROPERTY” FOR PURPOSES OF THE FIRST AMENDMENT; APPELLEES’ ARGUMENTS TO THE CONTRARY ARE BASED ON AN INCORRECT READING OF THE LAW AND A DISREGARD OF THE RELEVANT FACTS.

The City, the church and amici argue that this case is easily disposed of under the general proposition that “free speech rights do not apply to private property.”(1) That argument is based on an incorrect, overly simplified reading of the case law and a disregard of the relevant facts.

A proper reading of the case law governing the extent to which ostensibly “private” property is subject to First Amendment protection reveals that what matters is not what the government says about the property’s status, or whether the property has undergone certain cosmetic changes, but whether the public has the right to use the property for some fundamentally public purpose such as a pedestrian plaza or thoroughfare. If it does, regardless of government statements to the contrary or cosmetic changes to the property, First Amendment protections apply. Applying the law to the facts of this case, it is clear that notwithstanding the City’s efforts to strip Main Street of its historic status as a public forum, and notwithstanding cosmetic changes to the property, First Amendment protections apply because it remains open for millions of visitors and residents to use and enjoy as a public plaza and thoroughfare.

1. The Rule That “Private Property” Generally Is Not Subject To First Amendment Protection Does Not Apply Here; Instead, The Venetian Rule Applies, Because For First Amendment Purposes The Main Street Property Is Not “Private.”

Appellants do not dispute that if the City had sold Main Street to the church in fee simple, and if the property were really what the church now tries to say it is – simply an extension of the adjacent, and purely private, Temple Square – then the “private property” argument might have some bearing. (2) Notwithstanding the opposing parties’ arguments to the contrary, this case clearly does not present such a straightforward example of “private property.”

When it sold Main Street, the City did not grant the church fee simple title; instead, the City reserved several easements and imposed several restrictions that dramatically encumber the church’s use and enjoyment of the property. (3) The City conditioned the sale of the property on the church’s promise to “maintain, encourage, and invite public use” of the property. (App. Br. Add. B p. 6) (4) The Deed requires that the property remain open for “pedestrian access and passage at all times, both day and night” on “sidewalks or walkways intended for that purpose.” (App. Br. Add. C, Deed §§ 1.3, 2.1) The Deed prohibits the church from erecting buildings or perimeter walls or fences. (Id. § 1.4) These are extraordinary and substantial encumbrances on any property, and they clearly indicate that the church has opened the property for use by the general public. They belie the simplistic assertion that no First Amendment rights can attach to the property because it is “private.” See Marsh v. Alabama, 326 U.S. 501, 506 (1946) (“The more an owner, for his advantage, opens up property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”).

The City and the church nevertheless argue that Main Street is “private property” because other language in the Deed so provides. (Def. Br. at 36-37; Int. Br. at 35) But the government cannot strip a traditional public forum of its constitutional status simply by selling the property and declaring it no longer to be a public forum. What matters is whether the property serves some important public function, such as a pedestrian plaza or thoroughfare. That is the teaching of a long line of Supreme Court and lower court cases, going back to Marsh v. Alabama, 326 U.S. 501 (1946), Evans v. Newton, 382 U.S. 296 (1966), and cogently summarized in Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 677-78 (1998): “traditional public fora are open for expressive activity regardless of the government’s intent. The objective characteristics of these properties require the government to accommodate private speakers.” (5)

This does not mean the government can never sell property. It simply means the government cannot avoid its constitutional responsibility to regulate the property with reasonable, nondiscriminatory, content- and viewpoint-neutral regulations by selling the property while at the same time requiring that the property continue to serve an important public function. A contrary result would mean that, regardless of the fact that property might continue to look like and function as a public park or sidewalk, it could be regulated by vague, arbitrary and discriminatory restrictions, wholly at the discretion of the private property owner. That would leave the government virtually “unrestrained by an independent duty to respect the speech its citizens can voice” on the property. See International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 695 (Kennedy, J., concurring).

The opposing parties also argue that this case falls within the rule of such cases as Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), and Hudgens v. NLRB, 424 U.S. 507 (1976). (See Def. Br. at 25-26) Those cases merely stand for the proposition that property serving a purely private purpose, such as the interior streets, parking lots or walkways of a private, enclosed shopping mall, is not necessarily a public forum, even though the public has access to the property. That is because such walkways do not serve as public thoroughfares open to the public generally, but instead as means of access for business invitees. (6)

That line of cases has no application here, because there can be no question that the Main Street Plaza does not serve such a limited, purely private purpose. Notwithstanding the church’s belated and wholly contrived efforts to insist otherwise, (7) which the district court accepted uncritically, the property at issue was not designed and is not used simply to facilitate access by the church’s invitees. The sidewalks are not figments of Appellants’ imagination; the church itself recognized in the Deed that the Plaza would feature “sidewalks or walkways intended for [the] purpose” of facilitating “the pedestrian flow across the Property.” (App. Br. Add. C, Deed § 2.1) (8) The Deed requires that the Plaza and sidewalks remain open “at all times, both day and night,” even when the church’s other facilities are closed. (Id. § 1.3) The Plaza and sidewalks continue to serve as pedestrian thoroughfares for people wholly uninterested in visiting the church’s facilities. (A1464-67, 1770-72) Indeed, the Plaza constitutes the only direct and unobstructed thoroughfare between North Temple and South Temple streets along the central downtown Main Street axis, and serves as the sole and exclusive means of traversing Main Street at the heart of the downtown pedestrian grid. (A1498-1502) (9) The Plaza sidewalks seamlessly connect with the public sidewalks on North Temple and South Temple. (A1448-50) (10) By design and by deed, the Plaza serves as both an “anchor for the north end of downtown for tourist[s] and residents to experience Main Street” (A1531) and “a funnel to . . . the downtown business district” (A1588). It simply cannot be gainsaid that the Main Street pedestrian plaza and thoroughfare “facilitate the daily commerce and life of the neighborhood or city.” See United States v. Kokinda, 497 U.S. 720, 727-28 (1990) (emphasizing that the use of a sidewalk as a “public passageway” or “thoroughfare” is characteristic of sidewalks that are traditional public forums).

As Appellants demonstrated in their opening brief, the case that is relevant in determining the First Amendment status of “private property” that serves as a public thoroughfare is the Ninth Circuit’s recent decision in Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937 (9th Cir. 2001). There, the court rejected the very same arguments the City and the church advance here. First, the court declined to rely on the parties’ attempt, by a recitation in their agreement, to override the Constitution. The Venetian claimed title to the property, including “full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment[s] to the United States Constitution.” See Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 45 F. Supp. 2d 1027, 1030 (D. Nev. 1999). Nevertheless, the Ninth Circuit properly concluded that simply labeling something “private” “’does not alter its characteristics so as to make it something other than what it actually is.’” Venetian, 257 F.3d at 947, quoting Lebron v. National R. Passenger Corp., 513 U.S. 374, 393 (1995).

The Ninth Circuit also properly rejected the Venetian’s reliance on the Lloyd and Hudgens line of cases:

“In those cases, the properties at issue – pedestrian ‘promenades’ inside private enclosed shopping centers – were intended solely to be used to facilitate the patronage of the shopping centers’ tenants. . . . The promenades were not an integral part of ‘the city’s automotive, pedestrian or bicyclists’ transportation grid,’ . . . and most importantly they were never dedicated to public use. . . . While the mall owners in Lloyd and Hudgens were free to barricade their walkways, or close their malls outright, without giving patrons any legal ground to complain, the Venetian is not.”

Id.

The Ninth Circuit held the “private” public thoroughfare sidewalk to be “the archetype of a traditional public forum” even though “the particular parcel of land used for the replacement sidewalk had not been a public forum historically” and even though the language providing “unobstructed public access” across the sidewalk was less than crystal clear. Id. at 943-44. This case presents no such ambiguities. The property at issue here was indisputably a traditional public forum historically, and the right of “unobstructed public access” is clearly and unequivocally set forth in an easement. In that respect it is like the property in Citizens to End Animal Suffering and Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990). There, the city “reserved a public easement over the lanes. The lanes are used for access, for strolling about the Marketplace, and as a ‘historic pedestrian connection’ to the purely and traditionally public adjoining areas. These lanes thus resemble public sidewalks. Although sidewalks are not public fora per se, . . . the facts here establish that these lanes must be considered, at the least, as limited public fora.” Id. at 75-76 (emphasis added, internal citation omitted.) (11)

In short, far from being a limited-use “ingress and egress” sidewalk serving purely private purposes, the Main Street Plaza is a public pedestrian plaza and thoroughfare that serves the same purpose as the sidewalks on Main Street it replaced, as the replacement sidewalk in front of the Venetian Hotel, and as the lanes intersecting the Faneuil Hall Marketplace, and the opposing parties’ arguments to the contrary are unconvincing.

2. The Opposing Parties’ Arguments To Undermine Or Avoid The Venetian Rule Are Incorrect and Unavailing.

Obviously troubled by the existence of straightforward, persuasive and analogous precedents, including the very recent Venetian precedent, the opposing parties seek to call that precedent into question. Pointing to the Nevada Supreme Court’s decision in S.O.C., Inc. v. Mirage Casino-Hotel, 23 P.3d 243 (2001), the church says “Venetian’s reasoning is in deep question” because “the Nevada Supreme Court reached the opposite conclusion from the Ninth Circuit, holding that the sidewalk was not a public forum.” (Int. Br. at 46-47) The truth is that the Nevada Supreme Court made no such holding; instead, it merely held that the trial court did not err in preliminarily enjoining arguably illegal commercial speech on the sidewalks.

In Mirage, three justices opined that the lower court “did not err in making a preliminary finding that the sidewalks in question are private property and therefore not subject to the reach of the First Amendment.” Mirage, 23 P.3d at 250 (Young, J., with Agosti and Becker, JJ., concurring). In doing so, they did not even cite to, let alone discuss or attempt to distinguish, the persuasive reasoning and holding directly to the contrary in Venetian. (12) Three different justices, however, relied on the persuasive reasoning of Venetian to conclude that the thoroughfare sidewalks are a public forum subject to the First Amendment notwithstanding private ownership. See id. at 252 (Maupin, C.J., and Shearing, J., concurring in the result, and Rose, J., dissenting).

On the principal issue here, the concurring justices had this to say: “The basic question in this matter [the First Amendment status of the “private” sidewalks] was convincingly settled in Venetian Casino Resort v. Local Joint Executive Board.” Id. (emphasis added). The dissenting justice was even more emphatic: “By the very location and function of the sidewalks, I think it is impossible not to conclude that they serve as traditional public sidewalks. Similar thoroughfares, whether publicly or privately owned, have been recognized as public forums on which all First Amendment rights must be recognized and honored.” Id. (emphasis added).

In short, the three justices of the Nevada Supreme Court who discussed the virtually identical Venetian case held it was dispositive of the First Amendment status of the sidewalks at issue in Mirage. (13) Contrary to the arguments in the opposing briefs, therefore, the narrow holding in Mirage does not call into question either the reasoning or the holding of Venetian, and it is not controlling or even relevant here, where Appellants’ desired speech is the archetype of political and religious speech at the core of the First Amendment. See Mirage, 23 P.3d at 252 (Maupin, C.J., concurring) (noting that “the speech at issue in Venetian and in the case upon which Venetian primarily relies, Marsh v. Alabama, is different in kind from the commercial handbilling here.”).

3. This Court’s Hawkins Decision Is Not Controlling Here Because The Property Is A Public Thoroughfare.

The City and the church rely principally on this Court’s decision in Hawkins v. City and County of Denver, 170 F.3d 1281 (10th Cir.), cert. denied, 528 U.S. 871 (1999). (14) As this Court well knows, the property at issue in Hawkins is an area of the Denver Performing Arts Complex (“DPAC”) known as the Galleria. The Galleria was built where formerly there had been a public street (not, to be sure, “Main Street,” the heart and soul of the community). Id. at 1284. In terms of form, the Galleria consists of an “open-air, glass-covered pedestrian walkway.” Id. . . . While the covered area leads to and connects with a public street on one end, at the other end lies a sculpture park separating the pedestrian walkway from Speer Boulevard. Id.; see also Int. Br. Add. 5. The covered area is “bounded on one side by two large theaters” and on the other by a parking garage and theater. Id. In terms of function, this Court emphasized that the Galleria is not “analogous to a public right of way or thoroughfare. The Galleria does not form part of Denver’s automotive, bicycle or pedestrian grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughway to another destination. Rather, the Galleria’s function is simply to permit ingress to and egress from the DPAC’s various complexes” – “in effect serving as an extended lobby for the various performing arts venues.” Id. at 1287 (emphasis added). Based on these facts, this Court concluded that the City had eliminated the former public street and terminated its status as a traditional public forum. Id. at 1288. (15)

The opposing parties try to shoehorn this case into Hawkins by noting that the appearance of the property has changed. That is undeniable, but misleading and not dispositive of this case, for two reasons.

First, the appearance of the property has changed, but only from that of a public street and sidewalks to that of a public pedestrian plaza and thoroughfare. The City’s, the church’s and the district court’s response to this fact is that, contrary to the public representations it made throughout the regulatory approval process, the church has now converted the property into what it calls a “private religious garden” and what the district court called an “ecclesiastical park.” This is simple bootstrapping. Before the sale, the church represented that the property would be “inviting enough and presented in such a way that people will walk up that street and not think it is private property.” (A1218, emphasis added) But for the church’s unannounced, post-sale installation of religious imagery on the property, it would be exactly what it was represented and intended to be: an open public space and thoroughfare serving as both an “anchor” and a “funnel” to the busiest commercial area in the city. (See A1531, 1588) To rely on the fact that the church has sought to defeat Appellants’ public forum claims by converting what it said would be a public park into an “ecclesiastical park” is to beg the threshold question of whether the property is a public forum and, more dangerously, to reward misleading conduct. The church cannot have it both ways. It cannot gain regulatory approval of its purchase of Main Street by describing the property to the public one way and then, once the purchase is completed and its interests change in the face of litigation, describing the property to the courts in a completely different way. As the classic law school example goes, a person cannot kill his parents and then beg the court for mercy because he is an orphan.

Second, and more to the substantive point, if one focuses on the plaza sidewalks along the east and west edges of the property, (16) they have barely changed at all, in purely trivial, cosmetic ways. The very language of the district court underscores this point. The district court relied on such legally meaningless “facts” as that the “new walkways are different from, and are in different places than, the former city sidewalks.” 146 F. Supp. 2d at 1167. The new walkways are “different from” the former city sidewalks only in that they lack a curb and gutter and, like other public sidewalks downtown, are paved with granite or something other than concrete. Far from being “in different places than” the former city sidewalks, the Plaza sidewalks still connect directly to the adjacent public sidewalks at the North Temple and South Temple ends of the Plaza and proceed along the east and west borders of the Plaza, just as the former city sidewalks connected to the adjacent sidewalks and proceeded along the east and west edges of Main Street. The district court relied on these and other trivial cosmetic changes (17) in concluding, erroneously, that “private” walkways must be “identical to the public sidewalks surrounding and attached to them” to retain their protected First Amendment status. Id. The government cannot strip public sidewalks of their time-honored status as traditional public forums by changing the pavement and moving them a few inches. As both Venetian and Faneuil Hall make clear, even much more dramatic changes to the sidewalks or surrounding property cannot suffice to destroy the protected First Amendment status of public thoroughfare sidewalks. (18) The opposing parties also try to shoehorn this case into Hawkins by suggesting that the principal if not exclusive function of the Plaza is simply to provide ingress to and egress from private church property to church employees and visitors. In an effort to support that argument, the church provided the district court with an affidavit setting forth how many people work in the adjacent buildings and visit the church’s attractions. (App. 1816-1818) Ignoring its obligation to make all factual inferences in plaintiffs’ favor, the district court uncritically jumped to the conclusion the church wanted: all of the people who work in and visit the church’s adjacent facilities use the Plaza for ingress to and egress from those facilities. 146 F. Supp. 2d at 1168-69. There is absolutely no evidence in the record to support that finding. (19) The only reasonable inferences support the conclusion that the Plaza is a thoroughfare. The whole point of this transaction (accepting the asserted secular purposes for the sale) was to encourage the “literally millions of persons [who] visit Temple Square each year” (id. at 1178) to enjoy Salt Lake City, not just the church property. The district court recognized that, unlike the Galleria, “the Property remains part of the pedestrian transportation grid” and that “bicycles can traverse the Property.” Id. at 1168. It is simply disingenuous of the parties (and it was erroneous for the court) to suggest that this property is not used as a thoroughfare.

Moreover, once again the church’s argument that the property serves a predominantly private function has only recently been contrived to suit its purposes in this lawsuit. The church itself, throughout the approval process, emphasized that the property would serve as a principal pedestrian thoroughfare. Even a cursory review of the record reveals that the church repeatedly touted how its plans for the property would secure its function as both an “anchor” and a “funnel” to the downtown shopping district and otherwise important public functions. (See, e.g., A1515-32 [Planning Commission Staff Report detailing all the public purposes and functions the Plaza will serve]; A1584-89 [Letter from church to City Council listing “the numerous public policy reasons why we believe that the closure and subsequent sale of Main Street would be in the best public interest”]) Now the church says it “purchased the Property and constructed the Plaza to advance various religious ends.” (Int. B. at 23) Again, the church cannot have it both ways. It cannot gain regulatory approval of its purchase of Main Street by representing to the public and to their representatives that it will serve important secular interests by maintaining the public’s use of Main Street as a critical pedestrian thoroughfare and then, once the purchase is completed and its institutional needs change in the face of litigation, represent to this Court that really the property is nothing more than a conduit to provide its invitees and employees with ingress to and egress from adjacent church facilities.

When all is said and done, the only fact that gives the opposing parties any argument whatsoever that the Main Street Plaza is like the Galleria is the bootstrapping, self-serving argument that the Plaza is an “ecclesiastical park” or a “private religious garden.” All Appellants ask is that the City and the church deliver on the promise they originally made, to give the City, its residents and visitors a pedestrian plaza where all will be welcome to enjoy the beauty of the City.

B. THE RESTRICTIONS TO WHICH THE CITY AGREED ARE VAGUE, VIEWPOINT BASED, AND DISCRIMINATORY; APPELLEES’ ARGUMENTS TO THE CONTRARY ERRONEOUSLY SUGGEST THAT IT IS CONSTITUTIONALLY PERMISSIBLE FOR THE GOVERNMENT TO DO INDIRECTLY WHAT IT CANNOT DO DIRECTLY.

Although the district court erred in concluding that the Main Street Plaza and pedestrian thoroughfare are purely “private property” and therefore not subject to First Amendment protection, it concluded “that the limited pedestrian easement is a governmentally owned property right that could be considered a nonpublic forum.” 146 F. Supp. 2d at 1172. As this court recognized in Hawkins, the Supreme Court has made clear that even in a non-public forum restrictions cannot be based on the viewpoint of speakers in the forum. Hawkins, 170 F.3d at 1287. But that is precisely what the City has done here. Seeing this reality through the fog of the opposing parties’ obfuscating arguments requires nothing more than minimal analytical scrutiny and common sense.

Appellants do not dispute that, in a nonpublic forum, the government can craft reasonable regulations designed to “preserve the property . . . for the use to which it was lawfully dedicated.” See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 50-51 (1983). Thus, for example, the government might permit leafleting, but not marches or demonstrations, in order to further the designated uses of a nonpublic forum. See, e.g. Chicago ACORN, 150 F.3d at 702 (permitting “leafletting on the sidewalks and other open areas” but not marches or demonstrations). Similarly, the government might limit all expressive activities during certain times where they would interfere with the use to which the property is dedicated. See, e.g., Hawkins (upholding ban on leafleting during times just before and after performances). What the government cannot do is permit leafletting without restriction to those espousing the views of the Democratic Party or the Catholic Church, but prohibit leafletting on the same terms and conditions to those espousing the views of the Republican Party or the Mormon Church. See, e.g., Chicago ACORN, 150 F.3d at 700 (government cannot “employ political criteria to decide who may use its facilities and on what terms, even if they are not public forums in even the most limited sense”), citing Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788, 806 (1985).

In this case, the use to which the easement on the Main Street Plaza has been lawfully dedicated is for “pedestrian access and passage.” Engaging in expressive activities is not intrinsically incompatible with that use, but is in fact incidental to it. Indeed, the Deed expressly allows the Mormon Church to engage in such activities, “including, without limitation, the distribution of literature, the erection of signs and displays . . . and the projection of music and spoken messages” on the very same property; the only limitation is that “the pedestrian flow across the Property shall not be unreasonably obstructed or limited.” (App. Br. Add. C, Deed §§ 2.1, 2.2) (20) The City and the church cannot argue, therefore, that it was necessary to strip the public’s right of access and passage of First Amendment protections to secure the uses to which the easement is dedicated. But that is precisely what the Deed does: it expressly prohibits Appellants and other members of the public from “distributing literature, . . . erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages.” (Id. § 2.2)

More seriously – and the City and the church both ignore this fact – the Deed expressly grants the church “the right to deny access to the Property” to members of the public who engage in “offensive . . . speech, dress or conduct.” (Id.) Thus, under the clear language of the Deed, the church is free to use the property to address an unlimited range of political, social, moral and religious topics from its sectarian point of view, but it can “deny access” to the very same property to anyone expressing a viewpoint it does not approve on those very same subjects. That is an egregious example of viewpoint-based restrictions. See Good News Club v. Milford Central School, 121 S. Ct. 2093 (2001); Rosenberger v. University of Virginia, 515 U.S. 815 (1995); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993). (21)

The City and the church have admitted that the City could never impose and enforce such restrictions directly without violating the Constitution. (App. at 1678, 1691) The question that arises is whether the City can impose and enforce such restrictions indirectly. It is firmly established that the government cannot do directly what it would be prohibited from doing indirectly – and that includes conditioning enjoyment of a public right or benefit, such as access to a public plaza and thoroughfare protected by an easement, on the compliance with unconstitutionally discriminatory restrictions on free speech:

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests – especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Speiser v. Randall, 357 U.S. 513, 526 (1958). Such interference with constitutional rights is impermissible.”

Perry v. Sindermann, 408 U.S. 593, 597 (1972).

The church is understandably sensitive about stories in the local press about the hapless Salt Lake City resident who reportedly wandered on to the Main Street Plaza wearing a now-famous local t-shirt advocating “10% Beer and 3.2% Tithing” – a light-hearted and, to any but the most prickly observer, entirely inoffensive comment on Utah’s liquor laws. Whether it is true or anecdotal, the story serves as a most illuminating hypothetical. The church does not and cannot deny that is has the City-granted power to “deny access” to the Plaza by any member of the public who might wear such a t-shirt, if in its sole discretion it determines that the person is engaged in “offensive speech or dress” and therefore exceeding the scope of the easement. As the City concedes, that includes the power to “effect a citizen’s arrest pursuant to Utah law” or “declare the person a trespasser and call the police for appropriate action,” in which case the police or the courts would have to “investigate the facts and make an independent decision regarding the appropriate action.” (Def. Br. at 43-44) (22)

Neither the City nor the church addresses Appellants’ argument about the dilemma this situation creates for the City. What happens when the police or courts “investigate” a claim that the putative “trespasser” has exceeded the scope of the easement? What standards will inform their “independent decision regarding the appropriate action”? That dilemma is perfectly captured in the government’s response to similar situations in Venetian and Faneuil Hall. The police in both cases properly declined to arrest the demonstrators congregated on the “private” sidewalks and lanes; although the Faneuil Hall Marketplace’s private security officers then effected a citizen’s arrest, all criminal charges were predictably dismissed.

In short, in both cases the government recognized that it is impossible to enforce a private property owner’s claimed “right to exclude” when the public has a right to be on the property, and when the claimed basis for the exclusion is the exercise of constitutionally protected rights. That is because the government cannot, directly or indirectly, criminalize the enjoyment of a public right – the right of “access and passage” on “sidewalks or walkways intended for that purpose” – solely because of “offensive speech or dress” or some other constitutionally impermissible basis. (23)

The City and the church try to avoid this dilemma by elevating form over substance. They argue that the restrictions are not viewpoint-based because “[t]here is no right for anyone under the ‘access and passage only’ easement to engage in First Amendment expression”; members of the public have the right “to access and pass across the property and nothing else.” (Int. Br. at 55, 56 (emphasis added); see also Def. Br. at 40 (“there is no right under the Deed for the City or members of the public to exercise free speech at all on the easement property, regardless of whether such speech is in favor of or in opposition to the LDS Church.”))

As Appellants argued in their opening brief, the idea of completely separating the right to be in public from the right to express oneself in public is bizarre. (App. Br. at 35) According to the church, members of the public can stroll across the property but before they do so they must be figuratively stripped and gagged. They cannot even hold hands – especially if they are gay or lesbian – or do “something else” that would constitute any “expression” beyond the strict terms of the easement. But does anyone believe the church would ask a young heterosexual couple, or a husband and wife, who might stroll across the Plaza holding hands, to cease and desist or face arrest? Unless it consistently does so, what can be the justification for arresting anyone on the property based on his or her expression, except that the church finds the viewpoint expressed “offensive”? It is inevitable that a court called upon to consider a charge of criminal trespass based not on someone’s traipsing through the flower gardens or taking a dip in the fountain, but on some form of core First Amendment expression, will have to confront the fact that the only basis for the charge is that the church finds the expression “offensive.” It is simply disingenuous for the church to maintain otherwise. See Chicago ACORN, supra, 150 F.3d at 699 (policy motivated by ostensibly neutral economic desire to generate favorable publicity like to favor the political establishment; “pariahs need not apply”).

The church and amici emphasize the church’s right to approach members of the public who might wish to enjoy the right of public access to the pedestrian plaza and thoroughfare and proselytize them with the church’s own religious message – which includes positions on some of the most controversial social and political issues of the day – even if they have no interest in the church’s message. Appellants fully respect the church’s right to express its religious, social, political and moral views on the property, and recognize that the government has no obligation to protect them from unwanted messages. See Schenk v. Pro-Choice Network of Western N.Y., 519 U.S. 357, 383 (1997) (declining to recognize a supposed “right of the people approaching and entering the facilities to be left alone”). By the same token, the government has no right to favor the church’s views and to protect the church from criticism. See Burstyn v. Wilson, 343 U.S. 495, 504 (1952) (striking down New York statute providing that “no religion, as that word is understood by the ordinary, reasonable person, shall be treated with contempt, mockery, scorn and ridicule”; “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine”). But that is precisely what the City has done here: it has allowed the church to surround itself with all the trappings of an attractive public square and handed the church a megaphone to declare its views while simultaneously stripping and gagging the public into absolute, automaton-like silence as a condition to their enjoyment a public right of access to the square. It is an understatement to say this situation makes a mockery of the very first condition to the City’s sale of Main Street: that the property be “planned and improved so as to maintain, encourage, and invite public use.” (App. Br. Add. B at 6)

The City and the church argue that this otherwise totally impermissible situation is somehow rendered permissible because there are alternative public forums in which plaintiffs remain free from such discriminatory restrictions on their right of access, and the district court so found. See 146 F. Supp. 2d at 1173. There are indeed other public streets and sidewalks in the vicinity, but as Justice Kennedy recently reiterated, “’one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.’” Hill v. Colorado, 530 U.S. 703, 782 (2000) (Kennedy, J., dissenting), quoting Schneider v. State (Town of Irvington), 308 U.S. 147, 163 (1939)).

The church also argues that to recognize constitutional limits on the government’s ability to do indirectly what it cannot do directly “would unfairly disrupt well-settled expectations,” including the church’s expectation that it would be able to exercise absolute control over expression on the property at issue here. (Int. Br. at 34-36) Amici similarly claim that to prohibit the government from reserving a right of access and passage on the one hand and imposing one-sided restrictions on free speech on the other will prevent the government from ever selling public property. (Suth. Br. at 12; IMLA Br. at 23-24)

Appellants wish to be clear in addressing these concerns. The Supreme Court has long held that, because of the important function they serve in facilitating the exercise of fundamental First Amendment rights by those without vast wealth, power or influence, traditional public forums, which Main Street indisputably was before its sale to the church, “have immemorially been held in trust for the use of the public.” Hague v. CIO, 307 U.S. 496, 515 (1939). Responsible stewardship of that public trust requires, at a minimum, that the government not hide behind property law to sanction discrimination. See Evans v. Newton, supra; Shelley v. Kraemer, 324 U.S. 1 (1948) (striking down agreements among private property owners to exclude persons of designated races).

Nothing requires that unlimited expression be accommodated in the Plaza. Rather, as with any public forum, the City (in the proper discharge of its role as trustee of the public trust) could have identified reasonable, neutral, time place and manner regulations to ensure that free speech activities would not unreasonably interfere with the Plaza’s use as a public gathering place and thoroughfare. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). That is the approach the City should have adopted, and to which the district court should have held it, in evaluating the challenged restrictions. Requiring the government to respect such principles will not unduly restrict the government’s ability to sell property.

As for the church’s expectations, it is a fundamental error to give primacy to ensuring that a private party enjoys the benefit of its bargain over the First Amendment rights that belong to all of the people. That is particularly true here, where the Deed expressly envisions that if the “conditions, limitations and restrictions” on the public’s right of access and passage set forth in Section 2 of the Deed are declared unconstitutional, the public’s right remains. (24) The City’s irreducible demand in this case was that it be able to reserve a pedestrian easement; the church’s irreducible demand was that it would have absolute control over expressive activity on the property. The parties clearly understood the inherent tension or conflict between these demands, foresaw the possibility that the church would end up disappointed, and contractually assigned the risk of that outcome. In effect, the church made an $8.4 million gamble. As its vigorous, capable arguments before this Court attest, it is a sophisticated corporation, fully able to protect its own interests. This Court has no obligation other than to hold the City to its constitutional duty.

C. THE RESTRICTIONS TO WHICH THE CITY AGREED VIOLATE THE ESTABLISHMENT CLAUSE; APPELLEES’ ARGUMENTS TO THE CONTRARY, AND THE DISTRICT COURT’S ERRONEOUS RULING, MISS THE MARK ENTIRELY, BECAUSE THEY FOCUS ON THE CITY’S SALE OF THE PLAZA RATHER THAN THE CITY’S IMPOSITION OF RESTRICTIONS ON THE PUBLIC’S USE.

The opposing parties consistently have either misunderstood or intentionally misrepresented Appellants’ claim that the City’s conduct violates the Establishment Clause. As a result, the district court ruled on the wrong issue: whether “the sale of the property meets the Lemon test.” 146 F. Supp. 2d at 1174 (emphasis added). (25) The confusion continues in the briefing before this Court, where the City repeatedly insists “[t]he sale of the subject property was clearly for secular purposes, did not constitute an endorsement of religion and did not create excessive entanglements between government and religion.” (Def. Br. at 22-23, emphasis added) This confusion is not attributable to the conceptual difficulties that underlie many Establishment Clause claims; to the contrary, Appellants’ Establishment Clause claim is simple and straightforward.

Appellants have never challenged the City’s sale of the property. If the transaction had consistently been described and approved as a fee simple sale of Main Street so that the church could create an “ecclesiastical park” walled off from the downtown pedestrian grid, rather than as a continuing, integral part of that grid, albeit with pleasant surroundings – “a little bit of Paris in Salt Lake City with a boulevard or some nice park” with “a very . . . enticing and desirable urban spirit and urban feeling to it” (see A1159) – then arguments about whether the sale itself violated the Establishment Clause might be relevant. But that is not what happened here.

The undisputed and incontrovertible evidence in the record shows that what did happen here is that the Main Street transaction started out as a proposal to create a park-like gathering place and pedestrian thoroughfare (see, e.g., A1098-1102); that, consistent with that concept, the Planning Commission approved the transaction subject to an express condition that it be regulated by neutral time place and manner restrictions such as those applicable in any other public park (see A1216, 1218-20); and that, in response to a demand from the church, the City administration dropped that material condition at the last minute (see A1660-78) and agreed instead to an easement containing restrictions that have allowed the property to be turned into a “private religious garden” or “ecclesiastical park.” (See App. Br. Add. C, Deed § 2)

As demonstrated above in Section II B, the easement expressly grants the church the power to exclude members of the public who engage in “offensive . . . speech, dress or conduct.” (App. Br. Add. C, Deed § 2.2) At the same time, nothing in the easement restricts the church’s ability to allow expression of a viewpoint it does not find “offensive” on any subject of its choosing; to the contrary, the easement and other provisions of the Deed expressly protect church-approved expression. (Id. §§ 1.4, 2.2) Whatever secular purposes and effects may have been intended by the transaction as originally envisioned and approved, the primary purpose and effect of the restrictions imposed on the public’s use of the property are to favor and advance the Mormon religion, in direct violation of the requirement of governmental neutrality towards religion. See Rosenberger, supra, 515 U.S. at 839.

1. The City’s Restrictions Serve No Secular Purpose.

The City and the church readily admit that the purpose of the restrictions in the easement is to give the church absolute expressive control over the public’s use of the Main Street Plaza – i.e., to promulgate its own message while silencing any and all other messages. (See Def. Br. at 11, Int. Br. at 14-15, 60) (26) The City and the church have never identified, however, any secular purpose for abandoning the express condition that the Main Street Plaza be regulated by neutral time place and manner restrictions such as those applicable in any other public park and granting the church exclusive expressive control over the public’s use of the Plaza.

One might imagine secular justifications for a neutral ban on leafleting in an area that features fountains, flowerbeds and other aesthetic attractions. One might even imagine secular justifications for neutral regulations limiting large protests to areas designed or otherwise suited to accommodate them, as the Planning Commission discussed. (27) But it is difficult to imagine any secular purpose behind allowing the church to use the property for all kinds of expressive purposes while excluding members of the public based on speech, dress or conduct the church might deem “offensive.”

The only conceivable purpose of such a restriction can be to facilitate speech of which the church approves and to protect it against speech of which it does not approve. The only reasonable inference to draw is that the City’s purpose was to advance religion. That is a straightforward violation of the Establishment Clause, regardless of the formulation of the applicable test. (28)

2. The City’s Restrictions Have Purely Sectarian Effects.

The effects of the easement and the restrictions to which the City agreed are clear and undeniable: (1) They strip members of the public of pre-existing First Amendment rights they historically enjoyed when traversing Main Street between North Temple and South Temple; (2) they invite, channel or “funnel” pedestrians, even those destined for downtown shopping or other secular attractions, onto the property; (3) they allow the church to proselytize those pedestrians, even though they may merely be using the sidewalks or walkways on the property for their intended use as a pedestrian thoroughfare or “funnel” to the downtown business district; and (4) they allow the church to protect itself from entertaining any discussion or criticism in response to its proselytizing by subjecting anyone who the church determines to be engaged in “offensive” speech to arrest. Just as they have failed to offer any secular purpose for the restrictions at issue in this litigation, the City and the church have failed to identify any secular effect achieved by the restrictions. To the contrary, the church emphasizes all the benefits it enjoys from its expressive control over the property. (Int. Br. at 23-25)

In short, the City has allowed the church to create a unique platform in the heart of downtown to showcase its message, and has handed it a megaphone to proclaim that message, but has prohibited all other speakers from even responding, let alone sharing the platform and the megaphone. As the district court emphasized, the potential audience numbers millions every year. See 146 F. Supp. 2d at 1178. At the same time, the City has empowered the church to deny access to people expressing a different or conflicting message. (29) Thus, even if someone seeking only to use the Plaza as a pedestrian plaza and thoroughfare is directly approached and proselytized with a sectarian message, she must remain mute and pass in total silence or face the threat of arrest. Even if that falls short of direct coercion, the clear effect is to advance the Mormon religion. That is underscored by the fact that all of the secular objectives the City, the church and the district court listed in support of the sale of Main Street to the church could have been achieved without granting the church exclusive expressive control over the property.

The City argues that it is not an impermissible effect to allow the expression of a religious viewpoint, among other viewpoints, in a public forum, citing this Court’s unpublished decision in Pryor v. Coats, 203 F.3d 836 (10th Cir. 2000). (See Def. Br. at 47) Appellants do not disagree, and indeed champion the inclusion of religious viewpoints on subjects otherwise open for public discussion in appropriate forums. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 770 (“Religious expression cannot violate the Establishment Clause where it (1) is purely private and (2) occurs in a traditional or designated public forum, publicly announced and open to all on equal terms”) (emphasis added). But unlike Pryor and such other cases as Rosenberger and Lamb’s Chapel, this case involves the opposite situation, where the government itself has guaranteed public “access” to property but simultaneously limited expression to a single, religious viewpoint. Pryor would be analogous only if the law school had allowed the Christian Legal Society to post a detailed explication of its views on a bulletin board but had restricted all others to posting blank pieces of paper.

3. The City’s Restrictions Result In Excessive Entanglement Between The City And The Church.

The restrictions to which the City agreed also directly threaten a degree of entanglement that is directly contrary to the Supreme Court’s consistent interpretation of the Establishment Clause. This is not a function of anything Appellants are arguing. It is a function of the fact that the City has sold property to the church and allowed the church to create a sectarian shrine while insisting that pedestrians be able to walk into and pass through the shrine, subject to the church’s power to exclude based on “offensive dress, speech or conduct.”

The degree of entanglement goes well beyond the reality, discussed above, that inevitably someone will be hauled before the police or a court and charged with criminal trespass for violating the terms of the easement. Resolution of such a case will inevitably enmesh the government in the beliefs and sensitivities of the church – “a fusion of governmental and religious functions” that violates the core rationale underlying the Establishment Clause. See Abington School District v. Schempp, 374 U.S. 203, 222 (1963). It even goes beyond the fact, discussed below and in Appellants’ opening brief, that in exercising its power to deny access to the Plaza based on “offensive speech, dress or conduct” the church is performing a quintessentially governmental function. It goes to the very core of what the City and the church agreed to do here. What more could the City have done, short of adopting Mormonism as the official religion, to endorse the church than to dedicate the principal “funnel” to the central downtown to the expression of a single, sectarian religious message?

4. Grendel’s Den Is Not A Different Test, But A Closely Analogous Case Establishing A Discrete Establishment Clause Violation.

Appellants do not suggest that this Court has to adopt a new legal test to analyze the easement and its restrictions under the Establishment Clause, nor do they disagree with the opposing parties’ articulation of the basic legal tests set forth in cases such as Lemon v. Kurtzman and Lynch v. Donnelly. Appellants argue instead that the City’s adoption of the above scheme is a textbook violation of virtually any interpretation of those tests, because it serves no secular purpose, has a primarily sectarian effect, and fosters excessive entanglement between the City and the church. They also argue, however, that it is a particularly clear violation of those tests as applied in Grendel’s Den, because it empowers the church to perform the quintessentially governmental function of deciding who may and who may not use a public easement based on its own purely sectarian standards.

Once again, this claim centers on the church’s power to exclude. The most egregious aspect of that power is that, as the Supreme Court observed in Grendel’s Den, it “is standardless, calling for no reasons, findings or reasoned conclusions. That power may therefore . . . be employed for explicitly religious goals.” 459 U.S. at 125. That power was the linchpin of the transaction from the church’s perspective. (Int. Br. at 14-15) One can only assume the church intends to exercise it, even if for obvious reasons it has refrained from doing so during the pendency of this litigation. While one might wish to assume that the church will exercise its power to exclude in a religiously neutral way, there is nothing in the Deed that requires it. Id. To the contrary, the church and amici insist the church must be able to wield its power over the property to advance its purely sectarian ends. (Int. Br. at 64; Sectarian Amici Br. at 22) Therefore, as the Court concluded in Grendel’s Den, it does not strain Establishment Clause precedent to conclude that the restrictions to which the City agreed “can be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.” Id.

5. The Opposing Parties’ Precedents Are Not Controlling.

The opposing parties rely on cases such as Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), and Paulson v. City of San Diego, --- F.3d ---, 2001 WL 946353 (9th Cir. Aug. 22, 2001), to argue that the City cannot face any Establishment Clause problem here because it has sold the property. (Def. Br. at 30-31, 53-55; Int. Br. at 51-52) Neither of those cases, however, involved the unique situation here, where the City has reserved an easement over and across ostensibly religious property. The church argues against Appellants’ efforts to identify the easement’s right of access and passage with the Main Street Plaza sidewalks, so let’s assume the church is right. That just means the public property in this case (the easement) is physically intertwined with and inseparable from the religious property (the Plaza). The reason the cities were able to avoid Establishment Clause problems in Marshfield and Paulson is that the public property was physically separable, and was in fact physically separated, from the religious property. That remedy is not possible in this case. To avoid Establishment Clause problems here, so long as the easement survives, either the easement must be identified with the “sidewalks or walkways intended for that purpose,” as the Deed envisions and as Appellants reasonably suggest, or the property must be stripped of all its religious imagery and returned to what it was originally proposed to be: an urban pedestrian plaza and thoroughfare.

In summary, the City has tried to do the impossible in this case, by guaranteeing public “access and passage” on the one hand and on the other hand allowing the church to “deny access” based on “offensive” speech. It may well be that there is no precedent for the City’s action, and that this Court will have to return to the fundamental principles that underlie both the Free Exercise Clause and the Establishment Clause. Those equally important First Amendment provisions are often viewed as being at odds. Here, notwithstanding the church’s and amici’s overwrought arguments to the contrary, there is no conflict whatsoever. There is no threat that, by recognizing free speech rights are inseparable from a public thoroughfare, the government will undermine or destroy the Mormon church’s message in any way. The only “threat” can come from a robust presentation and discussion of that message in the marketplace of ideas. Appellants are confident the church’s message can survive even if it is subjected to robust challenge.

III. CONCLUSION

In this case, Salt Lake City has purported to abdicate its responsibility to regulate the property in accordance with neutral, constitutionally permissible standards, and has empowered the Mormon church to regulate the property in accordance with its purely sectarian standards. The legal question is whether there are any constitutional limits on the City’s ability to do so. Appellants believe the answer is clear, unequivocal and firmly rooted in law: “The state can no more abdicate its trust over property in which the whole people are interested, so as to leave them entirely under the control of private parties, than it can abdicate its police powers in the administration of government and the preservation of the peace.” Illinois Central Railroad Company v. Illinois, 146 U.S. 387, 453 (1892).

DATED this 9th day of November, 2001.

Stephen C. Clark
ACLU of Utah
Attorney for Appellants

IV. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B) I hereby certify that the foregoing brief complies with the type-volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. I make this certification in reliance on the word count provided by the word count tool of the word processing system on which this brief was prepared (Microsoft Word), which indicated a total of 10,081 words in Sections I through III of this brief.

Stephen C. Clark
ACLU of Utah
Attorney for Appellants

V. CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 9th day of November, 2001, I caused one original and seven (7) copies of the foregoing APPELLANTS’ REPLY BRIEF to be mailed via U.S. Mail, 1st class, postage prepaid, to the following:

United States Court of Appeals
Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257

I FURTHER CERTIFY that on the 9th day of November, 2001, I caused two (2) true and correct copies of the foregoing APPELLANTS’ REPLY BRIEF to be mailed via U.S. Mail, 1st class, postage prepaid, to each of the following:

ROGER F. CUTLER
Salt Lake City Attorney
451 South State Street, Suite 505
Salt Lake City, Utah 84111

Attorney for Defendant/Appellee

VON G. KEETCH
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84145-0120

Attorney for Intervenor/Appellee

MAXWELL A. MILLER
Parsons Behle & Latimer
201 South Main Street, Suite 1800
Salt Lake City, UT 84111

Attorney for Amicus Curiae
The Sutherland Institute

L. MARTIN NUSSBAUM
Rothberger Johnson & Lyons LLP
90 South Cascade, Suite 1100
Colorado Springs, CO 80903

Attorney for Amici Curiae
Association of Christian Schools International et al.

GENE C. SCHAERR
Sidley Austin Brown & Wood
1501 K Street, N.W.
Washington, D.C. 20005

Attorney for Amici Curiae
International Municipal Lawyers Association et al.

FOOTNOTES

1. See Def. Br. at 25; see also Int. Br. at 29 (“the Property is private and Plaintiffs’ free-speech claim necessarily fails”); Suth. Br. at 5 (“third parties have no expressive rights on private property”).

2. The Utah case on which the City relies to argue this Court must recognize the church’s right to quiet enjoyment underscores the difference between the property at issue there – Temple Square – and the property at issue here. See Corporation of the President v. Wallace, 590 P.2d 343, 344 (Utah 1979) (upholding injunction against a person’s “entering upon Temple Square in Salt Lake City in circumstances which will interfere with religious services being conducted therein”). Temple Square has never been a traditional public forum, is surrounded by walls and fences, and otherwise is and always has been purely private property.

3. These include not only the easement for pedestrian access and passage, but also “an easement over and across the surface of the Property for access and passage by emergency and public safety personnel and vehicles, including, without limitation, police, ambulance, paramedic and firefighting personnel and vehicles.” (Addendum C, Deed § 1.1) They also include a prohibition on erecting “any occupied buildings on the Property” – an extreme encumbrance on the development and use of property in the heart of a prime downtown commercial and residential district. (Id., § 1.4)

4. This language is not in the Deed but in the Ordinance authorizing the sale of the property. The City and the church largely ignore the Ordinance, even though the closure of Main Street that was necessary to effect the sale is expressly conditioned on compliance with the conditions in the Ordinance. Id. at 3. The conditions in the Ordinance are therefore as relevant and binding as the terms of the Deed.

5. Similarly, in Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc), the court held that a pedestrian mall which anchored the Fairfax County Government Complex is a public forum for expressive activities, notwithstanding the government’s attempt to define the property as something other than a public forum. The decisive factors were that the mall had the form and function of a traditional public forum in its physical characteristics and in the manner that the property was being used. “It is an open public thoroughfare best characterized as a park or mall [and] its objective use is as a place of open access, which is eminently compatible with expressive activity.” 196 F.3d at 190. A number of other courts have similarly emphasized function in deciding whether or not the public space at issue is a traditional public forum. See Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937 (9th Cir. 2001); Chicago ACORN v. Metropolitan Pier Exposition Authority, 150 F.3d. 695 (7th Cir. 1998); Henderson v. Lujan, 964 F. 2d 1179, 1182 (D.C. Cir. 1992); Citizens to End Animal Suffering v. Faneuil Hall Marketplace, 745 F. Supp. 65, 76 (D. Mass. 1990). Each of these cases involved public space claimed to have been withdrawn from public forum status or never established as a public forum in the first place. The dispositive factor in each case was the conclusion that the property in question functioned as an unrestricted thoroughfare.

6. The Lloyd Court made this very clear. First, it adopted Justice White’s description of walkways open to the public in private shopping malls in Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308, 338 (1968): “The invitation is to shop for the products which are sold. There is no general invitation to use the parking lot, the pickup zone, or the sidewalk except as an adjunct to shopping. No one is invited to use the parking lot as a place to park his car while he goes elsewhere to work. The driveways and lanes for auto traffic are not offered for use as general thoroughfares leading from one public street to another.” Lloyd Corp., 407 U.S. at 565 (emphasis added). Then, it emphasized twice that the property at issue was used “for private purposes only.” Id. at 567, 568. Central Hardware Co. v. N.L.R.B., 401 U.S. 539, 546 (1972), on which the City relies, underscores the point: the First Amendment does not apply to “action by the owner of private property used only for private purposes.” (Emphasis added.)

7. See Int. Br. at 32-33, 42-45, rebutted below in Section II. A. 3.

8. The church mocks Appellants’ entirely reasonable desire to ply the sidewalks, rather than the fountains or the flowerbeds, to exercise their First Amendment rights on the Plaza. (See App. Br. at 37, referring to “plaintiffs’ novel slice-up theory”) To Appellants, it makes sense to use the sidewalks or walkways – one of which is by design and must be by deed large enough to permit “access and passage by emergency and public safety personnel and vehicles, including, without limitation, police, ambulance, paramedic and firefighting personnel and vehicles.” (App. Br. Add. C, Deed § 1.1) Appellants would be satisfied if the City and the church had agreed to dedicate some specific portion of the property to public discussion and debate in the interest of facilitating the free and open exchange of views. Indeed, that would have been a most appropriate way to recognize that the church owes its extraordinary growth in part to its ability to use public attractions to spread its message all over the world (including, for example, the famous, historic “speaker’s corner” in London’s Hyde Park, where many Mormon missionaries have shared their message). The City and the church had an opportunity to replicate that model of freedom in action; alas, they chose instead to follow a different model.

9. Directly north of downtown is a crowded residential area, with apartment buildings and private homes. If one were walking along north Main Street to work on south Main Street in the heart of downtown but were unable to walk across the Main Street Plaza from North Temple to South Temple, he would have to make a detour of 3/8th of a mile, due to the fact that the City’s Mormon founders laid out downtown Salt Lake City in a symmetrical “grid” system, consisting of city blocks 1/8th of a mile square.

10. The church insists that the Main Street Plaza sidewalks “are not ‘seamlessly connected to public sidewalks on either end’ (as Plaintiffs contend) but rather are perpendicular to the public sidewalks on North Temple and South Temple.” (Int. Br. at 45) This is the kind of sophistry that underlies the church’s attempt to limit the Supreme Court’s longstanding protection of public thoroughfare sidewalks to what the church calls “true sidewalks.” (Int. B. at 47) (emphasis in original) This Court has recently rejected the contention that only curb-and-gutter sidewalks running in a straight line along a public street qualify as “true sidewalks” entitled to full First Amendment protection. Faustin v. City and County of Denver, --- F.3d. ---, 2001 WL 1149175 (10th Cir. Sept. 28, 2001).

11. The court also stated: “Indeed, the lanes are similar to the public street described in Heffron v. Int’l Soc. For Krishna Consciousness, Inc., 452 U.S. 640, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981), which was ‘continually open, often uncongested, and constitute[d] not only a necessary conduit in the daily affairs of a locality’s citizens, but also a place where people [could] enjoy the open air or the company of friends and neighbors in a relaxed environment.’ Id. at 651, 101 S. Ct. at 256.” Id. at 76 n.30.

12. The S.O.C. decision was handed down about two months before the Ninth Circuit’s decision in Venetian. While the Nevada Supreme Court may have been unpersuaded, at the preliminary injunction stage, by a federal district court decision, it is not at all clear the Ninth Circuit’s persuasive reasoning will not ultimately prevail with the fractured Nevada Supreme Court.

13. The sidewalks at issue in both Mirage and Venetian were far from the typical “curb and gutter” sidewalks that the church insists are the only “true sidewalks” for First Amendment purposes. (See Int. Br. at 47, emphasis in original) Like the sidewalk incorporated into the piazza in front of the Venetian Hotel, the sidewalks at issue in Mirage reflect the “theme” of the adjacent hotels. See Mirage, 23 P.3d at 245 (noting that the sidewalk in front of the Treasure Island property was “constructed principally of wooden planks” and was “elevated several feet off the ground” to provide a platform for viewing the hotel’s “Buccaneer Bay” show). Therefore, as discussed below, the district court in this case plainly erred in finding that the relatively minor, cosmetic changes to the Main Street Plaza Sidewalks (granite pavers, a few inches’ displacement, slight elevations in grade and so on) somehow suffice to eradicate their historic status as traditional public forums.

14. Besides its substantive arguments, the church makes the specious procedural argument that Appellants “ignore” Hawkins, and that this alone should be “fatal” to this appeal. (Int. Br. at 29-30) Appellants made clear in their opening brief their view that Hawkins simply does not control this case, because the property here is not only “analogous to” but expressly comprises what this Court said the property in that case does not comprise: “a public right of way or thoroughfare.” (See App. Br. at 26 and n.5)

15. At the preliminary injunction stage, the Nevada district court reached a similar conclusion on somewhat similar facts (for example, the property is covered with a metal canopy). ACLU v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998), appeal of preliminary injunction denied, 168 F.3d 497 (9th Cir. 1999) (unpublished decision, available at 1999 WL 65130). Although the City asserts the Ninth Circuit treated the plaintiffs’ substantive arguments with “disfavor,” the Ninth Circuit simply ruled that the district court had not abused its discretion in denying the motion for preliminary injunction; it did not review de novo or otherwise consider the substantive arguments.

16. In determining what limits may be placed on free speech, the Supreme Court has “often focused on the ‘place’ of that speech, considering the nature of the forum the speaker seeks to employ.” Frisby v. Schultz, 487 U.S. at 479. Following the Supreme Court’s advice, this Court recently said: “Before we may properly characterize the forum at issue, we must first identify its boundaries.” Wells v. City and County of Denver, 257 F.3d 1132, 1145 (10th Cir. 2001) (focusing on the steps of the city building). And in Chicago ACORN v. Metropolitan Pier Exhibition Auth., supra, Judge Posner considered the unique features and uses of each of the four “elements” of the property under consideration to determine the First Amendment status of each element. Thus the church is simply wrong when it argues that “nothing” in the case law supports Appellants’ focus on the sidewalks as the relevant forum for purposes of First Amendment analysis. (See Int. Br. at 37)

17. The district court also relied on the fact that the “bollards, street lights and garbage cans” adorning the sidewalks on the Plaza “are identical to those used” on adjacent church properties. See 146 F. Supp. 2d at 1167. The sidewalks all around those adjacent church properties all feature the same “bollards, street lights and garbage cans” (Int. Br. at 22) but, as the church emphasizes, those sidewalks are still public (id. at 26-27).

18. The opposing parties repeatedly insist that the property is physically separated from the adjoining public property and “unmistakably marked as Church (not City) property.” One conjures images of barbed-wire fences and “No Trespassing” signs. Instead, what one sees, if one knows what to look for and looks very carefully, is the name of the church in small, faint etchings in the fountains at the north and south entrances to the Plaza. (See, e.g. A1440, 1442) There is no mention in those etchings or anywhere else of the fact that the Plaza is “private property.” There is no fencing, nor can there be under the Deed. And there is certainly no indication that one enters at the risk of being arrested for “offensive speech, dress or conduct.” (Even if there were, that vague warning would not be of much help to hapless pedestrians.) The district court, without even viewing the Plaza (notwithstanding a stipulated Motion to View), plainly erred in finding that the minor changes to the sidewalks unmistakably demarcate a private enclave.

19. The district court upbraided plaintiffs for failing to rebut the church’s factual submissions. 146 F. Supp. 2d at 1168-69. This is an example of the extent to which the district court erred in indulging factual inferences against plaintiffs, rather than in their favor. The Plaza was opened to the public in October 2000 – after the close of discovery in this case, and just a few weeks before summary judgment briefs were due. Therefore, none of the parties had an opportunity to discover facts about the actual use of the Plaza – which may explain the church’s successful attempt to convince the district court improperly to rely on the number of employees and visitors as proxy for the number of people who use the plaza solely to access the church’s buildings and attractions.

20. Taking full advantage of this power, the church “uses the Plaza for displays, exhibits, commemorations, dissemination of information, celebrations, gatherings, and special events – all religiously oriented” – and allows its proselytizing missionaries to “routinely use the plaza for missionary purposes.” (Int. Br. at 24)

21. The church is able to ignore this fact by suggesting that any challenge to the prohibition on “offensive” speech is “not ripe,” and that the district court properly did not consider the effect of this provision because “Plaintiffs have not claimed that they want to engage in such conduct and have not shown that these provisions are likely to be enforced against them.” (Int. Br. at 62) This suggestion is both factually and legally wrong. Appellants have made clear throughout the case, and made clear at the oral argument to which the church cites, that they seek “to engage in lawful expressive activity on the property,” not “conduct that might properly be prohibited under neutral city ordinances.” (Supp. A25) The district court itself recognized that the plaintiffs “want the right to undertake activities that in [the church’s] mind might” be “offensive” and destroy the ambience of the Plaza. (Id. at 47) It is well settled that plaintiffs can mount a facial challenge to restrictions on lawful expressive activities under the circumstances present in this case. See City of Lakewood v. Plain Dealer Publishing, 486 U.S. 750 (1988).

22. Utah Code Ann. § 77-7-3 provides in part: “A private person may arrest another for a public offense committed or attempted in his presence.”

23. The church suggests this could happen only if the person is “truly attempting to engage in First Amendment expression.” (Int. Br. at 55 and n.6) Nothing in the Deed imposes that additional intent requirement; to the contrary, the Deed empowers the church to arrest members of the public on the property regardless of their subjective intent. The only requirement is that the church consider the person to be engaged in “offensive speech, dress or conduct.”

24. The Deed contains a severability clause: “In the event that it is finally determined by a court having jurisdiction over Grantee or the Property that any of the terms, conditions, limitations or restrictions set forth in this instrument are unconstitutional or otherwise unenforceable, the remaining terms, conditions, limitations and restrictions set forth herein shall remain binding and enforceable.” (App. Br. Add. C, § 6.2).

25. See also id. at 1178-79 (concluding that “[t]he secular purposes of the City’s sale of the property to the [church] are numerous and undisputed,” “the principal or primary effects of the sale are those stated secular purposes the City expressed when it made the sale,” and “the City has not entangled itself in the recognized religious activities of the [church] by selling the [church] real property for full market value) (emphasis added).

26. It is worth noting that neither the City nor the church ever admitted this until this litigation was filed. In fact, the church said exactly the opposite at the April 13 City Council meeting – “The Planning Commission last month, as you know, voted seven to one to approve this with various conditions. We support those conditions, we’ve tried to incorporate those over the last few weeks with the City’s Administration and Legal Department” (A1273) (emphasis added) – even though it had categorically rejected the condition that the property be regulated like a public park during its private April 5 meeting with City officials. At best, this statement is as misleading as the City Attorney’s statement a few days earlier that the final documents were “consistent with the concept approved by the Planning Commission.” (A1591)

27. The church correctly notes that the Planning Commission discussed a ban on “organized picketing” or demonstrations, but that discussion centered on, and was ultimately reduced to, the concept of a neutral ban on such activities. See App. at 1216 (“One thing the Commission could do to guarantee that no one is excluded from the pedestrian plaza is to forward a recommendation to the City Council that there be no more restrictive use than is currently permitted in a public park with the exception that there can be no organized picketing, demonstrations or protests.”) (emphasis added).

28. The City wanted to create a pedestrian mall. Why was the church brought in on the deal in the first place? The record shows that the church would only go through with the deal if the City agreed to the express condition that the church have absolute expressive control over the property. This benefits the church and the church only. The fact that the Church paid fair market value for the property is not only irrelevant, but it fails to even address the Establishment Clause objection. While the sale may have been an arms length deal, that does not change the fact that the church purchased a condition that has the sole purpose and effect of protecting the church. The church contemplated all this when it negotiated the exclusion of all other speech. What could be clearer evidence of improper motive and purpose?

29. The City argues that “a pedestrian voluntarily walking through the Church Plaza [sic] that may observe a religious message is not coerced, by the City, into the support of the LDS Church.” (Def. Br. at 51) The City cannot deny, however, that at the very least the pedestrian is “coerced, by the City” into absolute silence. The only effect of this is to protect the church’s religious message from any discussion – and therefore to advance that message.