home > newsroom ACLU of Utah Files Brief in Case Challenging Constitutionality of Main Street Plaza Restrictions; Relies on Recent Federal Appeals Court Decision FOR IMMEDIATE RELEASE Monday, August 13, 2001 SALT LAKE CITY--The ACLU of Utah filed a federal appeals court brief today in its case challenging restrictions on the Main Street Plaza. The ACLU relied on a ruling issued last month by the Ninth Circuit Court of Appeals that bolsters the public’s right to engage in free speech activities on private property that serves as a public thoroughfare. The ACLU said that case strengthens its claim that the restrictions applying to the Main Street Plaza are unconstitutional. In a case brought against the Venetian Hotel in Las Vegas by the ACLU of Nevada and others, the Ninth Circuit considered a set of circumstances nearly identical to those involved in Salt Lake City’s sale of a downtown block of Main Street to the Church of Jesus Christ of Latter-day Saints. In 1999, in exchange for acquiring a public right-of-way it needed to build a new hotel and casino, the Venetian agreed to “construct a private sidewalk connecting to public sidewalks on either side of its property … for the purpose of providing unobstructed pedestrian access.” When labor organizers held a demonstration in front of the Venetian Hotel, a legal question arose as to whether the sidewalk was a traditional public forum, and therefore entitled to First Amendment protections, notwithstanding the fact that it was private property. On July 12, the court ruled in favor of free speech, stating: “As a ‘thoroughfare sidewalk’ seamlessly connected to public sidewalks at either end and intended for general public use, the sidewalk in front of the Venetian is ‘the archetype of a traditional public forum.’” In addition, the court made clear that although the sidewalk is on private property, “by dedicating the property to public use, the owner has given over to the State or to the public generally ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,’ the right to exclude others. The private owner can no longer claim the authority to bar people from using the property because he or she disagrees with the content of their speech.” Stephen Clark, ACLU of Utah legal director, noted that the Venetian case is a very strong precedent for the ACLU of Utah’s Main Street case. Although the church acquired the property, it promised to keep the Plaza open for public access and passage at all times, day and night, pursuant to an easement. At the same time, the restrictions allow the church to prohibit access to the plaza if it finds that someone’s appearance or conduct is “offensive.” As in the Venetian case, the ACLU of Utah believes that amounts to unconstitutional viewpoint discrimination. “The Ninth Circuit’s ruling is a victory for free speech,” Clark stated. “In no uncertain terms, it recognizes the unique role that public thoroughfares play in the ‘marketplace of ideas’ that is so fundamental to our democracy. As more and more of our public spaces are privatized, it is especially important to reinforce the principle that public thoroughfares cannot be stripped of their protected status and subject to discriminatory, one-sided restrictions just by selling them to a private entity.” Last May, the Utah District Court upheld the constitutionality of the restrictions on the Plaza. In its brief filed today, the ACLU of Utah asked the Tenth Circuit to reverse that decision and to rule that the plaza sidewalks are public thoroughfares, and are therefore subject to the same constitutional protections that the Ninth Circuit and other courts have extended to such traditional public forums. --end--

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