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ACLU of Utah Comments on Proposed Restrictions for Main Street Plaza

17 December 2002 Published in Legal Advocacy

ACLU comments on Mayor Anderson’s proposed restrictions for the Main Street Plaza.

Read the Letter Below >>


ACLU Comments on Proposed Restrictions for the Main Street Plaza

Salt Lake City Council
City & County Building Room 304
451 South State Street
Salt Lake City, UT 84111

December 17, 2002

RE: Main Street Plaza

Dear Council Members,

The ACLU of Utah would like to take this opportunity to comment on Mayor Anderson’s proposed time, place and manner restrictions for the public easement on the Main Street Plaza. We do so in writing so that others may use the time allotted for public comments at the hearing.

The issue of what the City should do in the wake of the Tenth Circuit’s ruling has been clouded by fervent emotions on all sides of the debate. Although public sentiment is robust, sound public policy must be based on objective facts. Those facts show that Salt Lake City’s foremost concern dating back to 1999 was to preserve twenty-four hour public access and passage across the Main Street Plaza. A City report prepared before the first Planning Commission hearing on February 4, 1999 stated:

"A perpetual easement for 24-hour public access must be retained by the City from North Temple to South Temple within the existing street right-of-way. The easement should be designed and improved so as so maintain, encourage and invite public use."

That requirement came from the Transportation Advisory Board, of which Council Member Jergensen was a member at the time. The requirement that the City retain a public easement became the very first condition to the Planning Commission’s March 4, 1999 recommendation that the City Council approve the sale of Main Street. It then became the very first condition of the Ordinance that the City Council approved on April 13, 1999. It is therefore not surprising that, when questioned by Judge Ted Stewart about the easement, Mr. Cutler stated unequivocally that the easement was a "critical element" of the transaction. He said: "This transaction would not have occurred from the city’s point of view but for" the easement. Mr. Cutler repeated that position to the Tenth Circuit Court of Appeals.

Relying on such statements, the Tenth Circuit observed that "the City has contended throughout this litigation that the City would not have agreed to the sale ”but for” the easement." So this, too, should be clear: if the City Council decides to convey the easement to the church, it will do so not because of, but in spite of, the important public policy reasons that required that the City reserve the easement in the first place.

United States courts have made clear that the only way to regulate First Amendment activities on property where public access and passage is guaranteed, such as the public easement in this case, is to enact reasonable, content-neutral time, place and manner regulations. Time, place and manner regulations are important tools for cities facing the problem of managing competing uses of traditional public fora. The ACLU of Utah generally supports Mayor Anderson’s proposed time, place and manner restrictions. However, we would like to raise the following concerns about the proposal.

First, the proposal requires demonstrations, defined as of two or more persons communicating a message, to be located in one of two designated gathering areas. Designated demonstration areas have historically been used only when demonstrations are very large in size and therefore limiting the space for demonstrations is required to balance competing uses of the property. Provided that small groups are not interfering with pedestrian traffic flow, the ACLU believes such groups should be allowed to demonstrate anywhere on the easement. Limiting demonstration outside the designated gathering areas to a procession of one appears to be arbitrary and unconstitutionally restrictive, because it is unreasonable to assume that groups of two, three, four or five people will interrupt traffic flow. Therefore, we recommend defining demonstration to include large groups of protesters, the number of which will considerably interrupt traffic flow on the easement.

Revising the definition of demonstration will also table one of our other major concerns with Mayor Anderson’s proposal. The ACLU believes that no distinction should be drawn between peaceful leafleting and other peaceful First Amendment activities, such as canvassing for signatures, picketing, carrying banners, and the like. Those persons should have the right to enter the easement without being confined to a designated area. If the demonstration definition is changed to a larger number, most of these activities fall free of the permit/designated demonstration area requirements.

Second, there are two very suspect grounds for denial of a permit in part E of the Mayor’s proposal. Section E part b 1 and d 2 are vague and overly broad reasons to deny a permit. The United States Supreme Court in Shuttlesworth v. City of Birmingham, found almost identical reasons for denying a First Amendment permit to be unconstitutional because the restrictions vested too much discretion in government officials to choose who could and could not speak. Because of the potential of a somewhat charged atmosphere on the Main Street Plaza, we feel these grounds for denial of a permit are highly suspect and could be used to silence speech that is disfavored by the government (or worse, by the church). Therefore, we ask that these grounds for denial of a permit be removed from the proposal.

Finally, much has been said about the potential for the ACLU to challenge the proposed time, place and manner restrictions. Assuming the council amends the proposal to comport with the constitutional requirements above, it is highly unlikely the ACLU will litigate this issue. I state this with reservation, and if problems arise when the system is implemented, we will take another hard look at the issue. However, as during the Olympics, we are confident that the City will implement the proposal in an equitable manner. We are also very supportive of the utilization of the appeals process outlined in Salt Lake City Code Chapter 3.50 in the Mayor’s proposal. That appeals process was very useful during the Olympics and staved off many potential lawsuits at that time.

To conclude, it would be contrary to the parties’ written agreement to vacate the public easement and deny public access and passage to the plaza. That access and passage was a critical element from the City’s public policy perspective. Because all parties’ interests can be protected by reasonable, content-neutral, time place and manner regulations, the ACLU respectfully submits that the City Council’s own standards require that it not convey the easement, but pursue the alternative of reasonable, content-neutral time, place and manner regulations. Indeed, if the City Council were simply to relinquish the easement in the absence of any legal obligation or other apparent public policy justification for doing so, the City Council would create a basis for further litigation challenging the City’s action on constitutional grounds.

Please feel free to contact me if you have any questions regarding our analysis of the Mayor’s proposal at 521-9862 x 103.


Janelle P. Eurick
Staff Attorney



1. Part b states "The proposed demonstration presents an imminent clear and present danger to the public safety, good order or health."

2. Part d states "The application proposes activities contrary to the provisions of this chapter or other laws or regulations."