Tuesday, March 05, 2002
Copyright © Las Vegas Review-Journal
THE VENETIAN: Sidewalk appeal declined
U.S. Supreme Court lets stand ruling that walkway constitutes public forum
By CARRI GEER THEVENOT
REVIEW-JOURNAL
The U.S. Supreme Court declined without comment Monday to consider an appeal filed by The Venetian in its long-standing fight with union members to control the use of its sidewalk.
In doing so, the court let stand the July decision of the 9th U.S. Circuit Court of Appeals, which ruled that the sidewalk in front of the Strip resort constitutes a public forum where individuals have the right to exercise their First Amendment freedoms.
"That is the end of the case," union attorney Richard McCracken said Monday. "That is now the law."
The case began with a lawsuit The Venetian filed shortly after a March 1999 protest by union members at the Strip resort, which was under construction at the time.
More than 1,000 union members rallied to protest Sheldon Adelson's claim that Las Vegas Sands Inc., The Venetian's parent company, owns the sidewalk outside the resort and has the right to control access to its property. Adelson is chairman of Las Vegas Sands.
Police made no arrests at the demonstration after seeking advice from Clark County District Attorney Stewart Bell.
Clark County was named as a defendant in The Venetian's lawsuit, as were the Culinary and Bartenders unions.
The American Civil Liberties Union of Nevada later intervened in the case on behalf of the unions, and the county adopted a neutral position.
"It's pretty clear, now that the dust has settled, that these sidewalks are a public forum for all free speech activities, whether the land under any of these sidewalks is publicly or privately owned," ACLU attorney Allen Lichtenstein said Monday.
As part of its lawsuit, The Venetian sought a court order declaring that the resort's "privately owned and maintained pedestrian walkway does not constitute a public forum."
U.S. District Judge Philip Pro of Las Vegas first ruled on the case in April 1999, when he denied a request by The Venetian for a temporary restraining order that would have prevented the public from engaging in unauthorized activity on the sidewalk.
In August 1999, Pro reaffirmed his ruling, concluding that "sidewalks have long been recognized as a public forum giving citizens a right of access for First Amendment purposes."
The 9th U.S. Circuit Court of Appeals, which is based in San Francisco, upheld Pro's decision with a 2-1 opinion.
In reaching its conclusion, the appeals court considered "the historically public character" of the sidewalk and the fact that it is connected to public sidewalks to its north and south.
According to the opinion, members of the public have the right "to pass across The Venetian's property along Las Vegas Boulevard and to express themselves as they do so with the same freedom as on any public sidewalk."
The Venetian then asked the Supreme Court to review the case.
"I thought it was the type of case the Supreme Court should have taken, because I don't think you or anyone else would want to own a piece of private property and then have people be able to come in and use it in a way you don't want them to, just because it looks like a piece of public property," Washington, D.C., attorney William Coleman Jr. said Monday.
Coleman worked on the case for The Venetian with attorney Walter Dellinger, who was acting solicitor general under President Clinton from August 1996 to August 1997. Coleman became a law clerk in 1948 for then-Supreme Court Justice Felix Frankfurter and later was secretary of Transportation under President Ford.
Coleman refused to declare Monday's development the end of The Venetian's battle for control of its sidewalk.
"I hope that somehow we can still get it before a court to get them to look at it properly," he said.
The attorney declined to reveal what approach his client would take to achieve that goal.
McCracken said nothing can be done to change the outcome of the case.
"They'd have to rewrite the Constitution," he said. "Some people will never say die."
On Monday, Lichtenstein stuck to his previous contention that The Venetian case will have implications for other casinos on the Strip, including The Mirage and Treasure Island.
In a mixed opinion, the Nevada Supreme Court ruled in May that those two casinos could restrict the distribution of sexually oriented handbills on their sidewalks.
The ruling upheld a preliminary injunction issued by Clark County District Judge Michael Cherry in 1999. It applied to Hillsboro Enterprises and S.O.C., businesses that regularly hire canvassers to distribute material advertising erotic dance entertainment to tourists.
Attorney Cal Potter, who represents S.O.C., said the two businesses have been abiding by the injunction but hope the ruling in The Venetian case will help their cause when they return to Cherry's courtroom. No trial date has been set for the District Court case.
Hillsboro and S.O.C. also are waiting for a final judgment from Senior U.S. District Judge Lloyd George, who issued a preliminary injunction blocking enforcement of a county ordinance that prohibited the distribution of commercial pamphlets in the county's resort district.