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Democracy in Peril

By Steve Sebelius

LET FREEDOM RING: Call it municipal magic. The city of Las Vegas replaced the venerable blacktop of Fremont Street with red bricks, and stretched a lighted canopy over a four-block expanse. Presto! What used to be the main cruising drag is now a pedestrian mall. And instead of the city running things, the new boss is a cabal of downtown casinos known as the Fremont Street Experience Limited Liability Co.

From all accounts, the Fremont Street Experience stopped declining gambling revenues downtown, but the First Amendment took a hit in the process: Under semi-private control, some people weren't allowed to collect petition signatures or pass out leaflets in what was supposed to be an urban Disneyland. (One former Fremont Street boss, in fact, was a Walt Disney Co. refugee.)

The American Civil Liberties Union sued in 1997. It won some and lost some: U.S. District Judge David Hagen ruled that noncommercial solicitation was all right, but commercial solicitation was banned. The ACLU appealed. The 9th U.S. Circuit Court of Appeals agreed with the ACLU. The city appealed.

And this week the U.S. Supreme Court ended the matter with a whimper, not a bang, by refusing to hear the city's appeal. That sends it back to the 9th Circuit, and back to Hagen, who must now apply "strict scrutiny" to all the city's ordinances, ensuring there are "reasonable time, place and manner restrictions narrowly tailored to serve a compelling state interest."

Translated, it will be almost impossible for the city to restrict free speech on Fremont Street.

"The main goal is still to allow the mall to function as it was designed to function," says City Attorney Brad Jerbic, who notes that the City Council will have to decide what, if any, new ordinances to pass.

On that, and little else, Jerbic is on the same page as the ACLU's general counsel, Allen Lichtenstein, who says there is probably no "compelling state interest" the city can cite to restrict speech on the mall. The rationale in the past--that a more controlled environment is good for business--is not going to pass muster, Lichtenstein predicted.

So, Fremont Street will once again be free, seven years and tens of thousands of dollars later. Perhaps Mayor Oscar Goodman wasn't exaggerating last week with his vainglorious boast that Las Vegas "will be the epicenter of free speech."

Let it start on Fremont Street.

Steve Sebelius writes a daily e-mail newsletter, the E-Briefing, upon which Democracy in Peril is based. To subscribe to the E-Briefing at a Mercury reader special price of $20 per year, go to www.lasvegasmercury.com/ebriefing.