American Civ. Lib. Union, Nv v. City of Las Vegas

Decision Date02 July 2003
Docket NumberNo. 01-15966.,No. 01-15958.,01-15958.,01-15966.
Citation333 F.3d 1092
PartiesAMERICAN CIVIL LIBERTIES UNION OF NEVADA; Paul R. Brown; Greg Gable; Gary Peck; Shundahai Network; Unitarian Universalist Social Justice Committee, Plaintiffs-Appellants, v. CITY OF LAS VEGAS; Jan Laverty Jones; Fremont Street Limited Liability Corp.; Mark Paris, Defendants-Appellees. American Civil Liberties Union of Nevada; Paul R. Brown; Greg Gable; Gary Peck; Shundahai Network; Unitarian Universalist Social Justice Committee, Plaintiffs Appellees, v. City of Las Vegas; Jan Laverty Jones; Fremont Street Limited Liability Corp.; Mark Paris, Defendants Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Allen Lichtenstein, Las Vegas, NV; Mark Lopez, American Civil Liberties Union Foundation, New York City, NY, for the plaintiffs-appellants-cross-appellees.

Todd L. Bice, Schreck Brignone Godfrey, Las Vegas, NV; Patrick J. Reilly, Hale Lane Peck Dennison Howard and Anderson, Las Vegas, NV; William P. Henry, Office of the City Attorney, Las Vegas, NV, for the defendants-appellees-cross-appellants.

Appeal from the United States District Court for the District of Nevada; David Warner Hagen, District Judge, Presiding. D.C. No. CV-97-01419-DWH.

Before: TASHIMA, THOMAS, and PAEZ, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

In a successful bid to revive its decaying downtown, the City of Las Vegas followed the lead of towns across the United States and turned several blocks of its main downtown street into a publicly-owned pedestrian mall, the Fremont Street Experience. Fearful of the potential for disruption of merchants and customers, the City placed significant restrictions upon First Amendment activities in the Fremont Street Experience. After running afoul of these restrictions, the American Civil Liberties Union of Nevada ("ACLU") and others (jointly "the Plaintiffs") brought this 42 U.S.C. § 1983 civil rights suit. The Plaintiffs appeal the district court's determination that the mall is a nonpublic forum, and its ruling that City ordinances restricting soliciting and tabling were constitutional. The City of Las Vegas cross-appeals the district court's determination that City ordinances limiting leafleting and vending were unconstitutional.

We affirm in part, reverse in part, and remand. Because the Fremont Street Experience unmistakably possesses the characteristics of a traditional public forum, we reverse the district court's conclusion that it is a nonpublic forum. Recognizing that "[t]he First Amendment ... must deal with new problems in a changing world," Cinevision Corp. v. City of Burbank, 745 F.2d 560, 566 (9th Cir.1984) (quoting Bd. of Educ. v. Pico, 457 U.S. 853, 885, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982)), we hold that the Fremont Street Experience is a public forum. As a consequence, the restrictions on First Amendment activities must be scrutinized under a strict standard of review in order to protect adequately the right to expression. Because the City ordinances restricting leafleting and vending message-bearing materials fail even under the lesser standard applied by the district court, we affirm the district court's conclusion that they are unconstitutional. We remand to allow the district court to examine the other ordinances in question under the proper standard of review.

I.

In the early 1990s, downtown Las Vegas was suffering from an economic downturn. The area was seen as sleazy and unsafe, and downtown casinos were unable to compete with the glitzy Las Vegas Strip. Moreover, key economic factors showed that the area was in decline. In an effort to halt the slump and return downtown to its former luster, city officials decided to emulate economic revival measures taken in towns throughout the United States by creating a pedestrian-friendly zone. Five blocks of Fremont Street, the center of the downtown area, were closed off to automotive traffic. The City of Las Vegas contracted with a private entity, the Fremont Street Experience Limited Liability Corporation ("FSELLC"), to transform frumpy Fremont Street into the glamorous Fremont Street Experience. At a cost to the public and contributing Fremont Street businesses of $70 million, the street and sidewalk were torn up, various underground infrastructure elements were installed, the street was decoratively repaved as one large promenade, and a canopy capable of generating a lightshow (known, with a dash of hyperbole, as the "celestial superstructure") was placed high overhead certain parts of the street.

The street continues to play its old role as a pedestrian thoroughfare, and at two points it is crossed by streets bearing car traffic. It also functions as a "commercial and entertainment complex," intended to be an "attraction to compete with numerous other entertainment venues in Las Vegas." In addition to the many casinos and stores that line the street, the Fremont Street Experience hosts daily performing acts and bands, and frequently holds large special events, most of which are free and open to the public. In the evening, the lightshow plays overhead for a few minutes each hour.

Concerned with providing an environment in which shoppers could sample the delights of the Fremont Street Experience without interruption or molestation, one which could compete with private malls and entertainment centers, the City prohibited various types of activity in the Fremont Street Experience. Section 10.44 of the Las Vegas Municipal Code (LVMC) prohibits any form of solicitation in the Fremont Street Experience,1 and sections 11.68.100(I), (B), and (H) respectively prohibit leafleting, unauthorized vending, and the unauthorized erection of structures.2 There are no specific prohibitions against picketing and demonstrations, although these may be restricted by general prohibitions against obstructive conduct. LVMC § 10.47.010.

The Fremont Street Experience was completed in 1995. In August 1997, during a small rally held by the ACLU of Nevada on the Fremont Street Experience to protest restrictions on free speech activities, local police ordered the assembled individuals to disperse. Some time later, the ACLU of Nevada, the Shundahai Network, the Unitarian Universalist Social Justice Committee, and Paul R. Brown, Greg Gable, and Gary Peck, individual members of these groups, filed this lawsuit against the City and FSELLC, as well as against Jan Laverty Jones, former mayor of Las Vegas, and Mark Paris, Executive Director of FSELLC, in their official capacities (collectively "the City" or "Defendants"). The complaint alleged that FSELLC had "adopted policies prohibiting traditional First Amendment activity on the Fremont Street Experience, such as proselytizing, charitable soliciting, distributing literature, circulating petitions and collecting signatures, picketing, and giving away or selling message-bearing merchandise," and sought an injunction and a declaration that the restrictions were unconstitutional both facially and as applied.

The City responded with a motion to dismiss the complaint or, alternatively, for summary judgment. The Plaintiffs sought a preliminary injunction enjoining enforcement of the challenged ordinances. On April 24, 1998, the district court issued a memorandum order declaring that the Fremont Street Experience was a nonpublic forum. American Civil Liberties Union v. City of Las Vegas (ACLU v. City of Las Vegas), 13 F.Supp.2d 1064, 1068 (D.Nev.1998). The basis for this determination was the fact that the City had created the Fremont Street Experience for the principal purpose of stimulating economic growth, not for the purpose of promoting expression; that great expense had been incurred in the transformation; and that the textured pavement and canopy distinguished the Fremont Street Experience from surrounding streets and sidewalks. Id. at 1076-1077.

As part of the same order, the district court granted summary judgment for Defendants on the solicitation and tabling ordinances, but concluded that even under the less rigorous standard of scrutiny applied to nonpublic forums, the leafleting and vending ordinances were likely unconstitutional. Thus, the court granted the Plaintiffs a preliminary injunction against these provisions. Each side appealed, and a panel of the Ninth Circuit dismissed the appeals in an unpublished disposition, holding that the district court did not abuse its discretion in granting the preliminary injunction. ACLU v. City of Las Vegas, 1999 WL 65130 (9th Cir.1999). The district court issued its final order on April 4, 2001, reaffirming its determination that the Fremont Street Experience was a nonpublic forum, and granting summary judgment for the City with regard to the Plaintiffs's challenge to the solicitation and tabling ordinances and their request for an injunction against interference with protected activities. However, the district court granted summary judgment for the Plaintiffs regarding the challenge to the leafleting and vending ordinances, and made the preliminary injunction permanent. Each side timely appealed.

According to the Plaintiffs, on a number of occasions after the district court issued its preliminary injunction, various individuals and groups affiliated with the Plaintiffs were ordered not to leaflet on the Fremont Street Experience and were able to continue only after vigorous protest. Additionally, on October 24, 2000, three members of the ACLU of Nevada attempted to set up a table on the Fremont Street Experience in order to pass out literature and collect signatures. FSELLC security guards initially ordered the ACLU to leave, but ultimately permitted the distribution of literature on the condition that the table be removed.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. A grant of summary judgment is reviewed de novo, Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc), and may be...

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