American Civ. Liberties Union v. City of Las Vegas

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Citation13 F.Supp.2d 1064
Docket NumberNo. CV-S-97-1419-DWH (LRL).,CV-S-97-1419-DWH (LRL).
PartiesAMERICAN CIVIL LIBERTIES UNION OF NEVADA, et al., Plaintiffs, v. CITY OF LAS VEGAS, et al., Defendants.
Decision Date24 April 1998
13 F.Supp.2d 1064
CITY OF LAS VEGAS, et al., Defendants.
No. CV-S-97-1419-DWH (LRL).
United States District Court, D. Nevada.
April 24, 1998.

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Allen Lichtenstein, Las Vegas, NV, Mark Lopez, ACLU Foundation, New York City, for American Civil Liberties Union of Nevada, Plaintiffs.

Todd L. Bice, Matthew McCaughey, Schreck Morris, Las Vegas, NV, Kristin B. McMillan, Patrick J. Reilly, Hale, Lane Peek, Dennison, Howard, Anderson & Pearl, Las Vegas, NV, for The Fremont Street LLC and Mark Paris, Defendant.

William P. Henry, Office of the City Attorney, Las Vegas, NV, for City of Las Vegas and Mayor Jones, Defendant.


HAGEN, District Judge.

Plaintiffs' motion (# 21) for a preliminary injunction came before the court for oral argument on February 20, 1998. After reviewing the briefs and evidence submitted by both sides and considering their arguments, the court finds, as discussed more fully below, that plaintiffs have satisfied the test for issuing a preliminary injunction barring the enforcement of Las Vegas Municipal Code ("LVMC") § 11.68.100(I) and the standardless licensing scheme pursuant to LVMC § 11.68.100(B). Plaintiffs have not shown they are entitled to an order preliminarily enjoining defendants City of Las Vegas ("the City") and Mayor Jan Laverty Jones from enforcing LVMC § 10.44.030(F) and defendants Fremont Street Limited Liability Corporation ("FSELLC") and Mark Paris, executive director of FSELLC, from enforcing any FSELLC policies or regulations which infringe on plaintiffs' First Amendment rights. Also before the court is defendants' motion (# 18) to dismiss, or in the alternative, for summary judgment.

I. Factual and Procedural Background

The Fremont Street Experience Mall (the "Mall") was created by the City pursuant to the Pedestrian Mall Act, N.R.S. § 268.810 et seq. See LVMC § 11.68.010 et seq. It was intended to provide an attraction to compete with the Strip and bring tourists and business back to the sagging downtown casinos and businesses. See LVMC § 11.68.010. The City contracted with FSELLC, a private entity, to construct, operate and maintain the

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Mall. LVMC § 11.68.060. FSELLC has principal control over all commercial uses and aspects of the property. See LVMC § 11.68.070. Although downtown casinos contributed $25 million to the Mall's initial building costs of $70 million, FSELLC is solely responsible for paying the Mall's operation and maintenance expenses of approximately $6 million to $10 million annually. Defendants' Opp., Exh. B ¶ 15.

Construction on the Mall began in September 1994 and the Mall opened in December 1995. Defendants' Motion to Dismiss ("Defendants' Motion"), Exh. D ¶ 5. The Mall spans a five-block length of what used to be Fremont Street before Fremont Street was closed and the street and its sidewalks demolished and excavated. Defendants' Opp., Exh. B ¶ 5. It also includes cul-de-sac areas on First and Third Streets in which the sidewalks and streets were closed and demolished. Id. After the existing streets and sidewalks were demolished, holes were dug for columns to support the ten-story "celestial superstructure" which was installed over the Fremont Street area. Defendants' Motion, Exh. D ¶ 5. A fifty-foot wide strip of special high-strength concrete was poured over the area. Id. It was coated, stained and formed into a pattern designed to guide pedestrian traffic flow. Id. In addition, underground utilities systems, a special irrigation system, and sound and lighting systems were installed in the Mall complex to facilitate the use of retail carts and kiosks, to service landscaping, and to accommodate special events and activities. Id. ¶¶ 6-7.

Plaintiffs filed their complaint (# 1) for declaratory and injunctive relief on October 9, 1997, alleging that certain City ordinances and FSELLC policies infringe on their First Amendment rights. In particular, plaintiffs challenge the prohibition of the distribution of literature or other written material at the Mall pursuant to LVMC § 11.68.100(I), the prohibition against the solicitation of funds at the Mall pursuant to LVMC § 10.44.030, and all other FSELLC-imposed restrictions on public education or protest activities pursuant to contract or LVMC § 11.68.100. The challenged provision in LVMC § 10.44.030 was enacted in January 1995. Defendants' Motion, Exh. G at 12. The challenged provision in LVMC § 11.68.100 was enacted in August 1995. Defendants' Motion, Exh. F.

On January 9, 1998, defendants FSELLC and Mark Paris moved (# 18) to dismiss plaintiffs' complaint, or in the alternative, for summary judgment. Defendants City of Las Vegas and Mayor Jones joined (# 16) in that motion. On January 20, 1998, plaintiffs filed this motion (# 21) for preliminary injunction. In the motion for preliminary injunction, plaintiffs seek an order enjoining defendants from enforcing the following ordinances or policies on the premises of the Mall: (1) LVMC § 11.68(100)(1) (prohibiting distribution of literature or other written material); (2) LVMC § 10.44.030 (prohibiting solicitation of funds); and (3) all other FSELLC-imposed restrictions on plaintiffs' free speech rights.

II. Analysis

A. Defendants' Objections to Plaintiffs' Evidence

1. Newspaper Articles

Defendants object to the admissibility of newspaper articles submitted by the plaintiffs in support of their motion for a preliminary injunction. The first article is a letter to the editor from the Mayor of Las Vegas, Jan Laverty Jones, published in the Las Vegas Review Journal on April 16, 1997. Plaintiffs' Motion, Exh. 1. Plaintiffs rely on Mayor Jones' characterization of the Mall as the "Town Square" to support their argument that the Mall is a public forum. See Plaintiffs' Motion at 8.

The other three newspaper articles from the Las Vegas Review-Journal are cited as support for the following factual statement in plaintiffs' memorandum: "At the request of city officials in 1993, the Las Vegas Convention and Visitors Authority designated the Fremont Street Experience a recreation facility, which allowed the city to receive $8 million from the Tourism Authority over eight years." Plaintiffs' Motion at 3, Exhs. 2(a), 2(b), 2(c). Two of the three articles also quote Mark Paris' description of the Mall as "a great gathering place" and his statement that "there are no swings or fields, but it is a great venue to enjoy the Las Vegas climate, special events and one another's company"

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and that "it's parochial thinking to think of a park as a field or baseball diamond." Plaintiffs' Motion, Exh. 2(a)s, 2(b). Plaintiffs rely on this description to support their argument that the Mall is a public forum. See Reply at 9-10.

Defendants contend that these newspaper articles cannot be admitted for purposes of proving the truth of the statements made by Mayor Jones and Mr. Paris because those out-of-court statements published in the newspaper constitute double-hearsay. Plaintiffs contend that the out-of-court statements by Mayor Jones and Mr. Paris are not hearsay pursuant to Fed.R.Evid. 801(d)(2) because they are statements of party opponents. Further, plaintiffs argue that the publication of these statements have the requisite level of reliability to invoke Fed. R.Evid. 803(24) and also meet the requirements of Fed.R.Evid. 804(b)(5)1 given the reporters' unavailability to testify if they invoke the Nevada Shield Law, N.R.S. § 49.275.

Although the statements by Mayor Jones and Mr. Paris are not hearsay because they are admissions of party opponents in their official capacities, the repetition of those statements in newspaper articles and a published letter to the editor does constitute hearsay. See Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir.1991). Moreover, plaintiffs have failed to show that these statements satisfy the requirements of Fed. R.Evid. 807. The rule requires that "(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence." Fed.R.Evid. 807. As the Ninth Circuit recognized in Larez, statements quoted in newspaper articles fail to satisfy the best evidence requirement of subsection (B) because testimony from reporters or editors themselves regarding what Mayor Jones and Mr. Paris said or wrote would have been better evidence. Larez, 946 F.2d at 644. Although plaintiffs attempt to invoke the Nevada Shield Law as a justification for failing to obtain affidavits from or present testimony of the newspaper reporters and editors who interviewed Mr. Paris or read Mayor Jones' original letter to the editor, the privilege under that law was waived as to the content and source of the quoted statements because the content and source were published. See Las Vegas Sun, Inc. v. Eighth Judicial Dist. Court, 104 Nev. 508, 513, 761 P.2d 849 (1988) ("disclosure of a source and the attribution of remarks to that source is a clear cut waiver of the shield privilege as to that name and those statements"). Accordingly, this court will not consider the statements of Mayor Jones and Mr. Paris in the newspaper articles and letter to the editor in adjudicating plaintiffs' preliminary injunction motion.

The court will also disregard as hearsay the discussion in the newspaper articles of the Las Vegas Convention and Visitors Authority's designation of the Mall as a recreation facility in order to receive funds from the Tourism Authority. The statements in the articles regarding this fact constitute hearsay because they are offered for the truth of the matter asserted....

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