A.C.L.U. of Nevada v. City of Las Vegas

• Decision Date: 20 October 2006
• Docket Number: No. 05-15667.,No. 05-15767.,05-15667.,05-15767.
• Parties: AMERICAN CIVIL LIBERTIES UNION OF NEVADA; Paul R. Brown; Gary Peck; Unitarian Universalist Social Justice Committee, Plaintiffs-Appellants, v. CITY OF LAS VEGAS; Oscar Goodman, in his official capacity as Mayor; Fremont Street Limited Liability Corp.; Joseph Schillaci, in his official capacity as President of The Fremont Street Limited Liability Corp., Defendants-Appellees. American Civil Liberties Union of Nevada; Paul R. Brown; Gary Peck; Unitarian Universalist Social Justice Committee, Plaintiffs-Appellees, v. City of Las Vegas; Oscar Opinion Goodman; Fremont Street Limited Liability Corp.; Joseph Schillaci, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.3d 784

AMERICAN CIVIL LIBERTIES UNION OF NEVADA; Paul R. Brown; Gary Peck; Unitarian Universalist Social Justice Committee, Plaintiffs-Appellants, v. CITY OF LAS VEGAS; Oscar Goodman, in his official capacity as Mayor; Fremont Street Limited Liability Corp.; Joseph Schillaci, in his official capacity as President of The Fremont Street Limited Liability Corp., Defendants-Appellees.

American Civil Liberties Union of Nevada; Paul R. Brown; Gary Peck; Unitarian Universalist Social Justice Committee, Plaintiffs-Appellees, v. City of Las Vegas; Oscar Opinion Goodman; Fremont Street Limited Liability Corp.; Joseph Schillaci, Defendants-Appellants.

No. 05-15667.

No. 05-15767.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 1, 2006.

Filed October 20, 2006.

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

Todd L. Bice, Shreck Brignone, Las Vegas, NV, Patrick J. Reilly, Hale Lane Peek Dennison and Howard, Las Vegas, NV, and William P. Henry, Office of the City Attorney, Las Vegas, NV, for the defendants-appellees/cross-appellants.

Appeals 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.

PAEZ, Circuit Judge:

We must decide whether city ordinances prohibiting solicitation and the erection of tables in a five-block tract of downtown Las Vegas unconstitutionally restrict free speech. We hold that they do.

I.

This case returns to our court for a third time. In 1997, non-profit organizations the American Civil Liberties Union of Nevada, the Unitarian Universalist Social Justice Committee, the Shundahai Network, and three of their members (collectively "Plaintiffs") filed a complaint in federal district court for declaratory and injunctive relief.¹ Relying on 42 U.S.C. § 1983, Plaintiffs sought to enjoin the City of Las Vegas, the mayor of Las Vegas, the Fremont Street Experience Limited Liability Corporation ("FSELLC"),² and the chief executive of FSELLC (collectively "Defendants" or "the City") from enforcing several provisions of the Las Vegas Municipal Code ("LVMC") that Plaintiffs believe unconstitutionally restrict their First and Fourteenth Amendment rights to free speech and equal protection of the laws.

As we explained in ACLU v. City of Las Vegas, 333 F.3d 1092 (9th Cir.2003) ("ACLU I"), cert. denied, 540 U.S. 1110, 124 S.Ct. 1077, 157 L.Ed.2d 897 (2004), the ordinances that are the focus of Plaintiffs' complaint were adopted as part of the City's effort to revitalize the downtown area of Las Vegas:

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.

Id. at 1094-95. Certain speech-related activities, in the eyes of Defendants, are not compatible with the new Fremont Street Experience. See id. at 1095. As the district court explained in its most recent order:

According to testimony of numerous witnesses, written surveys, letters, and other documentation presented to the City Council, solicitation activities in the Mall [i.e., the Fremont Street Experience] would disrupt the comfortable environment that is sought to be maintained for its patrons. That disruption would in turn cause visitors, tenants, and corporate sponsors of the Mall to go elsewhere or deter them from coming to the Mall in the first instance. Without visitors, the City's purpose in creating the Mall to revitalize the downtown business area would be compromised and the Mall itself would be in jeopardy economically.

ACLU v. City of Las Vegas, No. 97-1419, at 6-7 (D.Nev. Mar.4, 2005) (unpublished order) ("2005 Order"). The record is replete with evidence that aggressive panhandling, solicitation, and handbilling had discouraged tourists and consumers from patronizing the downtown commercial district.

To address these concerns, the City adopted ordinances restricting activities in the Fremont Street Experience. One of those ordinances, LVMC § 10.44.030, prohibits solicitation at multiple Las Vegas locations including the Fremont Street Experience. See id. § 10.44.030(F). Soliciting in the Fremont Street Experience constitutes a misdemeanor. Id. § 10.44.030.

Solicitation is broadly defined as "to ask, beg, solicit or plead, whether orally, or in a written or printed manner, for the purpose of obtaining money, charity, business or patronage, or gifts or items of value for oneself or another person or organization." Id. § 10.44.010(A). The expansive reach of the solicitation ordinance is confirmed by Defendants' interpretation of it as prohibiting distribution of a handbill by the Shundahai Network stating "WE NEED HELP — ANYTHING — FOOD — DONATIONS — PEOPLE — CARS — LOVE — KITCHEN SUPPLIES" and providing contact information. According to the City's counsel, distribution of this handbill violated the ordinance because "[t]he solicitation ordinance expressly prohibits any requests whether written or oral for charity, business or patronage." The district court confirmed this interpretation of the ordinance in its 2001 order, finding that LVMC § 10.44.010(A) "bar[s] the distribution of message bearing leaflets that solicit money or donations ... through in hand leafleting, regardless of whether their request is for an immediate or future donation." ACLU v. City of Las Vegas, No. 97-1419, at 14-15 (D.Nev. Apr.4, 2001) (unpublished order) ("2001 Order").

In their 1997 complaint, Plaintiffs challenged the solicitation ordinance as invalid both on its face and as applied to them. According to Plaintiffs, the ordinance unconstitutionally restricts their and others' First and Fourteenth Amendment rights to free speech.³ Plaintiffs also asserted that, to the extent FSELLC permits solicitation in the Fremont Street Experience, the ordinance violates their and others' Fourteenth Amendment equal protection rights because no standards govern FSELLC's discretion.

A second ordinance prohibits a variety of activities solely in the Fremont Street Experience. See LVMC § 11.68.100. Violation of this ordinance also constitutes a misdemeanor. Id. § 11.68.130. In their 1997 complaint, Plaintiffs challenged three subsections of LVMC § 11.68.100⁴ — those banning vending, tabling, and leafleting — on equal protection grounds. See id. §§ 11.68.100(B), (H), (I).⁵ In addition to its language banning specific conduct in the Fremont Street Experience, LVMC § 11.68.100 also contains an exemption for labor-related activities, which applies to each of its eleven subsections including the vending, tabling, and leafleting provisions.⁶ In their complaint, Plaintiffs claimed the labor exception's application to LVMC §§ 11.68.100(B), (H), and (I) violates the Equal Protection Clause of the Fourteenth Amendment.⁷

Of relevance to Plaintiffs' claim regarding LVMC § 11.68.100(H) are the facts of the following incident, which occurred on October 24, 2000. Three ACLU members set up a table in the Fremont Street Experience, from which they hung an ACLU banner. They placed petitions on the table and handed out flyers. After security officers confronted the members and showed them the ordinance prohibiting tabling, they were required to remove the table.

Initially, the district court ruled that the Fremont Street Experience is a nonpublic forum and analyzed Plaintiffs' challenges in light of that determination. ACLU v. City of Las Vegas, 13 F.Supp.2d 1064, 1073-83 (D.Nev.1998). The district court granted summary judgment to Defendants regarding the solicitation and tabling ordinances, but issued preliminary injunctions enjoining Defendants from enforcing the leafleting and vending ordinances. Id. at 1084-85. We dismissed cross-appeals from the district court's order in an unpublished disposition. ACLU v. City of Las Vegas, 168 F.3d 497 (9th Cir.1999) (mem.).

In 2001, the district court entered a final, unpublished order granting summary judgment to Defendants on the solicitation and tabling claims and granting summary judgment to Plaintiffs on their leafleting and vending claims. The court permanently enjoined Defendants from enforcing the latter two ordinances. 2001 Order at 18. The...