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The Las Vegas Strip: It may be the most famous tourist cruising spot in the country. But a battle is raging for the ground beneath pedestrians’ feet. And it has made adversaries of attorneys who are usually considered allies. A labor union protest outside the Venetian casino has prompted a suit over whether the sidewalk in front of the building is private. The casino has lost twice, before a federal trial court and on appeal, and is seeking a U.S. Supreme Court review. The affected unions, joined by the American Civil Liberties Union (ACLU), say the workers have a First Amendment right to use the casino-built sidewalk. Venetian Casino Resort v. Local Joint Executive Board of Las Vegas, No. 00-15136. “The issues at the heart of the case could conceivably have profound implications for free speech, not just here in Nevada but nationwide,” says Gary Peck, executive director of the ACLU in Las Vegas. “That’s because the argument the Venetian is making could put at risk the well-settled law governing public-forum status of sidewalks from coast to coast.” The Venetian’s lawyers agree that the issues at stake are important. “It’s an opportunity for the court to arrest a slide away from the clear line that’s demarcating private property,” says attorney Walter E. Dellinger. “It’s a bright line, and you shouldn’t start treating private property as if it’s public.” This case is among several across the country in which courts are being asked to determine the status of places where both private owners and the public can claim rights. The Venetian case is also noteworthy because several high-profile civil rights advocates are representing the casino. BUILDING ON THE STRIP The dispute started after the Venetian began planning to build on Las Vegas Boulevard, known as the Strip. A traffic study urged the widening of the street, but a new lane was going to eliminate the public sidewalk and the state of Nevada’s right of way in front of the property. The Venetian agreed to build a replacement sidewalk on its own property in January 1999 and did so. In March 1999, using the casino’s temporary sidewalk, 1,300 workers from unions representing food workers and bartenders gathered to protest the casino’s opposition to unionization. The Venetian sought to have them arrested for trespassing on the sidewalk, which it claimed was private property. The Las Vegas police refused to arrest the picketers, and the casino sued the county, alleging that the county and police department had taken its property. Representing the casino are attorneys from Los Angeles-based O’Melveny & Myers, including Dellinger and William T. Coleman Jr. Dellinger, a constitutional law professor at Duke University, is well known as a civil liberties advocate. His credentials stem from his role as adviser in the 1980s and 1990s to public interest groups on issues such as abortion, privacy, voting and civil rights. He is an adviser to the liberal American Constitution Society, a group meant to counter the influence of the conservative Federalist Society. In the Clinton White House he was an assistant attorney general and, later, head of the office of legal counsel. He also served as acting solicitor general, unconfirmed because the Republican Congress viewed him as too liberal. Coleman is probably most famous for his work on behalf of the National Association for the Advancement of Colored People (NAACP) in the landmark 1954 Brown v. Board of Education. His other civil rights cases include a Girard College case in Philadelphia that ended racial discrimination by charities. He is co-chairman emeritus of the NAACP Legal Defense and Education Fund. Harvard University law professor Alan Dershowitz, who once sat on the ACLU’s national and Massachusetts advisory board, was also brought in by the casino. He petitioned the 9th U.S. Circuit Court of Appeals for a rehearing or an en banc hearing, a motion the court denied. The casino attorneys are joined by the conservative Pacific Legal Foundation, which wrote an amicus brief to the 9th Circuit and has filed one with the Supreme Court. “I respect the Venetian’s attorneys and don’t question their motives for taking the case,” says the ACLU’s Peck, “but it’s hard to ignore the irony in the fact that lawyers who have been such great champions of the First Amendment are now taking an obviously untenable position that argues unpersuasively for banning free speech on streets and sidewalks that have historically been America’s quintessential public forum.” Dellinger says he sees no irony in his role. He believes that the ACLU and the unions are failing to recognize the difference between public and private property and maintains that his representation is consistent with his championing civil liberties. “I think there are free speech issues on both sides,” he says, and adds that the casino’s right to communicate its own message without interference by the unions “is an important civil liberty.” AN ALLY IN CONGRESS The ACLU isn’t the unions’ only ally. In March of last year, they brought in Rep. John Lewis, D-Ga., to support the picketers. Lewis, a long-time civil rights activist, likened the unions’ rally to civil rights marches by noting the importance of the public sidewalks to the movement for free expression in struggles for social and economic justice. Coleman notes that he has represented Lewis and got him out of jail once or twice during his civil rights days. He, too, strenuously opposes the suggestion that there is an irony in his representation. “I’m in a law firm, and we represent corporate clients, and sometimes they get sued wrongly,” he says. “My first obligation as a member of the bar is to represent clients.” Dershowitz declined, through an assistant, to be interviewed about his involvement in the case. THE CONTRACT At the center of the fight is the contract that the Nevada Department of Transportation signed with the Venetian in 1999. The casino says that the agreement’s not requiring the Venetian to dedicate a public right of way, and its repeated identification of the sidewalk as “private,” give the casino the right to regulate speech and conduct. Any other reading of the contract represents a taking by the government, it maintains. The county government, named in the suit, has said in court that it is neutral regarding the outcome of the dispute. Union and ACLU lawyers say that not including an easement in the contract was simply an oversight and that the sidewalk should remain a public forum. Mike Anderson, an attorney at Boston’s Davis, Cowell & Bowe, represents the unions. He says that the 10 feet of sidewalk in front of the Venetian connects public sidewalks on either side of the property, and that the busy Las Vegas Boulevard requires a pedestrian thoroughfare. “The bricks may be privately owned, but the right to be there is grounded in an external right,” Anderson says. The 9th Circuit accepted this argument in a 2-1 ruling last July affirming the trial court. It found that there was a recorded servitude on the sidewalk that guaranteed the First Amendment rights of the union protesters and others. Judge Procter Hug Jr. wrote, “Given the historically public character of the predecessor’s sidewalk, the replacement sidewalk’s current public use, its similarity to and interconnection with Las Vegas’ network of public sidewalks and its dedication to public use under the Venetian’s 1999 Agreement with the Department, we conclude that the Venetian’s sidewalk constitutes a public forum subject to the protections of the First Amendment.” Dellinger, in his petition to the Supreme Court, argues that the 9th Circuit put the cart before the horse by using public-forum analysis. He argues that its analysis applies to government restrictions on speech on public property and therefore the courts must first determine if the casino is a government actor. The appeals court, Dellinger says, treated the Venetian as if it were the state, thus extending First Amendment rights to private property. Case law has extended these rights to private property only in “company towns.” The ACLU’s attorney, Allen Lichtenstein, calls the Venetian’s argument a red herring. “Public-forum analysis determines whether something is a public forum,” he says. “An entirely separate analysis determines if someone is a state actor.” Lichtenstein says that the public-forum status of the sidewalk depends on the contract and the characteristics of the sidewalk and its function. “It is not dependent upon whether the Venetian is or is not a state actor,” he says. The ACLU and unions’ attorneys say that the case is unlikely to be taken by the Supreme Court, since it has long recognized public sidewalks as a public forum. But Dellinger voices optimism from the other side and says that a conflict between the federal ruling and one last year by the Nevada Supreme Court in another case invites a resolution by the U.S. Supreme Court. The Nevada court decided 5 to 1 to uphold a preliminary injunction on leafleters who were advertising erotic entertainment on a sidewalk in front of the Mirage Casino, which is across the street from the Venetian. SOB Inc. v. The Mirage Casino-Hotel, No. 34563. The court found that an easement granted to the county for pedestrian use of the sidewalks did not make them a public forum. Lichtenstein notes, however, that two justices concurred in the result but in a separate opinion wrote that their decision was based on the fact that commercial speech invites a lowered First Amendment scrutiny. The federal trial court’s Venetian ruling had settled the “basic question” in favor of free speech, the justices wrote. PUBLIC-PRIVATE DISPUTE IN SALT LAKE CITY The ACLU is also involved in a high-profile case in Salt Lake City over the Mormon Church’s restrictions on people who use a downtown thoroughfare that passes before the church’s property. Mark Lopez, a national ACLU staff attorney, says suits are increasing because of the growing number of public-private partnerships in cities to create public promenades and piazzas. He is involved in the Mormon and Venetian cases and has filed an amicus brief in a union suit over access to the plaza in front of Lincoln Center in New York. He suggests that it is still too early to predict where the law will settle in these kinds of cases. So far, he says, “The more closed the space is, the less rights you have. The more it resembles a sidewalk or street or park, the more likely they are to rule for the First Amendment.”

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