A Labor Of Sisyphus

Trying to get the First Amendment to apply in Las Vegas, where the autocratic hand of the entrepreneur is everywhere:

Here is how it works: The city of Las Vegas lost the Fremont Street Experience case in a 9th District Court of Appeals ruling in 2003. But the city then rewrote its ordinance to essentially accomplish the same goal of limiting the 1st Amendment under the Fremont Street Experience canopy. The ACLU took the new ordinance to court and everything started all over. In 2006, the case, now nearly a decade old, required yet another 9th District Court of Appeals ruling. As with the previous ordinances, Las Vegas again lost. And this still isn't over. Las Vegas and Mayor Oscar Goodman have not given up believing that an ordinance can be crafted that allows the goal of keeping undesirables from irritating tourists under the canopy without violating the 1st Amendment. The ACLU still believes this to be impossible.

At the core of this dispute (as with the one between the Venetian and the union) is the question of whether there is any way in which a public thoroughfare pedestrian space can be considered private property where the 1st Amendment does not apply. For years and years this argument has been rejected by federal courts.

As with most things that have a serious side, there is also a ridiculous one. Well, not entirely ridiculous as a lady is in jail. Today, Las Vegas Review Journal reports the story of Diana Bickel, who was unhappy with the service she received from Tower of Jewels, a local jewelry store. Bickel decided to stand on the sidewalk in front of the store with a sign reading "I have a problem with Tower of Jewels." Now she is in jail for two days. How can that have happened in the land of the free?

Well, Tower of Jewels used the familiar claim that it owned the sidewalk in front of the store. And, despite all of the cases that preceded this one, District Judge Susan Johnson agreed with Tower of Jewels. The judge issued a preliminary injunction against Bickel. Even then the resourceful Bickel did not back down. Obeying traffic lights and staying in the crosswalk, Bickel marched back and forth across the street with her sign. Apparently, that was enough for Judge Johnson to throw Bickel in jail for contempt for two days, along with a $500 fine.

The Review-Journal, by the way, conveniently quotes the 2003 9th District Court of Appeals ruling on how public and private space should be distinguished in Las Vegas, and the guideline does not focus on ownership for 1st Amendment issues:

"Factors considered in determining whether an area constitutes a traditional public forum for 1st Amendment purposes are: 1. the actual use of the property, particularly the status as a public thoroughfare and availability of free public access to the area; 2. the area's physical characteristics, including its location and the existence of clear boundaries delimiting the area; and 3. traditional or historic use of both the property in question and other similar properties."

Obviously this is written in judicial language, but if you read 1-3 again with a sidewalk in front of a store in mind or a crosswalk at an intersection you will understand why the ACLU attorney Allen Lichtenstein has leaped to Bickel's defense, telling the Review-Journal, "This is an issue that obviously goes beyond these two parties."