Letter to the Salt Lake City Council Regarding Main Street
June 3, 2003
Salt Lake City Council
451 South State Street
Salt Lake City, Utah 84111
Re: Mayor’s Proposal to Abandon the Public’s Rights on the Main Street Plaza
Honorable Council Members:
At the suggestion of City Attorney Ed Rutan, I write to set forth the ACLU’s position on Mayor Anderson’s proposal to abandon the public’s rights on the Main Street Plaza.
The ACLU’s position is that the Mayor’s proposal fails to cure and in fact exacerbates the constitutional flaws in the original transaction. All it envisions is transferring legal title of a public thoroughfare to a private entity. The courts have long held that regardless of where title rests public thoroughfares “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In this very case, the Tenth Circuit stated: “’As society becomes more insular in character, it becomes essential to protect public places where traditional modes of speech and forms of expression can take place.’ . . . We think this is particularly true with respect to downtown public spaces conducive to expressive activities.”
As things currently stand, all members of the public are free to use the Main Street Plaza, subject only to reasonable, neutral regulations, without fear of arbitrary arrest. There is no question that under the Mayor’s proposal the Main Street Plaza will continue to be physically open to the public and compatible with expressive activities. The only difference will be that those who might express a viewpoint that varies from some unwritten and unknowable but purely sectarian standard will face arrest and jail.
Contrary to repeated statements by the Mayor and advice by the City Attorney, the City currently has no obligation, legal or otherwise, to abandon the easement on the Main Street Plaza and thereby acquiesce in the demands of the Church of Jesus Christ of Latter-day Saints that it be given free rein to discriminate against people who wish to use the Plaza for lawful purposes. To the contrary, the City has the right, and the obligation, to retain the easement that was from the beginning a “critical element” of the City’s agreement to sell this block of Main Street to the church so that the public will continue to be able to use the Plaza without fear of arbitrary arrest. Indeed, that is the most conservative, prudent approach to take in the absence of any evidence that existing City regulations governing the Plaza are inadequate to provide an appropriate balancing of the rights and interest of its various users.
The only reason the Mayor is now recommending and the City Council is considering changing the status quo and abandoning the easement that secures public access to the Plaza is that the LDS Church has made clear it considers the original deal it struck “unacceptable.” Indeed, it has made clear that even an approach that would grant it 90% of what it claims it bargained for while still retaining for the public a minuscule 10% of what it bargained for – the Mayor’s short-lived time, place and manner proposal – is also “unacceptable.” The church insists on absolute control, and just as it tried to do before, the City suggests it must “acquiesce[e] to the LDS Church’s demand to control speech on the easement.” But as the Tenth Circuit has already made clear, “the City may not exchange the public’s constitutional rights even for other public benefits such as the revenue from the sale.”
One final point. We note the church’s recent acquisition of large additional holdings in the heart of downtown Salt Lake City and various proposals to transform entire blocks to more open, mixed-use, pedestrian friendly areas. Suppose the transformation results in the re-opening of Richards Street or other pedestrian thoroughfares. The church will surely demand that it be given absolute control over that property just as it does the Main Street Plaza, including the right to engage in religious and other kinds of invidious discrimination by arresting and jailing those who don’t embody its desired message and image, in order to protect its substantial interest and investment in the adjacent property. If it acquiesces in that demand now, the City will create an unfortunate precedent, contrary to everything responsible City leaders have long sought to promote, that non-adherents are not welcome here. We urge the City Council to consider the ramifications of sending such a message.
Very truly yours,
Stephen C. Clark