STEPHEN C. CLARK (4551)
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, New York 10004
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT
Civil No. 2:99CV-0921ST
Judge Ted Stewart
Magistrate Judge Samuel Alba
FIRST UNITARIAN CHURCH OF SALT LAKE CITY; UTAHNS FOR FAIRNESS; UTAH NATIONAL RGANIZATION FOR WOMEN; and CRAIG S. AXFORD, Plaintiffs,
SALT LAKE CITY CORPORATION, a municipal corporation, Defendant,
CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Intervenor.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure and DUCivR 56-1, plaintiffs respectfully submit this Memorandum in support of their Motion for Partial Summary Judgment.
Main Street and Other Poems By Joyce Kilmer
Main Street (For S. M. L.)
I like to look at the blossomy track of the moon upon the sea, But it isn”t half so fine a sight as Main Street used to be When it all was covered over with a couple of feet of snow, And over the crisp and radiant road the ringing sleighs would go.
Now, Main Street bordered with autumn leaves, it was a pleasant thing, And its gutters were gay with dandelions early in the Spring; I like to think of it white with frost or dusty in the heat, Because I think it is humaner than any other street.
A city street that is busy and wide is ground by a thousand wheels, And a burden of traffic on its breast is all it ever feels: It is dully conscious of weight and speed and of work that never ends, But it cannot be human like Main Street, and recognise its friends.
There were only about a hundred teams on Main Street in a day, And twenty or thirty people, I guess, and some children out to play. And there wasn”t a wagon or buggy, or a man or a girl or a boy That Main Street didn”t remember, and somehow seem to enjoy.
The truck and the motor and trolley car and the elevated train They make the weary city street reverberate with pain: But there is yet an echo left deep down within my heart Of the music the Main Street cobblestones made beneath a butcher’s cart.
God be thanked for the Milky Way that runs across the sky, That’s the path that my feet would tread whenever I have to die. Some folks call it a Silver Sword, and some a Pearly Crown, But the only thing I think it is, is Main Street, Heaventown.
Introduction and Summary of Argument
This case involves one block of Main Street in downtown Salt Lake City. From the earliest days of this city until recently, this block of Main Street consisted, physically, of a public road and public sidewalks running between North Temple and South Temple. Legally, it is undisputed that this block of Main Street was a “traditional public forum” protected by the First Amendment to the United States Constitution. It was therefore subject to the highest degree of protection our Constitution bestows on any physical place. And in the hearts and minds of the plaintiffs in this case, as the above poem suggests, Main Street was not just so much real estate, but a living, breathing, almost human symbol of their lives and community – something unique, accessible to all, embracing and nurturing ideals and aspirations, from cradle to grave.
On December 1, 1998, the City announced a proposal to close this block of Main Street to vehicular traffic, and to sell it to the LDS Church. The church promised to create a “world-class” pedestrian plaza – “a little bit of Paris,” where residents and visitors alike would be welcome to “enjoy the culture and beauty of the city” – and to “maintain” public use of Main Street. After months of public hearings, at which the City and the church repeatedly emphasized that the plaza would be open and inviting to all, the deed of sale was recorded on April 27, 1999.
Now, after more than a year of construction, Main Street has been reopened to the public. Where once there was only a paved road, there is now a landscaped plaza with flowerbeds, fountains, lawns, benches and, at the center, a large reflecting pool. The plaza is a beautiful addition to downtown Salt Lake City. Amidst all the changes, however, one thing remains the same: sidewalks still run between North Temple and South Temple along the east and west borders of the new plaza. And as part of the deed of sale, the public’s right to use the sidewalks as a thoroughfare at all times, both day and night, is protected by a public easement.
The nature of the plaza – whether it is a “public park” or a “private religious garden” – is much contested in this lawsuit, and raises many disputed issues of fact. Those disputes, however, are not central to plaintiffs’ instant motion. (1) The first issue plaintiffs raise is whether, notwithstanding the sale of Main Street and the creation of a landscaped plaza where once there was a paved street, the public thoroughfare sidewalks that remain, protected by a public easement, must continue to be accorded the protected legal status of a First Amendment public forum.
Plaintiffs respectfully submit that, as a matter of law, the First Amendment must continue to apply to the sidewalks on the Main Street plaza. Sidewalks reserved for pedestrian access and passage as public thoroughfares are the “archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988). That is because “time out of mind” sidewalks have been available to anyone with a soapbox or a placard and the passion to share an idea or an opinion. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quoting Hague v. CIO, 307 U.S. 496, 515 (1939) (streets and sidewalks “have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions”)).
Although the sidewalks are now paved with granite rather than concrete, they continue to function as a public thoroughfare – not merely for access to the plaza or adjacent buildings, but for pedestrian access and passage, as an integral part of the downtown transportation grid. By the terms of the deed as well as by design, the sidewalks are open at all times. They are contiguous with and adjoining to public sidewalks on both ends. They are equivalent in form and function to the sidewalks they replace, as well as other City-owned sidewalks. They cannot be blocked with gates or fences. There is therefore no genuine dispute that, if the City still owned the sidewalks, they would be a First Amendment public forum. See Point I. A., below.
There is also no dispute that the City has agreed to restrictions on expressive activity on the sidewalks that the City could not constitutionally enforce in a public forum. The City and the LDS Church have admitted as much. The real dispute in this case therefore centers on whether these sidewalks, which function as a public thoroughfare and would normally have to be regulated with neutral, carefully tailored regulations, can be regulated instead by discriminatory and vague restrictions simply because the City has transferred title to the sidewalks to a private party and declared that they are no longer a public forum.
Plaintiffs respectfully submit that the City cannot preserve the form and function of Main Street’s sidewalks and at the same time destroy their essential legal status by fiat. Supreme Court and lower court cases from at least 1946 to the present make clear that, regardless of the formalities of title, thoroughfare sidewalks must be protected by the First Amendment. While the rights of private property owners are important, they are not absolute: “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Marsh v. Alabama, 326 U.S. 501, 506 (1946).
In this case, the LDS Church agreed to keep Main Street open, not only for its own benefit in creating a unified “church campus” and attracting visitors to Temple Square and the church’s other amenities, but also for the public benefit in creating “a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district” and in general helping Main Street, “which is the heart of the shopping area, to become the most pedestrian oriented street in Salt Lake City.” That public benefit is closely tied to the legal requirement and the factual reality that the thoroughfare sidewalks on the Main Street plaza remain open to the public for purposes other than ingress to or egress from the church’s amenities. Accordingly, the sidewalks are a public forum, not purely “private property,” and the Court must enjoin the enforcement of restrictions that are inconsistent with constitutional standards for regulating speech in a public forum. See Point I. B., below.
Even if the sidewalks on the Main Street plaza were somehow found not to be a public forum, the fact remains that the City has reserved a public property right on Main Street, in the form of an easement. Plaintiffs respectfully submit that the City cannot impose unreasonable, viewpoint-based restrictions on that easement, which is exactly what the City has done here. Rather than formulating reasonable, neutral regulations compatible with the nature and use of the easement, the City expressly agreed to allow all kinds of expressive activities to continue, but from only one viewpoint or perspective.
Under the easement, the City expressly permits the distribution of literature, the erection of signs and displays, and other expressive activities on the easement, but only those that the LDS Church sponsors or approves. This means that LDS Church representatives are free to ply the easement and otherwise share the church’s views on the religious and political issues of the day, but plaintiffs can be arrested for addressing the same subjects from their different viewpoints. One can only conclude that the City prefers that speech to the varieties of speech that otherwise characterize the marketplace of ideas, and has sought to enshrine that preference in law. That violates the First Amendment’s prohibition of viewpoint discrmination, as well as the Fourteenth Amendment’s guarantee of equal protection. See Point II, below.
Finally, not only has the City reserved a public property right, in the form of an easement; it has also empowered LDS Church security with the discretion to interpret and enforce the easement and to stand as the gatekeeper over the public’s use and enjoyment of the easement. Plaintiffs submit that the City cannot delegate such fundamental, discretionary governmental authority to a church without running afoul of the Establishment Clause.
Whether the City can sell property outright to the church, and whether the church can then exercise all the rights of ownership, are not the issues here. The plaza is not an extension of Temple Square, where the church has every right to close the gates and otherwise police its own property. The issue is whether the City can reserve a public easement preventing the erection of gates but then vest the church with standarless discretion to regulate the public’s use and enjoyment of that easement through invisible gates of its own design. The Supreme Court has held that delegation of “a power ordinarily vested in agencies of government” to a church creates a “substantial breach” in the wall that separates the church from the state, a plain violation of the Establishment Clause. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122-23 (1982). See Point III, below.
In summary, when the City agreed to sell one block of Main Street to the LDS Church, it properly insisted, and recorded in the deed of sale, that the public would continue to have certain rights in the property. However, it then improperly imposed or acquiesced in a scheme for regulating those rights in a way that runs afoul of important, fundamental constitutional protections. Plaintiffs seek nothing more than the equal access and status guaranteed them under the Constitution, so that the beautiful Main Street plaza will be truly open and inviting to all.
Statement of Facts
1. On December 1, 1998, former Salt Lake City Mayor Deedee Corradini and LDS Church President Gordon B. Hinckley held a press conference in which they announced “a proposal to develop an open-space pedestrian plaza on one block of Main Street between North and South Temple that will allow for new lawns, flower gardens, fountains and reflecting pools” (the “Main Street Plaza”). (December 1, 1998 Press Release, Deposition Exhibit 31, attached to Clark Declaration as Exhibit 1, p. 1) (2)
2. In addition to a pedestrian plaza, the Main Street proposal included paths along the east and west borders of the plaza, where the sidewalks of this block of Main Street ran. (Deposition Exhibit 5, attached to Clark Declaration as Exhibit 2; Documents CPB112-118, attached to Clark Declaration as Exhibit 3; excerpts of Deposition of Kerry B. Nielsen, attached to Clark Declaration as Exhibit 4, pp. 13-22)
3. The Main Street proposal anticipated that the pedestrian paths would provide not only access to the plaza and adjacent LDS church amenities, but also “direct access to downtown merchants and the light-rail system.” (“Questions and Answers,” Deposition Exhibit 31, p. 3, attached to Clark Declaration as Exhibit 5)
4. The LDS Church described the Main Street proposal as “an exciting project to enhance downtown Salt Lake City” that would benefit both the City and the LDS Church:
“The proposed development of an open-space plaza on the Main Street corridor between North and South Temple makes it possible to:
Expand the world-famous Temple Square gardens to provide pleasant meandering walkways, seating areas and open space uniquely designed for cultural events and displays in downtown Salt Lake City that will accommodate the increasing number of visitors.
Increase the personal safety of large crowds in the downtown area by providing direct pedestrian access between Temple Square and the Church Administration Plaza, and by enhancing the visitor/tourist connection to the downtown business district, thus strengthening economic development.
Enhance the ability to create a year-round “destination” where visitors from around the world can enjoy the culture and beauty of the city. Among other attractions, special Christmas programs will be inaugurated with additional lights, music and displays.”
(“Proposed Main Street Plaza at Temple Square,” Document CPB 111, attached to Clark Declaration as Exhibit 6)
5. The Main Street proposal was subject to a public review process and required final approval by the Salt Lake City Council. (December 1, 1998 Press Release, Deposition Exhibit 31, attached to Clark Declaration as Exhibit 1, p. 1)
6. On February 4, 1999, the Main Street proposal was scheduled for an “issues only” public hearing before the Salt Lake City Planning Commission. The Staff Report prepared for that hearing raised a number of issues, including “what urban design and open space treatments will occur on Main Street between North Temple and South Temple to accommodate the large pedestrian volumes at this location,” and listed a number of comments from various City departments, including: “The plaza should have a balance of users and activities”; “Design the plaza to feel open and inviting to all people”; “A pedestrian corridor must be provided from South Temple to North Temple on Main Street”; and “A perpetual easement for 24-hour public access must be retained by the City from North Temple to South Temple within the existing street right-of-way. The easement should be designed and improved so as so maintain, encourage and invite public use.” (Salt Lake City Planning Commission Issues Only Staff Report, Deposition Exhibit 14, attached to Clark Declaration as Exhibit 7, pp. 3-4)
7. On March 4, 1999, the Main Street proposal was scheduled for a public hearing before the Planning Commission. The Staff Report for that hearing included a number of Findings of Fact, including: “The pedestrian plaza will create an anchor for the north end of downtown for tourist[s] and residents to experience Main Street,” and “Public pedestrian and bicycle access easement [sic] will be maintained through a perpetual pedestrian easement.” The report also included several recommendations, including: “The City shall retain a perpetual easement for 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-or-way. The easement shall be planned and improved so as to maintain, encourage, and invite public use.” (Salt Lake City Planning Commission Staff Report, Deposition Exhibit 15, attached to Clark Declaration as Exhibit 8, p. 17)
8. On March 4, 1999, the Main Street proposal came before the Salt Lake City Planning Commission for a public hearing as part of the public review process and as required by Utah Code Ann. § 10-9-305(2). (Minutes of March 4, 1999 Salt Lake Planning Commission Meeting, Deposition Exhibit 9, attached to Clark Declaration as Exhibit 9)
9. At the March 4, 1999 Planning Commission hearing, Planning Commission Staff presented the Staff Report and recommendations and answered questions. (Notes from Planning Commission March 4, 1999, attached to Clark Declaration as Exhibit 10, pp. 1-4) (3) Marc Mascaro, representing the LDS Church, stated its support for the Staff’s recommendations. (Id., p. 10) Kerry Nielsen, also representing the church, presented “kind of a fully developed level of this concept and scheme of what the plaza might be and what it might bring to Salt Lake City. (Id., pp. 10-11)
10. Mr. Nielsen used diagrams and renderings to explain in some detail what it was then anticipated the plaza would look like. (Id., pp. 11-16) Among other things, he described the experience of walking south toward South Temple and Main Street along the western Main Street Plaza Sidewalk as “a little bit of Paris in Salt Lake City with a boulevard or some nice park and it has a very, I think, enticing and desirable urban spirit and urban feeling to it, get a sense of what may any day of the week join in people moving through activity and coming up and down from Main Street connecting through perhaps to bus stops on North Temple or activities otherwise related to destinations at Church Headquarters or downtown.” (Id., p. 13)
11. The diagrams and renderings Mr. Nielsen used during his presentation to the Planning Commission included depictions of the Main Street Plaza Sidewalks. (Deposition Exhibit 44, attached to Clark Declaration as Exhibit 11) Mr. Nielsen described one view as “showing our intent in design and effort to coordinate and communicate the plaza as an element of the City as part of the cultural and historic fabric and it would basically give us a chance to contribute to the northern edge that was identified in the earlier maps, [a world class plaza] or open space for a world class city which would provide visitors from around the world a place to come and enjoy and have opportunity to experience our great Salt Lake City.” (Clark Declaration, Exhibit 10, at 13)
12. At the conclusion of the March 4, 1999 Planning Commission hearing, the Commission voted 7 to 1 to pass a motion “to forward a positive recommendation to the City Council to hold a public hearing and adopt an ordinance to approve Petition No. 400-98-79 to close the right-of-way on Main Street between North Temple and South Temple Streets” and to declare the right-of-way “surplus property so that the ownership may be transferred to the petitioner in exchange for fair-market value.” (Clark Declaration Exhibit 9, at p. 14)
13. The Planning Commission’s positive recommendation was subject to several conditions. One of the conditions was one recommended by the staff: that the City would “retain a perpetual easement for 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-of-way. The easement shall have no gates or fences across or within the pedestrian plaza except those approved by the Planning Director and shall be planned and improved so as to maintain, encourage, and invite public use.” (Id., pp. 14-16)
14. On April 6, 1999, the Main Street Proposal came before the City Council for a briefing. Prior to the briefing, the City Council received a “Council Transmittal” that included the conditions the Planning Commission placed on the recommendation forwarded to the City Council. (Council Transmittal, March 9, 1999, Deposition Exhibit 53, attached to Clark Declaration as Exhibit 12, pp. 3-4)
15. At the April 6, 1999 briefing, Council Member K. Christensen asked a question about fencing. William Wright, former Salt Lake City Planning Director, said that “the intent of the way it was structured was to say there would be no fences or gates across the right-of-way at South Temple and North Temple, which would close that area of Main Street.” Council Member Thompson then said “the City needed to make sure that what the City was bargaining for occurred. He said the City wanted the mall to be perpetually open to the public and kept to a certain quality of standard.” He “asked if there was a consideration to put in a special reverter conveyance stating that if the property ceased to be used as a plaza, it would revert back to the City.” (Minutes of April 6, 1999 City Council Meeting, Deposition Exhibit 54, attached to Clark Declaration as Exhibit 13, pp. 99-10 - 99-11)
16. On April 6, 1999, at the request of the City Planning Department that the LDS Church demonstrate to the City Council how the sale of Main Street to the church would further the public interest, Mr. Mascaro wrote to the City Council on behalf of the church. Among other things, the LDS Church represented that the Main Street Plaza would provide or encourage a “ pedestrian-friendly area”; “open space for recreation, regeneration and contemplation”; “traffic emphasis on pedestrians”; “attractive and safe pedestrian areas”; “donations from private resources and creat[ing] public/private partnerships wherein the open space area in the downtown corridor can be enhanced”; “a downtown pedestrian area”; “a public/private partnership wherein the LDS Church will be responsible for all capitol [sic] improvements to the plaza and for perpetual maintenance thereof at no expense to the citizens of Salt Lake City”; “a more pedestrian-friendly downtown area”; “the ease of accessing Salt Lake City’s number one tourist attraction, Temple Square, with access to the Main Street corridor, including both malls and other businesses”; “multiple access points from the pedestrian plaza to the Temple Square and LDS Church Administration campus, and the downtown shopping area, attracting in excess of 5,000,000 visitors”; “pedestrian access to the [LDS Church’s] New Assembly Building”; “a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district”; and in general help Main Street, “which is the heart of the shopping area, to become the most pedestrian oriented street in Salt Lake City,” helping to “preserve and enhance the downtown character of the area.” In summary, Mr. Mascaro stated: “We believe that the proposal we are making to Salt Lake City will accomplish the numerous public policies that have been set by Salt Lake City over the years to improve the urban fabric of the downtown area.” (April 6, 1999 Letter from Marc N. Mascaro to Salt Lake City Council, Document CPB 46-51, attached to Clark Declaration as Exhibit 14)
17. On April 9, 1999 City Attorney Roger F. Cutler and Deputy City Attorney Lynn H. Pace transmitted to the City Council a memorandum with a draft reservation of easement and draft ordinance for the street closure. That memorandum provides in part as follows:
“As you are aware, the LDS Church has petitioned the City to close and sell a portion of Main Street between North Temple and South Temple Streets. The Planning Commission recommended approval of the petition, subject to the reservation of a pedestrian easement across that property.
This office has been working with the attorneys for the LDS Church and the City planning staff to draft an easement which would accomplish this purpose. Attached, please find a draft of that easement, which will be included as part of a special warranty deed conveying title to the property to the LDS Church, with the pedestrian and utility easement reserved to the City.
Consistent with the concept approved by the Planning Commission, this document: (1) preserves a 24-hour pedestrian easement for access, use, ingress and egress, across the property, subject to reasonable conditions; [and] (2) prohibits the erection of gates or fences across either the north or south end of the property. . . . In addition, as requested by the City Council, in the briefing on April 6, 1999, the easement has been modified to include a Right of Reverter clause.”
(Memorandum dated April 9, 1999, Deposition Exhibit 41, attached to Clark Declaration as Exhibit 15, p. 1)
18. The draft ordinance provided that the closure of Main Street was “conditioned upon compliance with all of the conditions identified by the Salt Lake City Planning Commission, a modified summary of which is attached hereto as Exhibit ‘B.’” The conditions listed on Exhibit “B” included the following:
“The City shall retain a perpetual easement for a 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-of-way. The easement shall have no perimeter gates or fences along the North Temple or South Temple rights of way, but Petitioner may erect decorative fencing and similar structures which are commonly used in similar plazas, with the written approval of the Planning Director. The plaza shall be planned and improved so as to maintain, encourage, and invite public use.”
(Id., at Exhibit “B,” p. 5)
19. On April 13, 1999, the Main Street Proposal came before the Salt Lake City Council for a public hearing. (Minutes of April 13, 1999 Salt Lake City Council Meeting, Deposition Exhibit 6, attached to Clark Declaration as Exhibit 16) Mr. Mascaro again made a presentation on the LDS Church’s proposal “to develop Main Street into a pedestrian plaza.” (Transcript of April 13, 1999 City Council Meeting, excerpts attached to Clark Declaration as Exhibit 17, pp. 23-24) Among other things, Mr. Mascaro stated in describing the plaza: “In your packet there is also I believe numerous letters from various business leaders downtown which I think is indicative of their desire to have this plaza downtown to help create the atmosphere and the walking ambience that we want in the downtown area. It creates an urban atmosphere and an urban fabric that you can’t have with – with traffic. It gets us out of automobiles and puts us in – in the public ways where we see each other, shake hands, and it – it fully integrates the community.” (Id., pp. 28-29)
20. Mr. Mascaro also stated: “The Planning Commission last month, as you know, voted seven to one to approve this with various conditions. We support those conditions, we’ve tried to incorporate those over the last few weeks with the City’s Administration and Legal Department.” (Id., p. 29)
21. Mr. Mascaro also stated: “We feel ultimately this will be a great benefit to the City, we feel that it will create the downtown atmosphere that we want, to create the urban fabric between all those entities that are downtown, be it business, be it the L.D.S. Temple, which is the number one attraction in Salt Lake, here in Utah, it will help bring those people not only to those parks – or those blocks , but also bring them into a downtown area and get them coming down into our Main Street area and to our businesses.” (Id., pp. 29-30)
22. Max Smith, Chairman of the Planning Commission, also spoke at the hearing. He stated: “But our main – main issue I think would be that this space remain very very accessible to as many people as possible.” (Id., at pp. 31-32)
23. Several citizens also spoke at the hearing. Steven Epperson talked about the fact that historically Main Street was always open, and about the importance of such public spaces. (Id., at pp. 32-35) Additional members of the public spoke, some in favor of the Main Street proposal and some, including plaintiff Craig Axford, opposed. (See id., at pp. 69-71) Some, including Council Member Deeda Seed, expressed concerns over the separation of church and state. (See, e.g., id., pp. 62, 91-92, 110-114)
24. At the conclusion of the hearing, the City Council voted 5 to 2 to adopt Ordinance No. 28 of 1999 (Closing a portion of Main Street between North Temple and South Temple Streets) (the “Ordinance”). (Clark Declaration, Exhibit 16, p. 1)
25. Following the City Council’s adoption of the Ordinance, the terms and conditions of the sale of Main Street to the LDS church were formalized in a Special Warranty Deed that was recorded on April 27, 1999 (the “Deed”). (Special Warranty Deed, Deposition Exhibit 4, attached to Clark Declaration as Exhibit 18)
26. The Deed provides for the conveyance of Main Street from the City to the LDS Church subject to a “reservation of easements.” The reservation of easement for pedestrian access and passage states as follows:
“Pedestrian Access and Passage. Subject to the conditions, limitations, and restrictions set forth in section 2 hereinbelow, Grantor [the City] reserves an easement over and across the surface of the Property [Main Street] for pedestrian access and passage only . . . . The Property shall be available for such pedestrian access and passage at all times, both day and night. Grantee [the LDS Church] shall not erect any perimeter fences or gates on the Property along the North Temple or South Temple rights of way, but Grantee may erect decorative fencing and similar structures which are commonly used in plazas similar to the Property, with the written approval of Grantor. Grantor may allow the general public to use this easement for pedestrian access and passage only, but all use of this easement shall be subject to the conditions, limitations and restrictions described hereinbelow.”
(Id., Section 1.3)
27. The Deed provides that, notwithstanding anything to the contrary in the Deed, the Reservation of Easement is subject to certain conditions, limitations and restrictions:
“Private Property. The Property is and shall at all times remain the private property of Grantee. Nothing herein shall be deemed to dedicate the Property to public ownership or use beyond the scope of the reserved easement. The use of the Property by the Public is and shall remain permissive, and neither Grantor nor the public shall acquire any rights to the Property by such use beyond the scope of the easement reserved herein. Neither Grantor nor the public shall be entitled to claim or assert any prescriptive use rights or any right of adverse possession against Grantee. No third party shall be entitled to claim or assert any rights against Grantee or against the Property beyond the use of the easement described herein. Grantee shall have the right to landscape the Property, to improve the Property with gardens and/or other improvements, and to restrict pedestrian access and passage to sidewalks or walkways intended for that purpose, provided that the pedestrian flow across the Property shall not be unreasonably obstructed or limited.”
(Id., Sections 2 and 2.1) (emphasis added)
28. The Conditions, Limitations and Restrictions also include a provision granting the LDS Church the right to prevent uses of the easement other than pedestrian passage:
“Right to Prevent Uses Other Than Pedestrian Passage. Nothing in the reservation or use of this easement shall be deemed to create or constitute a public forum, limited or otherwise, on the Property. Nothing in this easement is intended to permit any of the following enumerated or similar activities on the Property: loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, begging, littering, consuming alcoholic beverages or using tobacco products, sunbathing, carrying firearms (except for police personnel), erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct, or otherwise disturbing the peace. Grantee shall have the right to deny access to the property to persons who are disorderly or intoxicate or engaging in any of the activities identified above.”
(Id., Section 2.2)
29. The Deed also provides that the LDS Church “may prohibit and lawfully prevent access to the Property” by members of the public who have “threatened” harm or damage to members or property of the LDS Church or who “have on more than one previous occasion entered on the Property and engaged in activities identified in section 2.2 above.” The Deed further grants the LDS Church the right to “use all lawful means available to owners of private property to prevent any uses of the easements which are contrary to the provisions of this instrument,” including “the right to obtain injunctive relief enforcing the provisions of this instrument.” (Id., Sections 2.3 and 3)
30. Although the Deed permits the LDS Church to prohibit certain expressive activities and conduct, including those it considers “offensive,” it does not prohibit all expressive activities and conduct. For example, the Deed permits the LDS Church to “erect and maintain one or more kiosks or information booths which may be occupied by attendants.” The Deed also provides that the restrictions on expressive activities contained in Section 2.2 do not apply to the LDS Church:
“The provisions of this section are intended to apply only to Grantor and other users of the easement and are not intended to limit or restrict Grantee’s use of the Property as owner thereof, including, without limitation, the distribution of literature, the erection of signs or displays by Grantee, and the projection of music and spoken messages by Grantee.”
(Id., Sections 1.4 and 2.2)
31. The Deed also includes a Right of Reverter: “In the event that Grantee fails to use the Property for the purposes set forth herein, or fails to maintain the Property thereafter, the ownership of the Property shall, at Grantor’s option, revert to Grantor,” subject to a written notice of any claimed deficiencies and an opportunity to cure. (Id., Sections 4 and 5)
32. The LDS Church has stated, in a Security Policy it drafted to implement the provisions of the Deed, that “an easement grants the public a limited right to access and traverse” the Main Street Plaza. The LDS church understands this to mean that “pedestrians may enter and walk across” the Plaza 24-hours-a-day, but that “[t]he public’s property rights are limited to these uses; no other uses by the public are authorized by the easement.” (Security Policy, Deposition Exhibit 37, attached to Clark Declaration as Exhibit 19, p. 1)
33. The LDS Church has also stated that “[p]ersons engaging in activities not authorized by this policy will be asked by a Church representative, i.e., security, hostess, missionary, employee, etc., to discontinue their conduct or to leave the West Church Plaza property. If the person refuses to comply, the Salt Lake City Police Department will be summoned.” (Id., p. 3)
34. Prior to the sale of Main Street to the LDS Church, Main Street was a “traditional public forum” as that term has been defined by the United States Supreme Court’s First Amendment jurisprudence. (Defendant’s Response to Plaintiffs’ First Set of Requests for Admission, attached to Clark Declaration as Exhibit 20, No. 1; Intervenor’s Responses to Plaintiffs’ First Set of Requests for Admission, attached to Clark Declaration as Exhibit 21, No. 1)
35. The restrictions in the Deed are not regulations of the type that the City could constitutionally enforce in a traditional public forum. (Clark Declaration, Exhibit 20, No. 2; Clark Declaration, Exhibit 21, No. 7)
36. At an April 5, 1999 private meeting between City officials and LDS Church representatives, the LDS Church made clear “it was not interested in purchasing the property unless it was able to control the activities that occurred on the property.” (Defendant’s Response to Plaintiffs’ Combined First Set of Interrogatories and Requests for Production of Documents to Defendant, attached to Clark Declaration as Exhibit 22, No. 2, p. 10) The City did not insist that the Main Street Plaza be regulated by neutral, constitutionally permissible regulations, but acquiesced in the LDS Church’s language imposing one-sided restrictions, and suggested adding language to make clear that the property would not be a public forum. (See generally Deposition of H. David Burton, excerpts attached to Clark Declaration as Exhibit 23, pp. 83-95; Deposition of William A. Meaders, excerpts attached to Clark Declaration as Exhibit 24, pp. 13-19; Deposition of Stuart S. Reid, excerpts attached to Clark Declaration as Exhibit 25, pp. 61-77; Deposition of William T. Wright, excerpts attached to Clark Declaration as Exhibit 26, pp. 45-57)
37. The LDS Church intends to use Main Street “for its own expressive purposes.” (Clark Declaration, Exhibit 21, No. 2)
38. As constructed, the Main Street Plaza consists of a landscaped area roughly occupying the space where paved public street used to run north and south between North Temple and South Temple Streets, and of largely straight-line paved walkways where the sidewalks used to run on the east and west sides of the paved public street (the “Plaza Sidewalks”). (See Clark Declaration, Exhibit 11; Clark Declaration, Exhibit 4, pp. 49-50; Bauer Affidavit, Exhibits A-P)
39. At their northern and southern ends, the Plaza Sidewalks adjoin and connect with the public sidewalks running east and west along the southern and northern edges, respectively, of North Temple and South Temple Streets. (See Clark Declaration, Exhibit 11; Clark Declaration, Exhibit 4, pp. 54-56; Bauer Affidavit, Exhibits A, C, I, M)
40. The landscaped plaza features a large, oval reflecting pool roughly at its center, directly east of the LDS Church’s Salt Lake Temple and west of sidewalks running east and west across the block directly to the east of the Plaza, generally referred to as the Church Office Building block. (Clark Declaration, Exhibit 11; Clark Declaration, Exhibit 4, pp. 56-57; Bauer Affidavit, Exhibits A, M, N)
41. The landscaped plaza also includes a number of internal pathways that provide access to internal plaza features, around the reflecting pool and otherwise across the plaza at various angles. (See Clark Declaration, Exhibit 11; Clark Declaration, Exhibit 4, pp. 56-57; Bauer Affidavit, Exhibits A, B, I, N, O, P)
42. The Main Street Plaza Sidewalks are from about 12 to 16 feet wide. Along the western edge of the Plaza, the Plaza Sidewalk is designed to allow emergency vehicles to be able to traverse the entire length of Plaza along its north-south axis. (Clark Declaration, Exhibit 4, pp. 60-67)
43. The Main Street Plaza Sidewalks are a public thoroughfare, designed and built to allow pedestrians to pass between North Temple and South Temple along the right-of-way formerly occupied by a public street and sidewalks. (Deposition of Emil Pierson, attached as Exhibit 27 to Clark Declaration, pp. 94-97; Deposition of Russell Weeks, attached as Exhibit 28 to Clark Declaration, pp. 8-10)
44. There are no physical barriers to pedestrian entry upon or movement along the Main Street Plaza Sidewalks. In other words, if one enters the sidewalks from either North Temple or South Temple, one can proceed in a more or less straight line across the Plaza (more straight along the western sidewalk), without using the Plaza’s internal paths, to arrive once again on the adjoining public sidewalks. (See Bauer Affidavit, Exhibits A, C-I, , J-N)
45. Differences in pavement and atmosphere are visible on many public sidewalks still owned and controlled by the City, including those in the direct vicinity of the Main Street Plaza. (See Bauer Affidavit, Exhibit A)
46. The LDS Church estimated the number of visitors to the Main Street Plaza and, from the Plaza to downtown Salt Lake City, at some 5,000,000 per year, and projected that the number would increase to some 10,000,000 over the next several years. (Exhibit 7, at p. 3)
I. THE MAIN STREET PLAZA SIDEWALKS ARE A PUBLIC FORUM PROTECTED BY THE FIRST AMENDMENT.
A. The Main Street Plaza Sidewalks Are Equivalent In Form And Function To Public Pedestrian Thoroughfare Sidewalks; Therefore, They Are A Public Forum Protected By The First Amendment.
Sidewalks “traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.” United States v. Grace, 461 U.S. 171, 179 (1983). Indeed, such sidewalks have been called the “archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988). That is because “’time out of mind’ public streets and sidewalks have been used for assembly and debate, the hallmarks of a traditional public forum." Id. (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)).
There can be no genuine dispute that the Main Street Plaza Sidewalks are equivalent in form and function to sidewalks that have long been held a traditional public forum. The sidewalks are a through-route, part of the north-south axis of Main Street, which the LDS Church hoped would, by their addition, become “the most pedestrian oriented street in Salt Lake City.” Indeed, the sidewalks are the only pedestrian thoroughfare between North Temple and South Temple on Main Street. They are what the LDS Church called a “funnel” to the downtown shopping area. They are thus not merely a means of accessing the Main Street Plaza; they are not simply a part of the LDS Church “campus”; their use is not limited to providing ingress to and egress from adjacent church-owned buildings. They exist, as they always have, not only for the benefit of patrons seeking access to the LDS Church’s amenities but also for the general public.
The Main Street Plaza Sidewalks are in no sense similar to sidewalks that in rare and exceptional cases have been found not to constitute a public forum. Those cases carefully distinguish between sidewalks, such as those at issue here, that are generally used by the public as a thoroughfare, and those with a more limited or exclusive function, such as providing solely a means of ingress and egress to buildings or facilities. (4) Thus, they merely underscore the conclusion that the sidewalks at issue here are a public forum.
Although the Main Street Plaza Sidewalks serve as a means of ingress and egress to the Plaza, and to the LDS Church’s other adjacent facilities such as Temple Square and the Joseph Smith Memorial Building, their function is not limited to that. By design and by law as set forth in the Deed, there are and there can be no physical barriers setting off the Main Street Plaza Sidewalks from the public sidewalks on adjoining North Temple and South Temple streets. The only physical difference between the Main Street Plaza Sidewalks and the adjoining sidewalks, or the sidewalks on the former Main Street (which all parties agree were a traditional public forum), is their material composition and slight variations in grade. No legal difference can possibly turn on such trivial cosmetic changes. Indeed, differences in pavement and atmosphere are visible on many public sidewalks still owned and controlled by the City, including those in the direct vicinity of the Main Street Plaza. Those differences have not altered and cannot legally alter their status as a public forum.
In summary, there can be no genuine dispute that, if the Main Street Plaza Sidewalks were still owned by the City, they would constitute a public forum. There also is no dispute that the restrictions the City agreed to impose on the Main Street sidewalks could not constitutionally be applied in a public forum, as they discriminate based on content and viewpoint. (5) Therefore, the question becomes whether the sale of the sidewalks allows the imposition of unconstitutional restrictions.
B. Sidewalks That Serve A Public Function Cannot Be Stripped Of Their Public Forum Status And Subject To Unconstitutional Restrictions Merely By Transferring Title To A Private Party And Declaring That They Are No Longer Public Forums.
Given that the sidewalks on the Main Street Plaza are public thoroughfares that would be subject to First Amendment protection if they were owned by the City, the next question is whether the City’s sale of the sidewalks to the LDS Church and the parties’ stated intent that they no longer be a public forum are sufficient to allow the imposition of discriminatory restrictions. That question is of some importance, because it goes to whether cities can strip public spaces of constitutional protection while maintaining their essential public function through privatization. With all due respect to the City and the private developer/Intervenor, plaintiffs submit that that the constitutional rights attaching to public spaces should not be for sale.
The Supreme Court and lower courts have consistently held that the formalities of legal title are irrelevant when a sidewalk is used as a public thoroughfare. “[W]herever the title of streets and parks may rest, they have immemorially been held in trust for the public.” Frisby, 487 U.S. at 480-81 (emphasis added), quoting Hague, 307 U.S. at 515. Consistent with the distinction between limited access sidewalks and thoroughfare sidewalks discussed above, the courts make it clear that this follows from the way Americans traditionally use sidewalks, not from any particular private designation. Id. Frisby relied on Hague, where the Court explained:
“Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views . . . must not, in the guise of regulation, be denied.”
Hague, 307 U.S. at 515-516. This means that open thoroughfares may not be confined to some “non-public” purpose like waking in silence, even if the government or a private entity so decrees. See Grace, supra, 461 U.S. at 179-80.
This limited exception to the general rule that the owner of private property may exercise the full “bundle of rights” inherent in ownership – including the right to exclude and to regulate without regard to constitutional requirements – was first articulated in the case of Marsh v. Alabama, 326 U.S. 501 (1946). There, the Supreme Court faced the question of whether privately owned streets and sidewalks could fall within the scope of the First Amendment. A private corporation owned the paved street and sidewalk running alongside a series of company-owned storefronts. The private corporation argued that the fact that it held title to the sidewalk gave the corporation the absolute right to order the arrest of a Jehovah’s Witness who distributed leaflets on the sidewalk in violation of a posted notice prohibiting such distribution. The Supreme Court rejected the corporation’s argument that ownership of spaces that serve a public function means the owner has absolute control:
“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”
Marsh, 326 U.S. at 506 (emphasis added).
Marsh thus stands for the proposition that the public function of even private property may bring it within the public forum doctrine. That proposition applies not only in “company towns”; it applies whenever a private owner agrees that his property can be used for a public function such as a thoroughfare for pedestrian access and passage:
“Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”
Marsh, 326 U.S. at 506.
In Evans v. Newton, 382 U.S. 296 (1966), the Supreme Court again dealt with the question of whether privately owned property could be held to constitutional standards. The property at issue was formerly a public park that had been transferred to a trust governed by private trustees. The private trustees argued they could circumvent the Constitution and discriminate on the basis of race because title to the park rested with them rather than with the City. Emphasizing that the mere fact of private ownership was not enough to divest the park of its “public character,” the Court held that the Fourteenth Amendment applied “regardless of who now has title under state law." Id. at 302. Thus, the Fourteenth Amendment’s proscription against segregation applied in a park that was public in character no matter how the city and the private owners attempted to re-characterize it.
In addition to Marsh and Evans, a number of lower courts have concluded that constitutional guarantees apply to privately owned spaces open to public access. Citizens To End Animal Suffering v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990), is remarkably similar to this case. There the City of Boston granted to a private corporation a ninety-nine year lease for the Faneuil Hall Marketplace, consisting of several buildings and the cobblestone lanes between and adjacent to them. Id. at 68 n.1. As here, the city in that case reserved an easement “for the public’s access and passage” over the lanes. Id. at 73. (6)
The lanes, formerly public streets, were closed to vehicular traffic but remained part of the city’s pedestrian grid, available not only for access to the Marketplace but also for “pedestrians wholly uninterested in the Marketplace’s offerings [who] cross its lanes daily in travelling to the waterfront” and visiting adjacent public areas. Id. at 68, 70 and n.11. Indeed, the court observed that “the City’s overall purpose in leasing the premises to defendant was the rejuvenation of the downtown area, all for the benefit of the community” and to “revitalize the downtown area.” Id. at 73-74.
Based on these facts – all of which are present here – the court concluded that the public thoroughfares traversing the Marketplace were a First Amendment “public forum”:
“[T]he City reserved a public easement over the lanes. The lanes are used for access, for strolling about the Marketplace, and as a “historic pedestrian connection” to the purely and traditionally public adjoining areas. These lanes thus resemble public sidewalks. Although sidewalks are not public fora per se, . . . the facts here establish that these lanes must be considered, at the least, as limited public fora.”
Id. at 75-76 (emphasis added, internal citations and quote omitted).
In Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 45 F. Supp. 2d 1027 (D. Nev. 1999), the court was called upon “to consider whether a pedestrian walkway, located on private property parallel and adjacent to the Las Vegas Strip and connected at both ends to public sidewalks, is a public forum for First Amendment purposes.” Id. at 1029. The Venetian claimed title to the property, including “full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment[s] to the United States Constitution,” but also agreed to construct a private sidewalk along the property fronting the Las Vegas Strip for pedestrian access. Id. at 1030. There was no dispute that the sale agreement made the property on which the sidewalk is located the private property of the Venetian; the question was “whether the Venetian’s private ownership of the property on which the sidewalk is located entitles the Venetian to regulate the free expression of those who use it.” Id. at 1035.
The court duly noted that “[p]rivate property rights are very important and should not be disregarded simply because a private owner performs a function that is sometimes performed by the government.” Id. at 1035. Nevertheless, following the careful analysis of Faneuil Hall, the court concluded:
“The sidewalk in front of the Venetian was previously public, serves as a thoroughfare along a main public road, and serves the needs of the general public. As such, it falls within a very limited exception to the general rule that private property is not subject to the First Amendment. Since the sidewalk performs a public function, the Venetian does not have the right to exclude individuals from the sidewalk based upon permissible exercises of their right to expression under the First Amendment. . . . The public may use the Venetian’s sidewalk for First Amendment purposes to the same degree that it may use any other public sidewalk subject to content-neutral and reasonable time, place and manner restrictions.”
Id. at 1035-36.
In Thomason v. Jemigan, 770 F. Supp. 1195 (E.D. Mich.1991), the court reached the same conclusion, although on slightly different facts. In that case the city had vacated its right-of-way at the Planned Parenthood clinic so that the sidewalk would not be considered a public forum for anti-abortion protesters. The court ruled that the government could not strip the area of its public forum status merely by vacating its right-of-way on private property. Regardless of who held title to the underlying land, public forum status remained: “It has all the characteristics of the rest of the sidewalk running parallel to Professional Drive. Therefore, the portions of both the street and the sidewalk encompassed within the vacated easement qualify as public fora.”
Id. at 1201.
Similarly, in Jackson v. City of Markham, 773 F. Supp. 105 (N.D. Ill. 1991), another district court held that the full spectrum of First Amendment rights applied to a private sidewalk despite the adjacent property owner’s claim that the sidewalk was privately owned. At issue in Jackson was whether the owner of a roller rink could be enjoined from excluding a plaintiff whose child had been hurt at the rink, from carrying, on the sidewalk and the shoulder adjacent to the roller rink, a sign stating, "Children are hurt here." Id. at 106. The roller rink and its abutting sidewalk in Jackson were situated along a public highway and the sidewalk was located within the right-of-way preserved by the Illinois Department of Transportation. Title rested with the roller rink, although subject to the state’s right of way. The Jackson court relied on the principle articulated by the Supreme Court in Hague and Frisby that no matter where title rests, a public street or sidewalk must remain open to First Amendment activity, and emphasized the fact that the sidewalk was encumbered by a public right-of-way. Id. at 108.
The important constitutional principle that underlies these cases is that spaces that are open to the public and that serve an important public function must be protected as public forums, even if the government tries by private deed or declaration to characterize them otherwise, lest the time-honored role of such spaces as the principal locus of the marketplace of ideas become a chimera. See ISKCON v. Lee, 505 U.S. at 698-99 (Kennedy, J., concurring) (arguing against employing an analysis that would give “the government authority to restrict speech by fiat”). That kind of functional analysis makes sense whether the property at issue is public or private. In Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), the court admitted that “there is no clear precedent on the matter whether private property can be considered a public forum, see Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 742, 135 L. Ed. 2d 888, 116 S. Ct. 2374 (1996),” (7) but it concluded the private property in that case was a public forum, based on three factors: 1) the historical association of the private property with a public forum; 2) the dedication of the property to public use; and 3) the physical location of the property in relation to the public park. Id. at 494-95.
In short, with respect to private as well as public property, the courts perform a functional analysis, rather than relying on self-serving, conclusory labels applied by the government, in order to avoid serious violations of consitutional principles by mere fiat or declaration. The common-sense factors that dictate a conclusion that private property dedicated to a public use is protected by the First Amendment are all present in this case. The Main Street Plaza Sidewalks share all the physical characteristics of the former sidewalks of Main Street – undisputedly a traditional public forum to which they bear an ineradicable historical association – and to the contiguous public sidewalks which they adjoin. The City has guaranteed public access to the sidewalks at all times, both day and night, unimpeded by any physical barriers. The sidewalks thus form an integral part of the network of municipal sidewalks that pedestrians routinely use to walk up and down Main Street. There are no visible boundaries that would distinguish the Main Street Plaza Sidewalk from other public sidewalks. Thus, like the private property at issue in in Marsh, Evans, Faneuil Hall, Venetian, Marshfield and the other cases on which plaintiffs rely, the sidewalks on the Main Street Plaza serve a public function pursuant to a public right, and therefore deserve constitutional protection.
II. EVEN IF THE SIDEWALKS ON THE MAIN STREET PLAZA WERE A NON-PUBLIC FORUM, THE RESTRICTIONS TO WHICH THE CITY AGREED WOULD BE INVALID AS UNREASONABLE AND VIEWPOINT-BASED, IN VIOLATION OF FREE SPEECH AND EQUAL PROTECTION
Even if one were to ignore the fact that the Main Street Plaza Sidewalks are equivalent in form and function to traditional public forum sidewalks, and the law requiring that such sidewalks be treated as a First Amendment public forum even if private owned, the fact would remain that there is a public property right in the form of an easement. The City did not convey fee title to the property; it reserved a public right of access and passage. Even if that public right constitutes a “nonpublic forum,” the restrictions to which the City agreed still would be invalid. That is because they are unreasonable and they discriminate on the basis of viewpoint.
Even in a nonpublic forum, restrictions on speech must be “reasonable in light of the purpose served by the forum” and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Hawkins, 170 F.3d at 1287; see also Arkansas Educ. Tele. Comm’n v.Forbes, 523 U.S. 666 (1998); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). A different conclusion would mean that, regardless of the fact that the sidewalks on the Main Street Plaza continue to appear and function as traditional sidewalks, and regardless of the fact that expressive activity continues to be permitted on the sidewalks, the City could constitutionally limit the public’s use of the sidewalks for expressive activities to a particular viewpoint. That is anathema to the core principles underlying the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Equal Protection Clause.
1. The Restrictions To Which The City Agreed Are Not Reasonable.
In ISKON v. Lee, the Court applied a reasonableness test to conclude that even though the internal passages of an airport terminal were not a public forum, airport officials could not ban the distribution of literature inside the terminal. O’Connor, J., (concurring), 505 U.S. at 685; Kennedy, J., (concurring), id., at 693. Justice O’Connor, who provided the crucial fifth vote invalidating the ordinance, summarized the relevant inquiry determining the reasonableness of a restriction:
“The reasonableness of the Government’s restriction [on speech in a non-public forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Cornelius, supra, at 809. “‘Consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular involved.’” Kokinda, supra, at 732, quoting Heffron v. International Soc. For Krishna Consciousness, Inc., 452 U.S. 640, 650-651. 2d. 298, 101 S.Ct. 2559 (1981).
We have said that a restriction on speech in a non-public forum is “reasonable” when it is “consistent with the [government’s] legitimate interest in ‘preserving the property. . . for the use to which it is lawfully dedicated.’” Perry,supra, at 50-51, quoting Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 129-130, 69 L.Ed. 2d 517, 101 S.Ct. 2676 (1981) (internal quotation marks omitted).
ISKON, 505 U.S. at 687.
Applying Justice O’Conner’s reasonableness test to the facts of this case, the restrictions to which the City agreed are plainly unreasonable. The most salient facts in this regard derive from the expressive activities the City agreed to allow to continue on the Plaza. This is not a case, like ISKON v. Lee or Hawkins, where the government imposes a blanket prohibition on certain types of expressive activities, or even a complete ban on all expressive activities, as incompatible with the nature and use of the property. To the contrary, the City agreed to permit all kinds of expressive activity on the Main Streeet Plaza, including, “without limitation,” the “distribution of literature,” the “erection of signs and displays,” and the “projection of music and spoken messages.”
Under the City’s scheme, the LDS Church is free to provide a forum for church-approved speakers and special events attracting large crowds, which could unquestionably be obstructive to the public’s right of access and passage. Similarly, church-sponsored or approved displays or kiosks can be erected, with messages celebrating the LDS Church’s particular viewpoint. Thus, unlike the absolute bans on solicitation and handbilling upheld in ISKON v. Lee and Hawkins, the City cannot be heard to argue that such activities are fundamentally incompatible with the nature and use of the property, and that the one-sided restrictions are therefore reasonable. See Jews for Jesus v. MBTA, 984 F.2d 1319 (1st Cir. 1993) (invalidating ban on leafleting and collection of signatures in train station under reasonableness standard since conduct was consistent with purposes of the premises).
Moreover, the City has installed LDS Church security as a gatekeeper. As such, the LDS Church has the authority to remove individuals “distributing literature” and to banish such individuals permanently. The threat of enforcement of vague restrictions gives security staff tremendous power to stifle speech. The threat of having the police called and being subject to arrest is sufficient to scare off many would-be protestors.
Thus, the limitations placed on the plaintiffs’ activities here unreasonable under the less exacting standard applicable to non-public forums because they constitute discrimination without regard to their compatibility with the function of the Main Street Plaza. If this case involved a train station, airport, or even fairgrounds, the question might be closer. However, Main Street anchors downtown Salt Lake City and by all accounts the Main Street Plaza is designed and destined to become one of the city’s premier public gathering places. The plaintiffs do not insist on the right stage a parade or even conduct a demonstration. They want the right to speak and assemble on the sidewalks, interact with the public, distribute literature, gather signatures, hold or carry a banner, and set up a small folding table in connection with those other activities. These less intrusive activities clearly comport with the multi-purpose function of the types of areas that the Main Street Plaza closely resembles.
2. The Restrictions To Which The City Agreed Are Not Viewpoint-Neutral.
Besides being unreasonable, the restrictions in this case are not viewpoint-neutral. As noted above, while the government may restrict discussion in a nonpublic forum to certain subject matters, even in a nonpublic forum the government may not “regulate speech in ways that favor some viewpoints . . . at the expense of others.” Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993). Accord, Gentala v. City of Tucson, 213 F.3d 1055, 1063 (9th Cir. 2000); East High Gay/Straight Alliance v. Bd. of Educ., 81 F. Supp. 2d 1166, 1172 (D. Utah 1999).
In this case, the distinction that the City chose to draw in the Deed unquestionably favors some viewpoints at the expense of others. Under the Deed, for example, the LDS Church will be permitted to distribute literature dealing with legislation or constitutional amenmdments as to which the church, in the exercise of its own First Amendment rights, has taken a public position. No one else, including the plaintiffs, however, could distribute literature on the same subjects from a different viewpoint. In excluding certain perspectives on such important political and moral issues, the City has engaged in the same type of illegitimate viewpoint discrimination that was struck down in Rosenberger v. University of Virginia, 515 U.S. 815, 831 (1995) and Lamb’s Chapel, 508 U.S. at 392-93. In those cases, the government prohibited speech from a religious viewpoint on subjects otherwise open for discussion in a nonpublic or limited public forum. The restriction was invalid as an impermissible viewpoint discrimination. See Rosenberger, 515 U.S. at 831; Lamb’s Chapel, 508 U.S. at 393.
3. The Restrictions To Wbich The City Agreed Are Discriminatory.
Besides being unreasonable and constituting invidious viewpoint discrimination, the restrictions at issue here are a violation of the Fourteenth Amendment’s guarantee of equal protection of the laws. In ACLU of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998), the court denied the plaintiffs’ motion for a preliminary injuction to the extent it claimed that the “Fremont Street Experience” in downtown Las Vegas was a public forum protected by the First Amendment. Id. at 1078-79. Nevertheless, the court held that plaintiffs were likely to succeed on their separate equal protection challenge, on the ground that the City’s effort to ban certain expressive activity selectively was not rationally related to the City’s “legitimate interests in maintaining a safe and comfortable atmosphere in the Mall in order to compete with other commercial and entertainment venues by reducing litter, preventing harassment and intimidation of pedestrians, and restricting activities which interrupt pedestrian traffic flow and cause pedestrian congestion.” Id. at 1079.
Here, the City conceivably could have reserved a public easement for pedestrian access and passage and made it subject to certain reasonable, neutral regulations rationally related to legitimate interests in safety, access, prevention of litter, or even protection of pedestrians from harassment. This it did not do. Instead, the City agree to permit the “distribution of literature” by the church and other expressive activities by church representatives who are free to approach pedestrians and share a religious message. The City thus gave rise to an inescapable inference that it prefers the church’s speech to the “hurly-burly” that characterizes the marketplace of ideas. Such a bald preference constitutes not only viewpoint discrimination but also religious discrimination, in violation of the Fourteenth Amendment’s Equal Protection Clause.
III. THE CITY’S DELEGATION OF AUTHORITY TO DECIDE WHO CAN USE THE EASEMENT ACROSS THE PLAZA TO A CHURCH ALSO VIOLATES THE ESTABLISHMENT CLAUSE.
Under the Deed, the function of interpreting and enforcing the restrictions on the public’s right of access and passage pursuant to the easement rests not with the City but exclusively with the LDS Church. This means that not only can the church exercise the ordinary rights of a landowner to regulate the conduct of its invitees; it also can exercise the function of regulating public access and passage pursuant to a public easement.
As one preeminent constitutional law scholar has stated, deciding who can enjoy access to and use of a public thoroughfare is a traditional state function:
“[D]eciding to cross the street when a police officer says you may is not . . . a “public function”; but authoritatively deciding who is free to cross and who must stop is a “public function” whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from state revenues or wears civilian garb and serves as a volunteer crossing guard.”
L. Tribe, American Constitutional Law § 18-5, at 1705 (2d ed. 1988). As the District Court in Faneuil Hall observed, in terms fully applicable here:
“Indeed, the power to decide who can use a public easement goes beyond even that of a policeman. Unlike the policeman who merely executes decisions of policy, defendant here is actually making those policy decisions. Defendant’s role is thus more like that of a legislature, which is even more clearly an exclusive state function. The essential purpose of the easement here is to ensure public access to the Marketplace. The exercise of control over the public’s right to use the easement is subject to constitutional scrutiny, whether employed directly by the State or through delegation to a private party.”
745 F. Supp. at 72.
As the Faneuil Hall court properly concluded, in an ordinary case the delegation of this vast, super-legislative power to a private party would have the legal consequence of attributing that party’s conduct to the state and subjecting it to constitutional scrutiny under 42 U.S.C. § 1983. 745 F. Supp. at 74. In this case, however, there is an additional, serious consequence. Here, the City delegated this vast power not just to any private party, but to a church. Such delegation of “a power ordinarily vested in agencies of government” to a religious institution violates the Establishment Clause, because it creates a “substantial breach” in the wall that separates the church from the state. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122-23 (1982).
In Grendel’s Den, the City of Boston adopted a statute that vested in the governing bodies of churches the power to prevent the issuance of liquor licenses for establishments within a 500-foot radius of the church, simply by objecting to the license application. The Court began its analysis by observing that the statute dealt with a power ordinarily vested in governmental agencies, substituting the unilateral and standardless power of the church for the reasoned decisionmaking of a public legislative body. Id. Then, applying the familiar Lemon test (see Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1970) (“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . .; finally, the statute must not foster ‘an excessive government entanglement with religion’”)), the Court concluded the statute violated the Establishment Clause.
The Court noted that statute no doubt embraced the “valid secular legislative purposes” of protecting churches from “the ‘hurly-burly’ associated with liquor outlets”; however, those purposes could have been achieved by means short of the grant of an absolute veto power. Grendel’s Den, 459 U.S. at 123-24. Moreover, because the veto power could be employed for “explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith,” the statute could “be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.” Id. at 125-26. Finally, in terms of entanglement, the Court noted that “the core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions. . . . The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Id. at 126-27.
The same analysis of the same factors leads to the same conclusion here. As in Grendel’s Den, the vesting of discretion to control access to and use of a public easement might be seen as advancing some valid secular purpose. It is at least conceivable, however, that reasonable regulations consonant with the nature and use of the Plaza could have been developed. Unfortunately, that possibility was never explored in any negotiation; instead, the City merely acquiesced in the Church’s demands. At the very least, this raises questions about the legitimacy and necessity of any purported secular purpose for the one-sided restrictions.
Even assuming a valid secular purpose, however, the restrictions fail the two remaining Lemon tests. First, as in Grendel’s Den, the church’s power here is “standardless, calling for no reasons, findings or reasoned conclusions” to support what could amount to a permanent banishment from this property. The LDS Church’s security policy does not add anything of substance to the vague standards in the Deed, which allow the LDS Church to prohibit such things as “offensive” or “threatening” speech. If the City were the policeman on the block, it could never enforce such vague restrictions, but would be required to respect constitutional limits on its ability to regulate such speech. Moreover, the LDS Church’s discretionary regulatory power not only could “be employed for explicitly religious goals” – to ensure that only LDS-approved messages will be heard.
Imagine, for example, two would-be users of the public easement in this case: one, armed with pamphlets describing the LDS Church’s view of salvation or families; the other, from the Unitarian Church, the National Organization for Women, or Utahns for Fairness, armed with literature describing a different vision. The church, as gatekeeper, could allow (and could even “employ” as a missionary or volunteer) the former to enter and to distribute her pamphlets, while keeping the latter outside the “gate” so erected. In this sense, it is ironic at best that the City insisted that the church not erect any physical walls or fences, but allowed the church to erect figurative walls and fences to keep out peaceful, lawful conduct.
Without question this situation creates what the Supreme Court called “a significant symbolic [as well as actual] benefit to religion in the minds of some by reason of the power conferred.” Id. at 125-26. That, to plaintiffs, is the most troubling aspect of the City’s conduct in this case.
Finally, the Deed “enmeshes churches in the processes of government and creates the danger of ‘[political] fragmentation and divisiveness along religious lines.’” See id. at 127. A review of the public record in this case evidences concerns on the part of at least some in the community over the breach in the wall separating church and state in this case. The City might have sought some accommodation necessary to maintain not only public use of Main Street but also the necessary and appropriate relationship between the public, the church and the state in this case. Instead, the City decided to “substitute[ ] the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications.” Grendel’s Den, 459 U.S. at 127. In a City perhaps uniquely subject to perceptions of religious bias in favor of the predominant religion, the City’s conduct must be subjected to the highest degree of scrutiny to ensure that church and state remain separate.
By Deed and by design, the Main Street Plaza Sidewalks are a public forum. If they are not a public forum, they very nearly are. The more a non-public forum resembles a public forum, the less the justification there is for suppressing speech. In rejuvenating Main Street, the City and the church undertook to have reestablished downtown as a premier pedestrian area. Functionally, nothing significant has changed in its character as the core of a bustling urban center, except to enhance that character. Main Street remains today what it has always been until a couple of years ago, except that free speech has been banished, and church security has been installed to police the public’s use of a public easement.
The Main Street Plaza Sidewalks are not just any sidewalks. They cannot be stripped, by deed or by declaration, of their special status. They should be open, not just to pedestrian traffic, but to the traffic in ideas and opinions that is at the very core of our democracy. If the rich or powerful or orthodox can appropriate and monopolize the paradigm of the “marketplace of ideas” that Main Street represents – that anyone, rich or poor, powerful or downtrodden, believer or non-believer, should have a voice and a platform to debate the great issues of the day – then freedom of expression is gravely at risk for all of us.
DATED this 3rd day of November, 2000.
Stephen C. Clark
ACLU of Utah
Attorney for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that I caused to be served by hand a true and correct copy of the foregoing Memorandum in Support of Motion for Partial Summary Judgment, this 3rd day of November, 2000, upon the following:
Roger F. Cutler, Esq.
Salt Lake City Attorney
451 South State Street, Suite 505A
Salt Lake City, Utah 84111 Von G. Keetch, Esq.
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
P.O. Box 45120
Salt Lake City, UT 84145-0120
(1) Besides the sidewalks running along the edges, the plaza also has walkways criss-crossing the interior of the plaza. Those walkways, as well as the sidewalks, are covered by the easement, and thus are open at all times. Unlike the sidewalks, however, the interior of the plaza has been substantially changed in form and function from the city street it replaced, and the LDS Church now claims it is a “private religious garden” and not, as it represented before the sale, “a free park to the City.” Plaintiffs reserve their claim that, notwithstanding the changes in the plaza’s appearance and the church’s characterization of it, the plaza as well as the sidewalks is a public forum, but that claim is beyond the scope of plaintiffs’ Motion for Partial Summary Judgment.
(2) For ease of reference, the block of Main Street between North and South Temple at issue in this litigation will be referred to simply as “Main Street,” and although Intervenor Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints was the official party to the transaction at issue, that entity will be referred to simply as the “LDS Church.”
(3) Plaintiffs’ hope and understanding is that other parties are lodging with the Court the entire transcripts of Planning Commission and City Council meetings as well as depositions taken in this matter. Accordingly, plaintiffs attach only the portions to which they specifically refer, reserving the right to supplement and/or to lodge complete transcripts as appropriate.
(4) See, e.g., United States v. Kokinda, 497 U.S. 720, 727-28 (1990) (Court distinguished between sidewalks used for limited purposes, which are not a public forum, and those used to “facilitate the daily commerce and life of the neighborhood or city,” which are a quintessential public forum: “The municipal sidewalk that runs parallel to the road in this case is a public passageway. The Postal Service’s sidewalk is not such a thoroughfare. Rather, it leads only from the parking area to the front door of the post office.”); International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 675-76 (1992) (upholding regulation permitting certain expressive activities on the sidewalks outside the terminals, but prohibiting such activities with the terminals, on ground that internal walkways within airports have not “time out of mind” been open to expressive activity, nor is their purpose to serve as thoroughfares or to facilitate expressive activities); Hawkins v. City and County of Denver, 170 F.3d 1281, 1287 (10th Cir.) (“The Galleria does not qualify as a traditional public forum, for it is not . . . analogous to a public right of way or thoroughfare. The Galleria does not form part of Denver’s automotive, bicycle or pedestrian grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughway to another destination. Rather, the Galleria’s function is simply to permit ingress to and egress from the DPAC’s various complexes.”), cert. denied, 145 L. Ed. 2d 145, 120 S. Ct. 172 (1999); Chicago ACORN v. Metropolitan Pier Exhibition Auth., 150 F.3d 695, 702 (7th Cir. 1998) (“The sidewalks are not through-routes; they only lead to the pier facilities themselves. Rather than being part of the city’s automotive, pedestrian or bicyclist’s transportation grid, the sidewalks on the pier and the service street on its north side are internal to the pier, like the sidewalks, street and parking lots in Disney World.”).
(5) Both the City and the LDS Church have admitted as much, but whether they had or not it is clear that the restrictions not consistent with those that could constitutionally be enforced in a public forum. See Hawkins, 170 F.3d at 1286-87 (discussing constitutional requirements for regulating speech in a public forum); see also Point II, below.
(6) The easement provided: “The City hereby reserves unto itself . . . a perpetual, non-exclusive easement, for the benefit of and use by the general public, for reasonable, peaceful and orderly pedestrian access and passage . . . over and upon the surface of such portions of former North Market Street, former South Market Street, [etc.].” Faneuil Hall, 745 F. Supp. at 70 n.10.
(7) The Supreme Court in this case eschewed forum analysis in favor of a balancing approach, “to assure that it properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech.” 518 U.S. at 742.