An episode between members of the Progressive Leadership Alliance of Nevada and security guards at CitiCenter has prompted the American Civil Liberties Union to get involved in a First Amendment issued prompted by the bus drivers’ strike.
The incident happened when Bob Fulkerson and NEW Project Director Brenda Carerra and Nevada Youth Activist Project’s Inger McDowell were registering new voters at the bus terminal on Aug. 14, as drivers were picketing nearby. Fulkerson walked the picket line for a while and then attempted to rejoin Carerra and McDowell. He was asked to leave by RTC security guards, and he eventually left.
While the incident was happening, though, Fulkerson was on the telephone with ACLU Executive Director Gary Peck in Las Vegas, who advised him that he was swimming in gray waters.
The issue: Can public operations like the Citifare main bus terminal, airports or convention centers enforce rules that regulate free speech?
The ACLU says they can’t, even if Nevada laws say they can.
RTC officials aren’t sure it’s so black and white. They’ve operated under the assumption that CitiCenter is a private forum, not a public one, and that CitiCenter is run strictly for the benefit of the passengers. There are different rules for free speech between public and private forums.
“This is a vast, vast legal quagmire,” said Jim McGrath, RTC public information officer. “There is a huge amount of case law on both sides of this issue.”
McGrath says the RTC and ACLU representatives will meet next week to talk about free speech.
“All the parties are getting together to meet like reasonable adults, and we’ll see where it goes from that point,” he said. “Nobody here is trying to take away anybody’s First Amendment rights.”
During the ACLU’s investigation after the PLAN incident, it arose that some northern Nevada facilities, including CitiCenter, may be deciding who can use the sidewalks as a public forum on a case-by-case basis. These content-based decisions about who can or cannot not use sidewalks to express themselves is a big no-no under the First Amendment, although the U.S. Supreme Court has allowed facilities to make reasonable time, place and manner restrictions.
Peck said RTC is cooperating and doesn’t expect to file a lawsuit, although “litigation is for the ACLU always an option of last resort.”
“What we intend to do is sit down with the RTC officials and try to resolve our differences in an amicable and professional way,” Peck said. “If we can, the ACLU will be satisfied and the public interest served. If we cannot resolve our differences that way, then we will certainly explore every possible means at our disposal to fix the problem.”
The ACLU and the Venetian Resort Hotel Casino in Las Vegas battled in court over sidewalk rights in 1999. The Venetian, which was under construction at the time, claimed ownership of the sidewalks. The ACLU won the lawsuit and the appeal.
“We’ve litigated these issues a number of times in the South,” Peck said. “What we are dealing with here are quintessential, fundamental First Amendment rights in the only forum that is available to people who don’t have a lot of money, don’t have access to the media, who don’t have the kinds of resources that organized and well-financed groups do. This is the only place that those folks can get on their proverbial soapboxes and express their points of view.”