Back in 2005, two preachers were arrested in front of the Bellagio casino on the Las Vegas Strip for carrying “Trust Jesus” signs. They’d originally been informed a Clark County ordinance forbade them from carrying signs wider than their own bodies (though that ordinance grants an exception to union picketers, who apparently enjoy some “extra” constitutional consideration.)
When the ministers returned with tall, narrow signs designed to obey the ordinance, they were busted for “obstructing pedestrian traffic,” though photos they took at the scene give no indication they’d done any such thing. The charges weren’t even pursued.
And “Those two street preachers were pretty savvy,” explains Gary Peck, executive director of the Nevada Chapter of the American Civil Liberties Union. “They had cameras; they took pictures; they knew enough to call us. We don’t know how many people they (casino security guards) have run off that we never hear from. I know they’ve run off plenty of TV reporters and cameramen.”
State Sen. Terry Care, D-Las Vegas, is rightfully chagrined at what he sees as a blatant violation of free speech rights on sidewalks which the federal courts have clearly ruled to be a public forum, where people enjoy full First Amendment protection. So he has introduced Senate Bill 13, barring local jurisdictions from banning signs based on their content.
Allen Lichtenstein, lead counsel for the Nevada Chapter of the American Civil Liberties Union, figures that bill, while well intentioned, would prove “pretty useless” as written. Testifying before the Senate Government Affairs Committee at the capital two weeks ago, Mr. Lichtenstein suggested Sen. Care’s proposal be amended to bar local municipalities from arresting anyone for “obstructing unless they’re really obstructing.”
Good heavens. From the way municipal officials proceed to swarm the committee, buzzing with outrage, you’d have thought Sen. Care and Mr. Lichtenstein had proposed banning the further use of the parking meter.
If cities and counties can’t restrict signs by content, why, what would stop people from carrying signs showing pornography or advocating terrorism, barked Senate Majority leader Bill Raggio, R-Reno.
Representatives of Clark County, Henderson, and the Nevada League of Cities hurried forward to agree with Mr. Raggio’s position, at which point Sen. Raggio denied he had a position, contending he had only asked a question.
In search of even sillier red herrings, Las Vegas City Attorney Brad Jerbic and one of his deputies, William Henry, ululated that if local authorities could not control what’s written on signs, why, people would start wearing sandwich boards reading “Buy sex from Susie; call this number.”
Lobbyist (and former lawmaker) Scott Scherer, representing the Fremont Street Experience, warned that “allowing” people to write whatever they want meant people could walk around Fremont Street with signs urging folks to drink Pepsi, violating his employers’ right to sign an exclusive advertising deal with Coca-Cola.
Nevada Resort Association lobbyist Morgan Baumgartner testified that sidewalks in front of Strip casinos are private property. The association views Sen. Care’s bill as an infringement on their property right to dictate what people say on those sidewalks, she explained. The association would consider a law broadening permitted uses of those private sidewalks as a Fifth Amendment “taking” of private property, she said.
The only thing missing in Carson City that day was Tim Curry in a garter belt, singing “Let’s do the Time Warp Again.”
As Sen. Care rightly pointed out in response to Sen. Raggio, laws already exist to allow the arrest of anyone displaying a sign which is truly obscene, or which solicits murder or mayhem. Nor should anyone sleep comfortably knowing that Sen. Raggio believes he and other politicians should get to decide which of our political expressions are “acceptable,” and which “advocate terrorism.” King George’s men believed that in 1775. At considerable effort and expense, they were set straight.
Though some wags will reply, “Gee, you’d never know it,” Mr. Jerbic and Mr. Henry surely know prostitution is still illegal in Clark County. If they care to begin enforcing that law, they can advise police to arrest anyone carrying a sign offering “sex with Susie” as a commercial venture today or tomorrow, with or without Sen. Care’s SB13. Heck, they could start by going through the Yellow Pages.
But the most appalling thing about this tax-funded anti-free-speech chorus was their willingness to haul out arguments that have already been thoroughly considered and definitively thrown out by the U.S. Court of Appeals for the 9th Circuit, for all the world like necromancers digging up the pet cemetery and trying to re-sell the senators a dumpster full of dead Fluffies.
“There is no question the court has ruled the sidewalks are a public forum,” says attorney Lichtenstein, notwithstanding the private ownership of the land underneath, which the court ruled to be “not dispository.”
The Nevada Resort Association “seems to be willfully blind” to the court rulings in the Fremont Street and Venetian sidewalk cases, adds the ACLU’s Gary Peck.
Up till now, he’s been willing to accept the assurances of casino management that every recurring violation was the result of some dim-witted security guard not getting the message, Mr. Peck said this week. But those actions can now be seen to be “consistent with this testimony,” making it unlikely Ms. Baumgartner merely misspoke, he says.
As high-profile as those cases were, it’s “hard to believe” the NRA, its member casinos or its lobbyist remain unaware that the court threw out their “taking” argument -- along with the contention of the Fremont Street Experience LLC that their “exclusive advertising agreements” give them some right to restrict the content of signs displayed in that public forum, Mr. Peck says.
“The court specifically rejected that argument,” Mr. Peck said this week. “Their hubris astounds me.”
“I’d rather be litigating new issues,” Mr. Lichtenstein says. But if need be, he said, the ACLU will go back to court.
“The difference this time,” Mr. Lichtenstein explained, “is that we’d no longer be debating” the takings argument, the sidewalks-are-private-property argument, or the exclusive-advertising-contract argument. “That’s all been decided,” he said. “That’s all settled law. This time, the courts would be deciding whether they’re in contempt.”
And contempt is precisely what this chorus of sign-banners are displaying -- brazenly enacting the same unconstitutional ordinances over and over again, brazenly pumping in the formaldehyde and presenting the same old rejected arguments again and again, as though the lawmakers in Carson City are children or fools.