United States Court Of Appeals Holds City Ordinances Prohibiting Solicitation And Erection Of Tables In Downtown Area Unconstitutionally Restrict Free Speech

In American Civil Liberties Union v. City of Las Vegas, (— F.3d —, 2006 WL 2988192, 9th Cir.(Nev.), Oct. 20, 2006), the United States Court of Appeals addressed the issue of whether city ordinances which prohibit solicitation and the erection of tables in a five block area of the city’s downtown district unconstitutionally restrict free speech. The Court of Appeals held that the bar on solicitation is facially unconstitutional because it impermissibly restricts First Amendment activity and the table restriction is unconstitutional to the extent that it regulates the use of tables to facilitate the dissemination of protected speech.

Facts

In an effort to revitalize its downtown district, the City of Las Vegas (“City”) closed off a five-block area to automotive traffic and contracted with a private company to transform the area into a pedestrian-friendly zone. A canopy of lights was installed over certain portions of the street. The area, known as the Freemont Street Experience (“Freemont”) is also home to daily entertainment events.

The City adopted ordinances to restrict activities in the Freemont area, one of which prohibits solicitation. Solicitation is defined as “to ask, beg, solicit, or plead, whether orally, or in a written or printed manner, for the purpose of obtaining money, charity business, or patronage . . . for oneself or another person or organization.” The ordinance bars the distribution of leaflets that solicit money or donations regardless of whether the leaflets request immediate or future donations. Another ordinance prohibits leafleting, vending, or placing tables in Freemont. This ordinance, however, has an exemption for labor-related activities.

In 2000, three members of the American Civil Liberties Union (ACLU) set up a table in Freemont, hung a banner on the table, placed petitions on the table, and handed out flyers. The ACLU members were required to remove the table after security officers notified them of the ordinance which prohibits the erection of tables. The ACLU filed a lawsuit against the City alleging the ordinances violate equal protection laws and unconstitutionally restrict free speech rights. The trial court ultimately found that the solicitation ban was a valid time, place, and manner restriction on First Amendment activities, but that the table ordinance violated the ACLU’s equal protection rights.

Decision

The Court of Appeals held that the trial court erred in finding that the City’s bar on solicitation within Freemont does not unconstitutionally restrict free speech rights. The Court stated, “It is beyond dispute that solicitation is a form of expression entitled to the same constitutional protections as traditional speech.” The Court held that Freemont, despite its transformation, is a traditional public forum. Regulation of speech in a traditional public forum is disfavored. However, all restrictions of speech in such a forum are not impermissible. The government may place reasonable time, place, and manner restrictions on speech in traditional public forums, but such restrictions must be “content-neutral and narrowly tailored to serve a significant government interest, leaving open ample alternative channels of expression.”

However, a content-based restriction of speech is presumptively invalid. The Court noted that the ordinance permits the distribution of handbills that simply offer information and/or a contact number, however, “handbills requesting that the recipient ‘join us’ or soliciting future donations are prohibited.” The determination of whether the solicitation ordinance is content-based “hinges on whether it discriminates based on content on its face.” The Court held that the solicitation ordinance does so discriminate because handbills containing certain information may be distributed while those containing other information may not. Furthermore, a City official must examine the content of a handbill before deciding if it may be distributed. An ordinance is content-based if a government official must read the printed message to determine if the message is exempt from the ordinance.

The Court noted the solicitation ordinance prohibits even the peaceful distribution of handbills requesting future support of a charitable organization. “Because the ordinance does not represent the least restrictive means of achieving the City’s stated goal of protecting potential visitors from aggressive or intrusive solicitation, eliminating obstructions to the free movement of pedestrians, and protecting the local merchant economy, it is not narrowly tailored to achieve a compelling government interest.” Accordingly, the Court held that the ordinance is a facially unconstitutional regulation of free speech.

The Court also held that the erection of tables in a public forum is constitutionally protected activity to the extent that the tables are used to disseminate First Amendment speech. Therefore, any distinctions that the City’s ordinance draws must be finely tailored to serve City’s substantial interests. The tabling ordinance contains an exception for labor-related speech. The Court held that this exception renders the tabling ordinance unconstitutional under the Equal Protection Clause of the Fourteenth Amendment because it gives preferential treatment to the expression of views on one topic but restricts the use of tables to disseminate information on other topics.

The Court of Appeals instructed the trial court to issue injunctions enjoining the City from enforcing the ordinances.

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