Have you ever been innocently reading something in the newspaper or a magazine and suddenly see something you didn't know, causing you to stand and shout "HOLY SHIT! IS THAT TRUE?!"

It happened to me today, and what I've learned has greatly effected the way that I am going to be doing my job from now on.

This is going to be a long post, so if you need to tinkle, I suggest you do it now.

I was reading City Life, which is an alternative newspaper here in Sin City. There was an article about a PeTA protest in front of the MGM. PeTA, in their infinite wisdom decided to protest a circus that was happening at the Orleans, in front of the MGM. They aren't anywhere near each other, and they aren't owned by the same group. But PeTA's incompetence isn't what's interesting here. What is interesting is the fact that MGM security came out and told the protesters to get lost, as MGM owned the sidewalk.

The article then goes on to mention 9th Circut Court rulings that contradicted MGM's argument.

Background:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Under Amendment One of the US Constitution, we as members of the press have a right to be on a public sidewalk or street, and because of that right, we cannot be moved or ordered to leave by police, or anyone acting under a color of authority.

Of course if there is a good reason, for instance a crime scene, we can be restricted on where we can go. But that same restriction must also be made to other members of the public. Unfortunately most states allow this restriction to expand to a 'public safety' issue - i.e. we can be booted if it's 'for our own good' to keep us alive. Debating this is for another day though.

Private property is another matter. The first amendment does not apply to private organizations or individuals, just the government. So if I go into a mall because there was a shooting, the mall property owners can expel me off their property. Some states, most notably California have laws that override that, since while a mall is private property, being as it's open to the public the media cannot be expelled.

Here in Las Vegas, the five mile stretch of Las Vegas Blvd., between Sahara and I-215 is commonly referred to as 'The Strip.' This is where most of the major resort casinos are located. The Strip is not located in the City of Las Vegas, but is actually in unincorporated Clark County.

Most of the casinos also have their own quasi-police force which tend to have unlimited powers while on their properties.

Some of the Strip casinos, in their contracts with the county, have demolished the public sidewalks and built their own in order to have a theme. For instance, Treasure Island Casino has wooden planks as their sidewalk.

Meat and Potatoes:

When the Venetian was built, it was one of the casinos that got permission to demolish the county owned sidewalk (apparently for the purpose of adding a traffic lane to assist vehicles in entering the casino) and built a private one on their property. Either during or after the construction, their was a labor dispute.

The labor union got a permit from the county for a protest and did so on the sidewalk outside of the Venetian. A lawsuit was soon after filed(PDF) by the Venetian to attempt to stop the protesters, since, in the Venetian's opinion, the sidewalk was not a public forum, being as it is on private property.

The 9th Circuit Court of Appeals disagreed. The technicalities of this case are complex, and talk a lot about the contract that the Venetian had with the county, but the gist is that since the Venetian has allowed unfettered access to their sidewalk by the public (in accordance with their agreement with Clark County), that is indeed a public forum. The court also ruled that since the private sidewalk was replacing a public sidewalk, it still carried over the same characteristics of said sidewalk:

"Given the historically public character of the predecessor's sidewalk, the replacement sidewalk's current public use, its similarity to and interconnection with Las Vegas' network of public sidewalks, and its dedication to public use under the Venetian's 1999 Agreement with the Department, we conclude that the Venetian's sidewalk constitutes a public forum subject to the protections of the First Amendment. Accordingly, we affirm the judgment of the district court."

Relevant article from the Las Vegas Sun

So what does this mean for us (the media)?

Quite simply, it means that regardless of the casino police's insistence to the otherwise, no casino can lawfully expel us from the sidewalk, as our presence is protected by the first amendment.

There are several casinos on the Strip which own the sidewalk, and one of the problems is that there is no notification of this fact. So when security comes out and states that they own the sidewalk and demand you leave, what do you do? Now, with this information, ownership of the sidewalks is irrelevant.

Not that this fact stops the casino thugs and METRO from violating free speech...

Downtown Restrictions

The Freemont Street Experience (FSE) is a three block area of Freemont Street that was turned into a pedestrian mall to help revitalize downtown Las Vegas a few years ago. The area is apparently owned by a corporation set up by the casinos which all share entrances on the FSE.

I've done live shots and regular shoots there before where I have had FSE security come up and ask if I have management's permission to be there. Before I always lied and told them yes, even if I didn't. They didn't seem to really care, since they just took my word for it and biked away.

It turns out that the 9th Circuit made a similar ruling (in reference to the Venetian case) regarding FSE in 2003.

In 1997, the ACLU held a rally on FSE protesting ordinances passed by the Las Vegas City Council which prohibited the distribution of literature, picketing, protesting, etc. on the FSE. METRO and LV City Marshals ordered the protest to be disbursed and a lawsuit was filed against the city and the FSE holding corporation (FSELLC) that owns the FSE.

On April 24, 1998, the US District Court for Nevada issued a memorandum order declaring that the Fremont Street Experience was a nonpublic forum. (American Civil Liberties Union v. City of Las Vegas). The basis for this determination was the fact that the City had created the Fremont Street Experience for the principal purpose of stimulating economic growth, not for the purpose of promoting expression; that great expense had been incurred in the transformation; and that the textured pavement and canopy distinguished the Fremont Street Experience from surrounding
streets and sidewalks.

This was one of the factors that led the courts to decide the way they did in the Venetian case, as the private Venetian sidewalk was connected to, and virtually indistinguishable from the public sidewalks.

The district court's decision was appealed and in 2003 the 9th Circuit overturned the lower court's ruling and declared that FSE was a public forum(PDF).

Despite its expensive make-over, the Fremont Street Experience remains a public thoroughfare. Although cars are no longer permitted to drive down the length of the Fremont Street Experience, the agreement between FSELLC and the City requires that a route for pedestrians remain open at all times, limiting FSELLC’s discretion to manipulate the landscape.
Additionally, automotive traffic is permitted to cross the Fremont Street Experience in two places, and pedestrians cross at each intersection. The addition of entertainment to the Fremont Street Experience’s uses does not alter the fact that it remains a public thoroughfare and a shopping and gambling district.

Again, what this means for those of us in the media is that regardless of FSE security's insistence to the contrary, they CANNOT remove us from FSE. Incidentally we need to ask no ones permission before shooting on FSE or going live from FSE.

Conclusion:

It's not just a catchy phrase, but knowledge is power. Having court cases and laws to cite (as the infamous Terry Toller demonstrates) can stop over zealous police and security goons in their tracks.

Plus I know that at least a few Las Vegas photogs read this blog, which is why I am writing this on here. Hopefully they will spread the truth around their stations, allowing us to all stand up to the first amendment stomping power of the Nevada gaming industry.

Thank goodness the mobs aren't running the casinos anymore, otherwise I think I'd find myself in the middle of the desert next week.

((Relevant Court Cases))
Strip Sidewalks -- No. 00-15136, VENETIAN CASINO RESORT, L.L.C., vs. (LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS;) CULINARY WORKERS UNION, LOCAL 226
Heard by 9th Circuit Court of Appeals, San Francisco, CA. July 12, 2001

FSE -- No. 01-15958, AMERICAN CIVIL LIBERTIES UNION OF NEVADA vs. CITY OF LAS VEGAS
Heard by 9th Circuit Court of Appeals, San Francisco, CA, July 2, 2003

Both decisions are final, as the full 9th Circuit declined to hear an appeal, and it appears that it was either not appealed to, or the SCOTUS declined to hear either case.