"You better stop yapping, or you're going to be charged with inciting a riot," one of the officers whispered in Burnett's ear. "I didn't do anything wrong!" the 19-year-old replied, only to feel his arms shoved closer to the breaking point.  But he had. By walking up and down the Strip on the Fourth of July with signs protesting corporate America, Burnett violated the decades-old, unwritten law of Clark County: Freely express yourself, just don't do it in public, especially not in front of a Strip casino. That can land you in jail. That's just the way it is, how it has always been. Casinos rule. Little people are to be seen, not heard. 

It was just four years ago, for instance, that a group trying to collect signatures in support of medical marijuana on the Fremont Street Experience were "detained" by Las Vegas police who threatened them with arrest if they ever returned. That same year, a group of five men handing out religious pamphlets on Fremont Street were arrested by police, strip searched, and thrown in jail for up to 48 hours. Their charge? Blocking a sidewalk. All charges were later dismissed. And the list goes on: Animal rights activists were dealt with brutally by police this summer when they attempted to protest a meeting of a large corporation in a Strip hotel; and members of the Shundahai Network, a group opposed to nuclear weapons testing, were harassed on Fremont Street.

Just a few weeks after Burnett was tackled and handcuffed, a group of homeless advocates first marched in front of the MGM Grand, then moved to the Fremont Street Experience. Each time they were met with defiant security guards who wanted to push them away, and cops who were unsure about what to do. But no one was ever arrested or charged. The American Civil Liberties Union of Nevada thinks that's significant. They also believe it's the result of three major court rulings this year that giving protesters a new lease on free speech on the streets of Las Vegas. One of them dealt with the leafleting on the Fremont Street Experience, and another with hand billing on the Strip. But the decidedly biggest boost to free-speech advocates came from a federal court decision July 12 on a case involving the Venetian hotel-casino and its owner, Sheldon Adelson. 

Taken together, you might wonder if Clark County is in the midst of a kind of free-speech Renaissance. Or is this, too, just more Vegas sleight of hand? Maybe Alan Dershowitz knows. Arguably one of the most famous attorneys in the country, he became part of the Venetian lawsuit three weeks ago. Though a federal court ruled against the Venetian in July, the casino filed a petition for a rehearing a few weeks ago. But before filing this in the "too good to be true" box, understand one thing: Dershowitz, a Harvard Law School professor and former ACLU National Board member whose name is virtually synonymous with the First Amendment, isn't siding with the ACLU. He's been hired by Sheldon Adelson to defend his right to kick picketers and protesters, along with any other Tom, Dick or Jane, off his sidewalk. Still think we're on the verge of a Renaissance? 

A RUDE AWAKENING 

When the Mob ran Vegas, it was their way or the highway--or a hastily dug shallow grave in the desert. When they told picketers to move off the sidewalk, picketers moved--not that many folks would be daring enough to protest a Mob-run casino. More recently, though, insolent protesters on the steps of a casino would have been dealt with swiftly, if not physically, by corporate-hired goons and Las Vegas police. But this is 2001, and times may just be a-changing. Case in point: Three weeks ago, a group of the homeless and their advocates who called on casinos to do their fair share for Las Vegas were ready for a different kind of battle--they marched and chanted with signs in front of the MGM. 

As soon as MGM security guards and Las Vegas police told them to move, ACLU attorney Allen Lichtenstein showed up with some heavy ammo--a July ruling by the 9th U.S. District Court of Appeals in San Francisco that made it very clear that even sidewalks owned by casinos are fair game for free speech. In other words, according to the federal court, Venetian owner Sheldon Adelson is not, in fact, God. And he cannot prevent people from protesting on "his" sidewalk. Chests deflated, biceps relaxed, the MGM's security guards, attorney and a vice president took the hint and left the marchers alone. The outcome would have been completely different, noted Gary Peck, ACLU executive director, if the federal court had done what most Nevada courts do, and sided with the casino. 

"The issues involved are profound," says Peck. "It revolved around the whole issue of whether or not the Venetian's sidewalks can be removed as a public forum and the First Amendment can be banned." 

CASINO WARLORD GETS MAD 

None of this might have happened had it not been for Adelson's refusal to hire union workers for his shiny new casino back in 1999. In response, some 1,300 Culinary Union workers got a permit and marched in front of Adelson's casino. It was organized chaos. Police stood in the 100-degree heat sweating and trying to figure out what to do as Adelson's security people tried to pressure them into hauling the protesters off to jail. Concrete barriers were placed in the street, just in case police agreed with the Venetian. But this was one of those rare moments when police didn't side with casino security. They let the marchers march. News crews taped and wrote about it. And hundreds of passing cars honked horns in allegiance with the workers. 

Infuriated, Adelson sued, naming District Attorney Stewart Bell, the police department and the Culinary Union as co-defendants. The ACLU of Nevada was not named, but they've been the only legal team willing to take the case on behalf of the public. Not even DA Bell was willing to face off with the great and powerful Venetian. In fact, Bell's office hasn't said word one about the case, refusing in court to argue on behalf of the marchers--or against the Venetian. The DA's office--supported by millions of taxpayer dollars--is officially on record that it doesn't care about free-speech rights when it comes to sidewalks in front of Adelson's Venetian. 

"Those attorneys, who are supposed to represent the general public, have been an embarrassment," said Peck. In court, Adelson's attorneys argued that the casino owner can do whatever he wants with the sidewalk, or the people who use it, because it's his. He owns it. Peck and Lichtenstein still recall (with astonishment) Adelson attorney Walter Dellinger iII's answer when a judge asked if the Venetian had the right to force anyone--short people, men with mullets, poorly dressed tourists, limpers and women--off the sidewalk? Barely pausing to consider, Dellinger answered yes.  Dellinger did not return a call for comment.

But William Coleman, one of Dellinger's law partners who is also working on the Venetian case, agrees entirely with Dellinger's line of thought. "Well, I mean, you can do that," Coleman replied when asked if the Venetian had the right to toss say, a midget into the street. "That doesn't mean there aren't other statutes, and you may have other statutes that say a private person can't treat a midget in a way different from the way that you may treat a non-midget." 

THE BIG GUY FALLS 

Sheldon Adelson can pretty much buy anything he wants in Las Vegas. Thankfully, the 9th Circuit Court is in San Francisco. And last month, that court nearly dealt him a knock-out blow when it ruled against him. "Property that is dedicated to public use is no longer truly private," the court wrote. "...by dedicating the property to public use, the owner has given over to the state or to the public generally one of the most essential sticks in the bundle of rights that are commonly characterized as property, the right to exclude others." Coleman says he "can't understand" the court's ruling, restating his position that the sidewalk "is private property." 

Lichtenstein and Peck shake their heads at Coleman's "tired" argument, saying that if the Venetian gets its way, the courts would be literally giving businesses the right to ignore the First Amendment--so long as they had the money to purchase that right.
"You'd basically have a situation where the government would have the right to deed away free speech on public sidewalks," says Peck. "And you'd have virtually thousands of public sidewalks that are no longer a public forum." 

BAD FREMONT STREET EXPERIENCES 

Peck, who holds a law degree from Stanford and is a former sociology professor with a Ph.D. from the University of North Carolina, points to two other major court decisions as a sign that the "bad old days" are fading away. One stemmed from a 1997 lawsuit filed by the ACLU against the Fremont Street Experience and city ordinances that allowed the Experience, a $70 million project built with $27 million from taxpayers, to ban leafletting and other forms of political speech on the street. 

Three years after the suit was filed, U.S. District Judge David Hagen issued an injunction that banned police and security guards from harassing people engaging in political speech. Did that change anything? A month later, four people collecting signatures for legalizing medical marijuana were detained and threatened by police. Then a few months later, the five men with religious materials were arrested. 

In October 1999, police and security guards on the Fremont Street Experience stopped a group from handing out pamphlets alleging police brutality. A month later, the same security guards refused to let members of the Shundahai Network, an anti-nuclear testing group, pass out leaflets asking people to "Join Us," saying that the phrase constituted solicitation, which is not allowed. 

With the injunction apparently not clear enough for Fremont Street Experience guards and attorneys to understand, the federal judge solidified his ruling in April of this year. As a sort of test, the homeless advocates--all 10 or so of them--marched on the street three weeks ago. And guess what? They were all promptly met and detained by security guards and Las Vegas police until Peck and Lichtenstein came and educated them about the law. Police officers on the scene said when they called the City Attorney's Office for advice, the attorneys there refused to offer any. 

Lichtenstein, a former communications professor, later received a cranky letter from a Fremont Street Experience attorney accusing the ACLU of engaging in "unethical behavior" because instead of going through Fremont Street Experience attorneys, Lichtenstein addressed security guards directly. 

Some things in Vegas will never change. 

IT'S ONLY A MIRAGE 

Aside from the Venetian and Fremont Street Experience rulings, Peck and Lichtenstein point to another one of their cases involving The Mirage as proof that times are, in fact, changing. The suit filed by The Mirage sought to restrict the distribution of sexually explicit handbills on sidewalks next to The Mirage and Treasure Island, both of which were controlled by Steve Wynn when the suit was filed in 1999. It's essentially the same argument made by Sheldon Adelson, that since the sidewalk is private, a casino can restrict whatever it wants. 

And in May of this year, the Nevada Supreme Court ruled, 5-1, with The Mirage that businesses cannot distribute handbills on The Mirage's sidewalk. But the ACLU considers the ruling a victory because only three judges--Cliff Young, Deborah Agosti and Nancy Becker--agreed that the sidewalks were not a public forum. The other two voting against the ACLU--Chief Justice Bill Maupin and Miriam Shearing--agreed with the ACLU that the sidewalks were a public forum; they just didn't like the fact that the handbills were of a "commercial" nature. And finally, Justice Bob Rose voted against The Mirage, saying without question that the sidewalks were public forums. The seventh justice, Myron Leavitt, recused himself from the case. 

So the way Lichtenstein and Peck see it, the vote was split: three for and three against free speech on privately owned sidewalks that are used as main thoroughfares. The 9th U.S. District Court decision in July against the Venetian only solidified their point. 

LONG WAY TO GO 

That Nevadans are still fighting for the right to freely express themselves in public might be odd to outsiders. But both Peck and Lichtenstein insist that, despite the financial ability of businessmen like Sheldon Adelson to keep a losing lawsuit alive for years, the First Amendment and other civil liberties are in much better shape here than they were just five years ago. 

"Four or five years ago, they would pass laws (in Nevada) abridging constitutional rights with impunity," says Lichtenstein. "Now, they think far more about it, because they know they're going to have to defend themselves in court, especially federal court." 

"If we were not here," Peck adds, "a lot of people would be silenced." 

Case in point: Chris Burnett. On Wednesday, five weeks after Burnett was cited for obstructing justice because he held a sign in front of his face to prevent police from snapping his picture, Lichtenstein and attorney JoNell Thomas, who is on the ACLU board, appeared on Burnett's behalf in Justice Court. 

But when they got there, none of the harassing officers were there. Neither were any of the Clark County prosecutors. The charge had been dismissed.

http://www.lasvegasweekly.com/2001_2/08_23/news_coverstory_streets.html