THE SALT LAKE
The LDS Church is
free to kick malcontents, smokers and sunbathers off its Main
Street Plaza -- at least for now.
Tuesday, U.S. District Court Judge Ted Stewart rejected the
American Civil Liberties Union's constitutional challenge of
free speech restrictions on the block. Instead, he ruled on
all counts for the plaza's owner and seller, The Church of
Jesus Christ of Latter-day Saints and Salt Lake City.
"This raises serious concerns about the
plaintiffs' free speech rights and private property rights,"
Stewart said. "But in this case, we have a party that has paid
fair market value and expended considerable money to alter the
property. Free speech rights do not outweigh private property
ACLU attorney Stephen Clark
plans to appeal to the 10th U.S. Circuit Court in Denver.
"It's just not right that a treasured public asset like Main
Street can be sold out from under the people and given over to
one particular viewpoint," he said.
years ago, former Mayor Deedee Corradini and LDS Church
President Gordon B. Hinckley struck a deal to turn one block
of Salt Lake City's most historic street into a private
For $8.1 million, the
church could park cars below and plant flowers above. City
leaders insisted on 24-hour public access. But to cement the
agreement, they gave the church exclusive rights to
proselytize and to broadcast speeches and music through the
space. The church also could restrict smoking, skateboarding,
protests or any "illegal, offensive, indecent, obscene,
vulgar, lewd or disorderly speech, dress or conduct" on the
A year ago, the ACLU filed suit
on behalf of the First Unitarian Church, Utahns for Fairness
and the National Organization for Women, claiming the rules
violate the Constitution's First, Fifth and 14th amendments.
The plaza, with cascading water and
shrubs and grass, opened in October. Planters are inscribed
with the church's name. Statues of early church leaders Joseph
Smith and Brigham Young overlook the block. And during the
holidays, multicultural nativity scenes dotted the place.
After a weekend spent reading reams of
case law and affidavits and listening to two hours of
arguments Tuesday, the judge took a 15-minute break, then read
a lengthy "oral ruling." He said the legal documents and
physical changes that followed the December 1998 announcement
stripped the street of its public status. The ACLU's clients,
he said, no longer have a free speech claim to the property.
If someone is expelled for another reason, the judge added,
that person might have a complaint.
"The restrictions are reasonable in light of the purpose for
which the property was purchased," Stewart said, noting that
he has avoided the plaza in anticipation of hearing the
Tuesday's arguments focused on
the plaza's walkways -- whether they are sidewalks and whether
they constitute a public forum.
ACLU's Clark insisted the paved walkways retain their status
as a base for protest and dissent -- despite the devotional
trappings around them.
"What matters is
that there are still passageways that serve as a public
thoroughfare," he said. "There's one way to get from North to
South Temple on Main Street and that's on these sidewalks
through the plaza. That was not happenstance."
But LDS Church attorney Von Keetch
argued Main Street between North Temple and South Temple never
was a busy public forum. He said 15 years of church records
show only eight "incidents." And in the six years before the
plaza opened, no groups had petitioned Salt Lake City to
a problem with calling these constitutional sidewalks," he
said. "Practically, there's a problem, too. You can't walk in
a straight line."
offered 2.5 miles of public sidewalks and 433,000 square feet
of space around the church's four-block campus as a place for
the "hurly-burly of the marketplace."
"The church never would have done this deal if it thought it
would lose control of the property," he said. "Owners get to
do things and say things on their own property that others
don't get to."
And City Attorney Roger
Cutler chimed in. "There are alternate places for these people
to express their views," he said. "There's no reason why we
have to accommodate a free speech forum when it's so counter
to the design and function and purpose of the place. It would
be destructive of the whole scheme to which the city and the
church have agreed."
The plaintiffs were disappointed. "I
didn't think it would be this easy for our City Council to
give away our First Amendment rights," Jared Wood of Utahns
for Fairness said.
Clark has 10 days
after Stewart's ruling is filed to appeal. "It's an important
issue locally. It's an important issue nationally," he said.
"We're seeing the privatization of public spaces. Cities don't
want to deal with the hurly-burly, the tumult of the
marketplace. That's an issue worth taking to the Supreme Court
Cutler was disappointed
the fight might not end with Stewart's ruling.
"We'd prefer to spend our resources
elsewhere," he said. "But given how decisively the court ruled
and how quickly, I think an appeal will reach the same
courtesy Salt Lake Tribune