The LDS Church is free to kick malcontents, smokers and sunbathers off its Main Street Plaza -- at least for now.
    On 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 rights."
    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.
    Two 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 religious garden.
    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 plaza.
    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 lawsuit.
    Tuesday's arguments focused on the plaza's walkways -- whether they are sidewalks and whether they constitute a public forum.
    The 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 protest there.
    "Definitionally, there's a problem with calling these constitutional sidewalks," he said. "Practically, there's a problem, too. You can't walk in a straight line."
    Instead, Keetch 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."
    Stewart 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 if necessary."
    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 conclusion."
courtesy Salt Lake Tribune

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