The American Civil Liberties Union of Nevada (ACLU) is suing the City of Las Vegas and the Fremont Street Experience (FSE), on behalf of a Las Vegas street performer and two 18-year-olds. It claims that age restrictions to enter the tourist attraction, in place since July 12 on weekend nights, violate the First Amendment.
Since the City approved a special permit allowing the FSE to impose restrictions, no one younger than 21 has been able to enter the popular downtown pedestrian mall without a parent or guardian after 8 p.m. Fridays through Sundays. In addition, street performers are banned during those times. The special permit is good until Nov. 28.
According to the lawsuit, the FSE pedestrian mall is a “traditional public forum” where First Amendment rights fully apply. These include the rights to solicitation, expressive activity and performing arts. These rights cannot be restricted or regulated, the lawsuit says.
The lawsuit also attacks Chapter 11.68 of the Las Vegas Municipal Code, enacted in 1995, which authorizes the FSE to change the locations where people can perform, shut down the entire pedestrian mall to the general public, and sue those they say violated the regulations. This over-regulation of street performers, the plaintiffs argue, favors commercial speech over artistic and political speech, which violates the First Amendment.
Final Aired Grievance a Doozy
Finally, the lawsuit argues that the reason provided by the FSE for its unconstitutional special permit was fraudulent. The application approved by the city actually read “Festivus.” Avid Seinfeld fans will recognize that as a winter holiday made up by Jerry Stiller’s character on a 1997 episode. And, as the ACLU lawsuit notes, not once was Festivus advertised in any media or marketing materials, or an any physical sign on Fremont Street.
The plaintiffs seek an order voiding portions of the LVMC Chapter 11.68, as well as all actions taken by the city and FSE for violating the First Amendment. They also seek costs and attorney’s fees.
Real Reason for Restrictions
It wasn’t Festivus but an uptick in violent crime in the area that led the FSE and Las Vegas to impose its restrictions.
On June 19, 2022, a 16-year-old boy allegedly fatally shot one man and wounded another person under the electronic canopy. Then, on July 4, four days before the security measures were enacted, another man was shot in the buttocks. Last Aug. 4, a 30-year-old man was killed during what began as a fight between two men near an entertainment stage at Fremont and 3rd streets.
Police data confirms that violent crime at the attraction and on nearby streets was rising before the measures went into effect, with 45 aggravated assaults reported by early July 2022, compared with only 27 the year before.
Public or Private?
The new lawsuit comes down to whether the FSE can be considered a public or private area. Though the FSE has not publicly commented on the new lawsuit, it has repeatedly said in the past that its space is a private mall, not a public forum.
However, in a landmark 2003 case, the Ninth Circuit Court of Appeals disagreed.
“It may not look like a public street because of how the city and Fremont Street Experience treat it, but it’s a public street,” Christopher Peterson, the legal director of the ACLU of Nevada, told KSNV-TV last month. “And because it’s a public street, it’s where our First Amendment rights are strongest.”
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