Venetian sidewalk ruled open to union

By Steve Kanigher

Friday, July 13, 2001 | 11:24 a.m.

The Culinary Union emerged victorious when a federal appellate court ruled that individuals can picket along the Venetian hotel-casino's privately owned sidewalk because it is a public thoroughfare.

The 2-1 ruling Thursday by the 9th U.S. Circuit Court of Appeals in San Francisco upheld the initial decision made by U.S. District Judge Philip Pro in Las Vegas in 1999. Pro had denied the Venetian's request for an injunction against union picketers, with the hotel arguing that the sidewalk was private property.

The federal ruling conflicts with a decision by the Nevada Supreme Court earlier this year that held that the Mirage and Treasure Island, which are across Las Vegas Boulevard from the Venetian, could restrict people from handing out erotic handbills on the sidewalk in front of the two hotel-casinos.

The Nevada court said, "We conclude that private property does not lose its private nature because it is open to the public."

The Venetian case, which is now before the federal appeals court, had been argued a year ago in a special hearing in Reno and since then both sides submitted additional written arguments.

In upholding Pro the 9th Circuit ruled that because the resort's sidewalk was connected to public sidewalks along the Strip "we conclude that the Venetian's sidewalk constitutes a public forum subject to the protections of the First Amendment."

D. Taylor, staff director for Culinary Local 226, said the union that represents casino workers was "ecstatic" over the latest decision.

"It upholds our contention that free speech and the First Amendment shouldn't be determined by the owner of the Venetian, and the discriminatory practices they wanted to enforce go against the grain with what America is all about," Taylor said. "The idea that they can pick and choose who is on their sidewalk we find abhorrent to what America stands for."

The Venetian, owned by Sheldon Adelson, has not allowed any union collective bargaining at its property since its opening in May 1999.

"We have not had a chance to review the ruling and therefore cannot comment at this time," Venetian spokesman Kurt Ouchida said.

Among the legal options available to the Venetian would be an appeal to an 11-member panel of the 9th Circuit, which has 28 judges, or an appeal to the U.S. Supreme Court.

The sidewalk first became an issue when a traffic study determined that Las Vegas Boulevard needed to be widened in front of what was to be the Venetian. In exchange for removing the public sidewalk that was there, the Clark County Commission allowed the Venetian to construct a private sidewalk on its property as long as it could be accessed by the public.

That provision was included in a January 1999 agreement the resort made with the Nevada Department of Transportation, which maintains Las Vegas Boulevard as a state highway.

The Culinary Union turned the sidewalk into a legal issue when it staged a March 1, 1999, protest that drew 1,300 picketers in front of the resort two months before it opened. The informational picket was organized to protest Adelson's anti-union positions.

The Venetian reacted by calling Metro Police, demanding that the picketers be removed as trespassers. But Metro declined to issue citations on the advice of Clark County District Attorney Stewart Bell, who opined that the resort's sidewalk constituted a public forum.

"My legal research was that it was a quasi-public sidewalk," Bell said. "It was always intended as a place for the public to walk and therefore serves as a public forum."

Three days after the protest, the Venetian filed a federal lawsuit seeking an injunction against the union. Named as co-defendants with the Culinary Union were Bell, Metro Police, Clark County and Bartenders Union Local 165.

The Nevada chapter of the American Civil Liberties Union, which intervened in the case in support of the union, criticized Bell for declining to take a position on the dispute in litigation. But Bell said that as a member of the county's executive branch "it's not our business what the law should be."

"We're just trying to enforce the law," Bell said. "If they (union pickets) cannot walk there, we would arrest them, but if they can walk there, we won't."

Had Pro ruled in favor of the Venetian, Bell said he would have been obligated to approve trespass citations for the picketers. As it turned out, Bell said, "our opinion that it was a public forum was affirmed by Judge Pro, whose opinion was affirmed by the 9th Circuit so I think that settles it."

The 9th Circuit majority decision, authored by Judge Proctor Hug Jr., was supported by Chief Justice Mary Schroeder.

"Even if the Venetian were to close its doors or to be converted into a members-only club or some other non-public enterprise, members of the public would still have the recorded right to pass across the Venetian property along Las Vegas Boulevard and to express themselves as they do so with the same freedom as on any public sidewalk," Hug wrote.

Judge Melvin Brunetti, in his dissent, argued that the resort's sidewalk does not automatically carry constitutional protections simply because it is open to the public.

"The county and state should not be given by this court property rights that it clearly bargained away," Brunetti wrote.

The Culinary Union holds informational pickets three to four times a week in front of the Venetian, usually involving six to eight picketers.

Michael Anderson, a Boston attorney who handled the appeal on behalf of the union, said the ruling was more about property rights than it was about the First Amendment but was still a major victory for organized labor.

"It's extremely important from a union perspective because one of the most important issues is the union's ability to get access to disseminate a message that hostile corporations don't want to hear," Anderson said. "What the Venetian wanted to do was to pull off a land grab and make it so that there would be no speech on their property that they didn't like."

In its majority ruling, the 9th Circuit cited its 1998 decision that granted a Las Vegas company First Amendment protection to disseminate adult entertainment handbills on sidewalks along the Strip. In that case, S.O.C. Inc. v. Clark County, the appellate court determined that "the public streets and sidewalks located within the Las Vegas Resort District" are public forums.

Gary Peck, executive director of the state ACLU, and ACLU attorney Allen Lichtenstein both said they believe the latest 9th Circuit ruling will bolster the First Amendment protections for those who disseminate the controversial handbills. Among their contents are advertisements for escort services, many of which Metro Police believe are fronts for illegal prostitution.

"If it looks, smells and tastes like a public sidewalk, that means it should be treated as a public forum," Lichtenstein said.

Sun reporters

Cy Ryan and Jace Radke contributed to this report.