The Venetian Hotel's Sidewalk

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Can
there be a right to freedom of speech without that right being firmly
based on property rights? Murray Rothbard asked and answered that
question simply and succinctly in Power
and Market
. "Where does a man have this right? He certainly
does not have it on property on which he is trespassing. In short,
he has this right only either on his own property or on the property
of someone who has agreed, as a gift or in rental contract, to allow
him on the premises." To bad, the Justices of the US Supreme
Court can't figure that out.

Last
week, the court declined without comment to consider The Venetian
Resort Hotel and Casino's appeal of the 9th U.S. Circuit
Court of Appeals July 2001 ruling that the sidewalk in front of
the Las Vegas resort constitutes a public forum where individuals
have the right to exercise their First Amendment freedoms, despite
the sidewalk being private property, owned by The Venetian.

When
Nevada's Department of Transportation (NDOT) widened Las Vegas Boulevard
(the Strip) in the early 1990s, it tore up the public sidewalk in
front of the Venetian to create another lane for cars. The Resort
then constructed a sidewalk on its own property.

In
March 1999, while the hotel was still under construction, 1,300
Culinary Union members formed a picket line on the sidewalk in front
of the property protesting The Venetian owner Sheldon Adelson's
planned nonunion opening. The hotel demanded that police arrest
the protestors for trespassing. But Clark County District Attorney
Stewart Bell instructed the police to refuse. The Venetian then
sued Clark County and the Las Vegas Metropolitan Police Department
along with the Culinary and Bartenders Unions seeking a court order
declaring that the resort's "privately owned and maintained
pedestrian walkway does not constitute a public forum." The
American Civil Liberties Union (ACLU) of Nevada intervened in the
case on behalf of the unions.

In
US District Court, Judge Philip Pro ruled that the sidewalk functioned
as a public thoroughfare and thus is a public forum, despite being
privately owned. In his ruling Pro wrote that, "since the sidewalk
performs an essential public function, the Venetian does not have
the right to exclude individuals from the sidewalk…."

The
case then went to the three-judge panel of the 9th Circuit
Court of Appeals where The Venetian lost 2-1. Dissenting Judge Melvin
Brunetti noted that when NDOT added a lane to the Strip it completely
surrendered its right of way and thus "bargained away"
any rights the state (or county) might have claimed.

Even
staunch freedom of speech advocate Justice Hugo Black believed that
freedom of speech was grounded in private property rights. "We
have a system of property," Black wrote, "which means
that a man does not have a right to do anything he wants anywhere
he wants to do it. For instance, I would feel a little badly if
someone were to try to come into my house and tell me that he had
a constitutional right to come in there because he wanted to make
a speech against the Supreme Court. I realize the freedom of people
to make a speech against the Supreme Court, but I do not want him
to make it in my house."

Upon
learning of the Venetian verdict, ACLU attorney Allen Lichtenstein
said, "It's pretty clear, now that the dust has settled, that
these sidewalks are a public forum for all free speech activities,
whether the land under any of these sidewalks is publicly or privately
owned."

What
is clear is that the court has seized The Venetian's private property.
There is no more important element to property rights than the ability
to exclude others. But now Culinary Union picketers, handbilling
porn distributors, and anyone else can crowd The Venetian's (or
any other business) sidewalks, impeding customers who wish to enter
their property.

Nearly
every business has enemies, and now with the Supreme Court's blessing,
those enemies can protest on any business's property. PETA can now
protest on the sidewalks in front of grocery stores and furriers.
MADD members will be camped out in front of bars and liquor stores.
Sierra Club members will link arms surrounding gas stations to keep
us from filing up with evil air polluting gasoline. And, the effect
on investment will likely be chilling. Entrepreneurs like Adelson
will think twice about making large capital investments (in his
case $1.5 billion) if property rights will not be protected.

Rothbard
wrote that, "the concept of u2018rights' only makes sense as property
rights." Last week, as usual, the US Supreme Court didn't make
any sense.

March
13, 2002

Doug
French [send him mail]
a student of Murray N. Rothbard's, is a banker in Henderson, NV.

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