By Sara Elizabeth Payne
The 10th Circuit U.S. Court of Appeals? decision this week to allow The Church of Jesus Christ of Latter-day Saints to restrict speech in its Main Street Plaza ends a six-year battle that questioned what is considered public and private domain.
The court opinion explained that the plaintiffs, Utah Gospel Mission, First Unitarian Church of Salt Lake City, Utah National Organization for Women and Lee Siegel, failed to allege any infringement of constitutional rights and that the Church of Jesus Christ can place limits on speech and activity in the plaza.
In 2003, the plaintiffs filed a lawsuit contending Salt Lake City could not allow the Church of Jesus Christ to restrict forms of speech in the downtown plaza located between the Church?s temple and its headquarters buildings. The plaintiffs also said that Salt Lake City?s sale of the land unduly favored the LDS Church.
The defendants, the Church of Jesus Christ, Salt Lake City and its Mayor Rocky Anderson, contended that the Church could regulate activity on the Plaza because the Church exclusively owned and maintained the property.
Before 2003, the Church of Jesus Christ owned the land, but Salt Lake City retained an easement of public access, which meant the city had to ensure free expression of views on the plaza. As a government entity, the city could restrict free speech only if it had sufficient justification, but at the time, the city allowed the Church of Jesus Christ to restrict what the Church called ?disruptive behavior? on the property. In 2002, the ACLU and other plaintiffs prevailed on a related issue before the Tenth Circuit, which held that the public easement guaranteed the right to free speech in the plaza.
The court?s opinion in that case stated that either the Church of Jesus Christ needed to allow free speech on the plaza or the city would have to give up the public access easement. Subsequently, the city sold the easement to the Church for $5 million.
In the case decided this week, the plaintiffs, represented by the ACLU, said the sale of the easement was a violation of the Establishment Clause of the Constitution, which requires states not to establish or favor a religion.
According to the court opinion, however, the Church?s payment for the easement, which was 10 times larger than the easement?s value, demonstrated that the city did not have religious motives. As part of the deal, the Church gave the city a two-acre plot of land in a low-income neighborhood to build a recreational center, a move the ACLU said was meant to cover up improper motives.
John Fee, a BYU law professor, said he was surprised the plaintiffs brought the second lawsuit because there was very little merit to the case. He said the Church, after the first ruling, took all the necessary, lawful steps to gain full ownership of the property and the property rights, even giving more than the easement?s value.
?The church has always been very generous,? Fee said. ?It?s tied up in wanting to resolve the dispute and wanting to donate property for a charitable purpose.?
Fee added that the LDS Church is advancing its own interests by restricting speech, but that doesn?t involve the city.
?Moreover,? the court opinion stated, ?the fact that some religious purpose may be advanced by the sale does not constitute an establishment of religion given the secular purposes advanced here.?
The plaintiffs argued, too, that a public place should not be sold to a private entity, but if it is sold, that it should still remain a public forum for a wide expression of viewpoints. The three-judge panel disagreed, saying the argument was ?without merit.?
The opinion cited several cases that dealt with private property and public access.
In Marsh v. Alabama, decided in 1946, the U.S. Supreme Court said although a private corporation owned a town, the fact that it functioned as a normal town prevented the company from restricting free speech.
One argument made by the plaintiffs was that the plaza?s sidewalks still function and still run like normal city sidewalks. The physical characteristics, they argued, must also change to denote private property if the Church were to place restrictions on the property.
But the court said signs posted at the entrance and physical characteristics indicate that the Plaza is privately owned. It added that ?the Plaza is an open space clearly delineated from the surrounding streets and sidewalks.? Thus, the Marsh precedent didn?t apply.
The only stipulation the city placed on the sale of the plaza itself in 1999 was that it be a landscaped space. While the city can retain the property if the Church fails to keep it landscaped, it is allowed to limit any activity, including fencing it off and denying public access altogether.
One issue of concern, said Fee, is the disappearance of public areas downtown. Now that downtown areas such as shopping malls, streets and parks are being privatized, there may be limited areas of free expression and speech.
?I think the court?s decision was correct here,? Fee said, ?but I think as a people we need to find a way to ensure that we still have public forums where the public goes and gathers and where freedoms of speech of all types, even if we find it offensive, is allowed.?
The Church?s stated purpose for the plaza is for an ecclesiastical park. Soliciting, begging, protesting, leafleting, smoking, skateboarding and other activities deemed disruptive are prohibited in the plaza.
?Having spent over $8 million to acquire the Plaza, it is not surprising that the Church, like any other property owner, would take steps to preserve its quiet enjoyment,? the Tenth Circuit stated.