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The Venetian Hotel's Sidewalk

March 13, 2002

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 'rights' only makes sense as property rights." Last week, as usual, the US Supreme Court didn't make any sense.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.

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