Court boots ACLU's plaza suit

The Salt Lake Tribune/May 4, 2004
By Heather May

Salt Lake City leaders made a "rational" decision when they sold the Main Street Plaza's public-access easement to the LDS Church for $4.5 million and 4.5 acres on the west side, U.S. District Judge Dale Kimball ruled Monday.

In dismissing the latest plaza lawsuit, the federal judge said the American Civil Liberties Union failed to prove the city violated the First Amendment's prohibitions against restricting speech or endorsing religion when it sold the easement. The ruling allows the church to keep its ban of behavior and speech it deems offensive on the property.

Kimball noted the city followed an appellate court suggestion to eliminate the easement. "[W]hen the city merely elected one of two choices presented by the 10th Circuit [Court of Appeals], it can hardly be said that the reason for its decision was to promote or endorse the LDS Church," he wrote in the 82-page ruling.

The judge, who is LDS, repeatedly referred to the controversy as "divisive," "bitter" and "contentious."

Kimball's ruling felt like déjÆ vu to the ACLU, which sued the city on behalf of five plaintiffs and figured it would lose at district court, just as it did in its first plaza suit. And, just like last time, it hopes to win at the Denver-based appellate court.

"I can't say that we're surprised, but we're disappointed," said Dani Eyer, executive director of the ACLU's Utah chapter, noting she expects to appeal. "The Court of Appeals will have the final word."

One of the plaintiffs, Lee Siegel, was more forceful: "I did not expect a ruling in favor of freedom of speech and fundamental constitutional rights from any federal judge who is a product of Utah and its theocracy, which suffers from a severe and unhealthy allergy to dissent."

The ACLU previously sued the city over speech restrictions on the plaza. The 10th Circuit said the city had to eliminate the easement or allow free speech on the plaza.

"The church is gratified that the district court has ruled in its favor," LDS Church attorney Alan Sullivan said in a statement. The church had joined the lawsuit and, along with the city, had asked the court to dismiss the case. "We hope all the controversy can now be put behind us."

Mayor Rocky Anderson, who is a member of the ACLU, said he hopes the organization will back off.

"I'm very pleased and I hope that the people who make these decisions on behalf of the ACLU will take a serious look at this thorough, well-reasoned opinion and put this matter to an end," Anderson said.

Kimball, who rejected every claim made by the ACLU, also spurned the organization's call for a preliminary injunction, which would have lifted the plaza's speech ban. The judge said the ACLU didn't prove it would suffer "irreparable harm" without the injunction, noting that there are public sidewalks near the plaza where people can protest.

He called the debate about whether demonstrations can occur on the plaza "largely academic." But it has been important to the ACLU's national office, which took over the case from the Utah chapter.

Kimball said the public and church would suffer more harm if free speech was again allowed on the plaza. It would undermine the democratic process, voiding a decision by the City Council. And it would ruin the church's plans to make the plaza peaceful. Kimball predicted the plaza would "become a scene of turmoil, and the church will not have control of its property, for which it paid millions of dollars."

The ACLU essentially argued that the land-for-easement deal violated the Constitution in two ways:

First, that the plaza remained a public sidewalk -- even without the easement -- making the speech limits unconstitutional.

Second, that the city pandered to and was pressured by the LDS Church to eliminate the easement, disregarding the public's interest.

But Kimball said without the easement the plaza is private property and "beyond the reach of the First Amendment." He compared it to the church's Temple Square, where people are invited to enjoy the grounds, but can be booted for any reason. He noted that the plaza looks different from public sidewalks.

The judge also said that even if city leaders wanted to pacify church leaders, they still gained secular benefits for the city: land and money to build a Glendale community center. Such dual motivations are not unconstitutional, he said.

Billionaire Jon Huntsman, who helped gain those secular benefits by raising money from the church and other donors, was delighted by the ruling.

"This case was wrong from the beginning and never should have been filed," he said. "It's always a privilege to know that justice prevails."

Plazagoers enjoying the sunshine Monday afternoon agreed.

"The ACLU has no right to gripe," said Salt Lake City resident Richard Duncan, who says he walks through the area twice a day to catch a bus.

"It's private property. Let's leave it that way and find some more important things to worry about."

Said a woman visiting the plaza: "I hope this doesn't get [the street preachers] going again."

One of those preachers, Lonnie Pursifull, called the ACLU's loss good news, even though he also wants the plaza to be considered public property.

He pledged to pursue his own legal claims, including allegations the church exerts undue control over city streets beyond the plaza.

"We have a whole other case that's a whole lot better," he said.

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