Oh, there’s plenty of stuff going on to blog about today, readers! Lance Malone’s six-year sentence. (That’s one day for every $257 he accepted or passed along in bribes, versus our suggestion of a dollar a day, which would have been a sentence of 1,542 years!) Mayor Oscar Goodman’s joy at what appears to be a crack in the NBA’s heretofore strong stance against siting a team in a town that also provides sports gambling. Or the Wall Street Journal story announcing the FBI is involved in an investigation of Gov. Jim Gibbons‘ gift-laden relationship with a big donor, Warren Trepp.

But we did want to comment on a story in today’s Review-Journal before it slipped our minds. It seems that Morgan Baumgartner, a lobbyist for the Nevada Resort Association, testified that "sidewalks in front of hotel-casinos had been private property from which easements were granted to local government for use as sidewalks. The association views the bill [SB 13, by state Sen. Terry Care] as an infringement on their [sic] private property rights, she said, and a law broadening permitted uses could be considered a ‘taking’ of private property."

Well, no.

Perhaps Baumgartner is unfamiliar with the holding in the 1999 case of Venetian Casino Resort LLC v. Local Joint Executive Board of Las Vegas, et. al. In that case, U.S. District Court Judge Philip Pro ruled that even though the sidewalk outside the Venetian was built on private property, they still functioned as a public forum, and thus free speech was entitled to its greatest protection there. That means protesters, whether they be union members or street preachers, have every right to be there, regardless of whether the Venetian wants them there or not.

Now, the Venetian appealed the case to the Ninth Circuit Court of Appeals — which upheld the decision — as well as to the U.S. Supreme Court, which declined to hear the case. That means the law of the land, at least in the Ninth Circuit, is that "private" sidewalks outside casinos are public forums. And there is no "taking," involved. As Pro wrote:

"Private property rights are very important and should not be disregarded simply because a private owner performs a function that is sometimes performed by government. Nevertheless, if ever there was a case where the protections of the First Amendment to the United States Constitution should be applied to private property used for a particular function, this is the case."

And again:

"The sidewalk in front of the Venetian was previously public, serves as a thoroughfare along a main public road, and serves the needs of the general public. As such, it falls within a very limited exception to the general rule that private property is not subject to the First Amendment. Since the sidewalk performs an essential public function, the Venetian does not have the right to exclude individuals from the sidewalk based upon permissible exercises of their right to expression under the First Amendment, and the county has not taken the Venetian’s private property rights by failing to arrest or cite individuals who do so. The public may use the Venetian’s sidewalk for First Amendment purposes to the same degree that it may use any other public sidewalk subject to content neutral and reasonable time, place and manner restrictions."

 

So there you have it, people: "Private" sidewalks aren’t so private, no matter how the Nevada Resort Association might wish it so. Casino property proper, including gambling areas, hotels, restaurants, etc. is totally private, and casinos may exclude anyone from those spaces. But sidewalks? It’s not even a close call.