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October 16, 2002
News Specialist
John Daley Reporting
The day after a gathering of high-profile community leaders
seeking a solution in the Main Street fight, all of the parties
are considering their options.
But it's becoming increasingly clear that barring some kind
of compromise, the courts may well have the final say on the
issue.
There are several ways this whole Main Street situation could
play out.
And whatever happens, someone is likely to be unhappy. The
entire issue could see several more rounds in court. For such
a peaceful place, it's one furious fight.
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On Main Street,
there are several routes to the ultimate solution, and some
may well lead -- once again -- right to federal court.
Option one: the city allows normal First Amendment protections,
but establishes time, place and manner rules on that free speech.
The Church of Jesus Christ of Latter-day Saints would likely
fight it, though it's the choice most preferred by the American
Civil Liberties Union.
"The church simply doesn't have any say in the matter.
It's the city that has the responsibility to draft these regulations
to ensure public access and to make sure everyone is treated
fairly," says Stephen Clark, attorney for the ACLU.
Option two: the city could give or sell the easement that allows
public access.
That plan would likely be fine with the church, but incite a
new lawsuit from the ACLU and could be politically challenging
for the Mayor.
Bruce
Baird is a former assistant city attorney who mapped out free
speech rules for Gallivan Plaza.
"If
the city tries to give it away, it raises issues of the establishment
clause of both the federal and state constitutions and the
support for religions clause.
"If they try to sell it, the question is what are they
selling? Are they selling the right to walk or are they selling
the right to speech? One isn't worth very much. One of them,
the right to speech, is essentially priceless," Baird
said.
Other options include the church suing the city, perhaps for
breach of contract, or perhaps the city setting up free speech
zones like the ones used during the Olympics.
Any way you slice it, something has got to give, and it's
likely neither side would give up until all its legal options
were exhausted.
Church lawyers
had no comment today.
They do have two appeal options, both of them longshots.
They can ask the entire 10th Circuit Court of Appeals to reconsider
the case. The court agrees to take another look only 1 percent
of the time.
They can ask the Supreme Court to take up the case. Of all the
petitions that go that route, only 3 percent are accepted.
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