Original Story Location: LDS Church Free Speech Quagmire
BY HEATHER MAY THE SALT LAKE TRIBUNE
Rocky Anderson has set himself up as the peacemaker on Main Street. He says he is taking the high road instead of the easy way out by finding a way to allow the LDS Church to control behavior and restrict speech on its plaza.
But the American Civil Liberties Union dragged him back into the quagmire Tuesday. The civil rights organization guaranteed another lawsuit if the city gives its public-access easement through the private plaza to the church as Anderson suggested a day earlier.
"There will be a new case," promised ACLU attorney Stephen Clark. "Round Two."
Perhaps the mayor is listening.
On Tuesday, after summoning eight advisers -- including religious leaders, lawyers and philosophy professors -- he said he is exploring whether the city should instead enact constitutionally protected time, place and manner restrictions on speech and behavior at the plaza that would not favor the church.
That's what he pledged to do when the city was ordered by the 10th Circuit Court of Appeals last week to treat the plaza as any other public sidewalk and get rid of church-enforced restrictions on speech, smoking, and proselytizing by other religions.
But then the mayor switched positions. On Monday, he suggested the city could avoid the whole mess by conveying the easement to the church but write up a contract that would allow the public 24-hour access. That way the LDS Church could continue to control the plaza.
"It's yet to be seen whether we can do [that] in a constitutional manner," Anderson said Tuesday. "So we're working on all options."
The City Council is waiting to see what the mayor cooks up before it weighs in. It postponed a vote Tuesday night on whether to hire an outside attorney. Members wanted to know whether they can give or sell the easement to the LDS Church if Anderson decides not to, and whether they can join the church's appeal of the 10th Circuit decision.
"After all that's happened [Tuesday] we just wanted to give it a little breathing room," said Council Chairman David Buhler.
None of Anderson's advisers would reveal the specifics of Tuesday's discussion or their thoughts on what the city should do.
"This is a group of people who are willing to cooperate and to work together for the benefit of this community," said Carolyn Tanner Irish, Bishop of the Episcopal Church. Were the Episcopal Church in the same position, "we would want the same they [the LDS Church] want. We are working together to find what is in the best interest of public life."
H. David Burton, presiding bishop for the LDS Church, would not say whether he supports the mayor's proposal, although a church attorney has urged the city to give up its easement.
"The mayor is giving excellent leadership to the issue," Burton said. "We're interested in making certain a deal is a deal. What the solution to the problem is, is yet to be determined."
Anderson said he pitched the idea of giving up the easement because that is what the church bargained for in 1999 when former Mayor Deedee Corradini and the City Council agreed to sell the block to the church for $8.1 million. The contract maintained the 24-hour public easement but allowed the church to determine behavior. Last week's decision by the 10th Circuit Court of Appeals said the church's restrictions violate the First Amendment.
"This is not a Mormon or non-Mormon issue. It doesn't matter who it is who entered the agreement, people ought to stand by their deals," Anderson said.
However, the mayor has reneged on other deals made before his tenure, including backing out of a contract to place the University of Utah's Museum of Fine Arts in the Brooks Arcade building. Corradini also had plans to build an outlet mall on the west side of the city, but Anderson nixed that budding deal too.
The ACLU's Clark said Anderson would be violating the contract the city made with the church on Main Street if he gives up the easement.
The contract states that if the church's free-speech restrictions are struck down, the city can keep its easement.
"He can't take cover under the agreement and say, 'Oh, I'm honoring the agreement even if I don't want to do it. My hands are tied.' That's bullshit," Clark said.
Besides, Clark said, transferring the easement would not get rid of the constitutional requirement to protect speech on the plaza. Clark noted that the 10th Circuit Court ruling refers to a Las Vegas case in which a sidewalk by the Venetian casino is privately owned but considered a First Amendment forum because it is a public thoroughfare.
"It's one more futile attempt by the city to have its cake and eat it too," Clark said.
Tribune reporters Lori Buttars and Chris Smart contributed to this story.