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ACLU Argues Against Church’s Appeal of Main St. Ruling • Monday April 14, 2003

AP, Apr. 12, 2003

SALT LAKE CITY (AP) — The American Civil Liberties Union says the U.S. Supreme Court should reject the Mormon church’s appeal of a lower court ruling regarding free speech on the city’s Main Street plaza.

The ACLU argued in a brief filed Friday that the Oct. 9 ruling from 10th U.S. District Court of Appeals isn’t as radical as The Church of Jesus Christ of Latter-day Saints claims it is.

The ACLU disagreed with the church that the 10th Circuit’s decision conflicts with other cases that say speech isn’t allowed on certain publicly-used land.

The civil-rights organization argued that the more interesting case the high court should review is one where a city sells land that is entirely private but is still used by the public — a case that may yet arise from the Main Street Plaza if the city gives the church the public easement in exchange for land and money.

The ACLU has suggested it would sue over that proposal, which is before the City Council.

Last month, the church requested the Supreme Court review the 10th Circuit decision, which said the church could not control speech and behavior on its plaza because the city retained an easement. Salt Lake City refused to join the appeal but did urge the high court to hear it.

In its brief, the church emphasized the plaza’s religiosity and said it is nothing like the former Main Street and thus shouldn’t be considered a public forum.

By comparison, the ACLU’s brief emphasizes the plaza’s secular aspects, how the city created it to anchor downtown and funnel pedestrian traffic and how the easement — as opposed to the plaza — is like other city sidewalks, which are traditionally open to speech.

The ACLU does not want the Supreme Court to hear the case because “it will imperil the judgment of the (10th Circuit) Court of Appeals,” said Mark Lopez, an attorney with the national office of the ACLU, which is now in charge of the case.

“At the same time it’s an opportunity to have a full and candid debate in front of the court about the circumstances under which what was indisputably a public forum can be closed,” he said.

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