ACLU won’t take free-speech fight to the Supreme Court
The long, strange journey that was the Main Street Plaza battle effectively ends today, dropping the curtain on a seven-year drama over whether a chunk of Salt Lake City’s Main Street should be an LDS Church-owned park.
The American Civil Liberties Union said Thursday it will forgo appealing its First Amendment case to the nation’s highest court. The organization, in essence, had until today to file, but found no stomach for it among its national and Utah attorneys working on the case.
“We ultimately decided it was not in the best interest of the plaintiffs, the public, the ACLU or the important principles involved to trouble the U.S. Supreme Court with an appeal,” said Dani Eyer, executive director of the ACLU’s Utah chapter. “We did notify all the plaintiffs. Nobody was inclined to pressure us or hire someone else.”
That means the Main Street Plaza between North Temple and South Temple will remain under LDS Church control with bans on protesting, smoking, sunbathing, bicycling and other “offensive, indecent, obscene, lewd or disorderly speech, dress or conduct.”
The end came without fanfare to a controversy that, at times, inflamed the city, the county, even the state. It brought the word “easement” into the vernacular. Utahns debated freedom of speech and freedom of religion. They flocked to City Hall for public hearings (televised live) and flooded city switchboards with public comments.
At the literal crossroad of church and state, the plaza became the symbol for all battles between the traditional power of the LDS Church in Utah and the ever-increasing religious diversity of the state.
It was, as Eyer puts it, the stuff of democracy. And city officials, Latter-day Saints, even the ACLU say it was worth it. They hope lessons were learned – about civics, about the need to include the public in government decisions, about the obligation to address a simmering religious divide.
Carlton Christensen, the only current City Council member who was on the 1999 council that voted to sell Main Street to the church, said he would do the same again today.
“Even looking back nearly seven years . . . I still think it was a good decision, albeit hard and divisive,” he said, noting the plaza facilitates large crowds congregating for LDS Church activities and that the $8.1 million the church initially paid went toward important city improvements. “It’s an amenity for the city, even though there’s not guaranteed public access for anybody.”
However, Christensen concedes the “process” fell short.
It was that process that commanded the ACLU’s attention. While the sale of Main Street went through proper city channels, the true nature of the plaza wasn’t widely known until the eleventh hour.
Initially, the plaza was pitched as a park, a “little bit of Paris,” with a public right of way or easement. In reality, it was to become an extension of Temple Square, with restrictions against certain speech, behavior and dress. The only proselyting could be that of the owner: the LDS Church.
City and church officials who brokered the deal, including then-Mayor Deedee Corradini, maintained those limits always were part of the deal. Others insisted the church and city intentionally misled the public.
“One lesson public officials may have learned is that public input or public process is important, not for purposes of just rubber-stamping, but to find out what the best course actually is,” Eyer said. “We still wonder if the whole Main Street Plaza ordeal would not have taken place if there had been legitimate hearings and all the information was presented at the outset.”
The ACLU sued over the free-speech rules and eventually won that battle in 2002 when the 10th U.S. Circuit Court of Appeals struck down the rules on the easement. That left the city to decide what to do.
Mayor Rocky Anderson, then at the helm, has never agreed with the sale of Main Street. Even today, he wishes it remained a public street.
Creating a plaza “was a mistake both in terms of city planning and in terms of exacerbating the resentment that a lot of people feel,” Anderson said.
The appellate court decision sparked a short-lived dispute between Anderson and the church. The mayor wanted to allow free speech, with some constitutional “time, place and manner” limits. The church wanted the easement gone so it could retain control. It unleashed a public-relations blitz, sending out information packets renaming the plaza the “New Church Plaza” along with a letter from President Gordon B. Hinckley.
Among residents, there were alternate charges of Mormon-bashing or theocracy-building – that allowing free speech violated Mormons’ religious rights or that eliminating speech would reveal the city as a puppet of the church. There were quiet shows of speech – people passing out pamphlets on the plaza – and rowdy ones in which preachers shouted at temple-goers, including bridal parties.
“In a lot of ways, it was an unfortunate episode for our city,” recalled Councilman Dave Buhler, who publicly sparred with Anderson over statements the mayor made that LDS members of the City Council couldn’t be objective.
“It did bring to the surface a lot of religious divisions that, frankly, I wasn’t aware existed, at least not to that extent,” Buhler said. “I don’t know that it did anything to create greater understanding between people who take sides.”
The plaza debates eventually spurred Anderson to create “Bridging the Religious Divide” forums and small group meetings. Others privately held their own healing meetings.
“That’s one good thing that came out of the Main Street controversy,” Anderson said. “It’s given us the opportunity to all talk about not only what has caused the religious divide, but [also] what we can do to help bridge it.”
Anderson backed off his “time, place, manner” plan and devised a second solution that eventually passed: The city eliminated the easement in exchange for land owned by the LDS Church in the Glendale neighborhood, and the Alliance for Unity and philanthropist James Sorensen gave money to build a community center in that west-side neighborhood.
“I can’t imagine perpetuating the situation where street preachers were standing on the plaza, hurling insults and even profanities at newly married brides,” Anderson said. “There are plenty of areas [nearby] for freedom of speech.”
Eyer believes Anderson, a former ACLU attorney, would have held out for a compromise sustaining free speech on the plaza if he had enjoyed the support of the City Council and even “an iota” of willingness on the church’s part to bend.
Councilwoman Nancy Saxton, who abstained from voting on the land-for-peace deal, said the LDS Church “missed a wonderful opportunity to reach out to the community who felt disenfranchised by them.”
The ACLU sued the city again, this time over the sale of the easement. It lost in the 10th Circuit in October.
In the end, Eyer argues the city traded away the public’s passageway for a “mess of pottage.”
“We learned that the church values message control, that accommodating the LDS Church’s desire to deliver its message without criticism was more important to the city than the public’s unfettered right to come and go and speak its mind.”
But one of the ACLU’s plaintiffs hopes the LDS Church – it declined to comment for this story – learned something, too.
“I really trust that having gone through all of this, that the LDS Church will somehow offer greater sensitivity to the very diverse and growing multiculturalism in this area,” said the Rev. Tom Goldsmith of the First Unitarian Church of Salt Lake City.
One example he points to is the church’s announcement it will allow restaurants on its downtown mall blocks to seek liquor licenses, even though the church expects its members not to drink.
“I really think we’ve all gained by this.”
Alexander Morrison, a former general authority in the LDS Church and executive director of the Alliance for Unity, said the plaza debate was warranted, but not the name-calling hurled from both sides.
“If there’s one lesson that I hope we’ve learned it is the need for us to be civil with each other,” he said. “I would hope in the future we would really learn that shouting at each other and calling each other names doesn’t do a bit of good.
“There comes a time when you’ve got to say it’s over, let’s get on with life.”