American Civil Liberties Union v. City of Las Vegas , 466 F.3d 784 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN CIVIL LIBERTIES 
UNION OF NEVADA; PAUL R.
BROWN; GARY PECK; UNITARIAN
UNIVERSALIST SOCIAL JUSTICE
COMMITTEE,
Plaintiffs-Appellants,
v. No. 05-15667
CITY OF LAS VEGAS; OSCAR  D.C. No.
GOODMAN, in his official capacity CV-97-01419-DWH
as Mayor; FREMONT STREET
LIMITED LIABILITY CORP.; JOSEPH
SCHILLACI, in his official capacity
as President of The Fremont Street
Limited Liability Corp.,
Defendants-Appellees.

AMERICAN CIVIL LIBERTIES 
UNION OF NEVADA; PAUL R.
BROWN; GARY PECK; UNITARIAN
UNIVERSALIST SOCIAL JUSTICE
COMMITTEE, No. 05-15767
Plaintiffs-Appellees,
v.  D.C. No.
CV-97-01419-DWH
CITY OF LAS VEGAS; OSCAR OPINION
GOODMAN; FREMONT STREET
LIMITED LIABILITY CORP.; JOSEPH
SCHILLACI,
Defendants-Appellants.

17671
17672 ACLU v. CITY OF LAS VEGAS
Appeals from the United States District Court
for the District of Nevada
David Warner Hagen, District Judge, Presiding
Argued and Submitted
June 1, 2006—San Francisco, California
Filed October 20, 2006
Before: A. Wallace Tashima, Sidney R. Thomas, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
ACLU v. CITY OF LAS VEGAS 17675
COUNSEL
Allen Lichtenstein, Las Vegas, Nevada, and Mark J. Lopez,
American Civil Liberties Union Foundation, Inc., New York,
New York, for the plaintiffs-appellants/cross-appellees.
Todd L. Bice, Shreck Brignone, Las Vegas, Nevada, Kristin
B. McMillan and Patrick J. Reilly, Hale Lane Peek Dennison
Howard & Anderson, Las Vegas, Nevada, and William P.
Henry, Office of the City Attorney, Las Vegas, Nevada, for
the defendants-appellees/cross-appellants.
OPINION
PAEZ, Circuit Judge:
We must decide whether city ordinances prohibiting solici-
tation and the erection of tables in a five-block tract of down-
town Las Vegas unconstitutionally restrict free speech. We
hold that they do.
I.
This case returns to our court for a third time. In 1997, non-
profit organizations the American Civil Liberties Union of
Nevada, the Unitarian Universalist Social Justice Committee,
the Shundahai Network, and three of their members (collec-
tively “Plaintiffs”) filed a complaint in federal district court
for declaratory and injunctive relief.1 Relying on 42 U.S.C.
1
The Shundahai Network and Greg Gable, a Shundahai Network mem-
ber, have since dismissed their claims.
17676 ACLU v. CITY OF LAS VEGAS
§ 1983, Plaintiffs sought to enjoin the City of Las Vegas, the
mayor of Las Vegas, the Fremont Street Experience Limited
Liability Corporation (“FSELLC”),2 and the chief executive
of FSELLC (collectively “Defendants” or “the City”) from
enforcing several provisions of the Las Vegas Municipal
Code (“LVMC”) that Plaintiffs believe unconstitutionally
restrict their First and Fourteenth Amendment rights to free
speech and equal protection of the laws.
As we explained in ACLU v. City of Las Vegas, 333 F.3d
1092 (9th Cir. 2003) (“ACLU I”), cert. denied, 540 U.S. 1110(2004), the ordinances that are the focus of Plaintiffs’ com-
plaint were adopted as part of the City’s effort to revitalize the
downtown area of Las Vegas:
In the early 1990s, downtown Las Vegas was suf-
fering from an economic downturn. The area was
seen as sleazy and unsafe, and downtown casinos
were unable to compete with the glitzy Las Vegas
Strip. Moreover, key economic factors showed that
the area was in decline. In an effort to halt the slump
and return downtown to its former luster, city offi-
cials decided to emulate economic revival measures
taken in towns throughout the United States by creat-
ing a pedestrian-friendly zone. Five blocks of Fre-
mont Street, the center of the downtown area, were
closed off to automotive traffic. The City of Las
Vegas contracted with a private entity, the Fremont
Street Experience Limited Liability Corporation
(“FSELLC”), to transform frumpy Fremont Street
into the glamorous Fremont Street Experience. At a
cost to the public and contributing Fremont Street
businesses of $70 million, the street and sidewalk
were torn up, various underground infrastructure ele-
2
FSELLC is a private company charged with operating the Fremont
Street Experience in downtown Las Vegas. The Fremont Street Experi-
ence is described in detail below.
ACLU v. CITY OF LAS VEGAS 17677
ments were installed, the street was decoratively
repaved as one large promenade, and a canopy capa-
ble of generating a lightshow (known, with a dash of
hyperbole, as the “celestial superstructure”) was
placed high overhead certain parts of the street.
The street continues to play its old role as a pedes-
trian thoroughfare, and at two points it is crossed by
streets bearing car traffic. It also functions as a
“commercial and entertainment complex,” intended
to be an “attraction to compete with numerous other
entertainment venues in Las Vegas.” In addition to
the many casinos and stores that line the street, the
Fremont Street Experience hosts daily performing
acts and bands, and frequently holds large special
events, most of which are free and open to the pub-
lic. In the evening, the lightshow plays overhead for
a few minutes each hour.
Id. at 1094-95. Certain speech-related activities, in the eyes of
Defendants, are not compatible with the new Fremont Street
Experience. See id. at 1095. As the district court explained in
its most recent order:
According to testimony of numerous witnesses,
written surveys, letters, and other documentation
presented to the City Council, solicitation activities
in the Mall [i.e., the Fremont Street Experience]
would disrupt the comfortable environment that is
sought to be maintained for its patrons. That disrup-
tion would in turn cause visitors, tenants, and corpo-
rate sponsors of the Mall to go elsewhere or deter
them from coming to the Mall in the first instance.
Without visitors, the City’s purpose in creating the
Mall to revitalize the downtown business area would
be compromised and the Mall itself would be in
jeopardy economically.
17678 ACLU v. CITY OF LAS VEGAS
ACLU v. City of Las Vegas, No. 97-1419, at 6-7 (D. Nev.
Mar. 4, 2005) (unpublished order) (“2005 Order”). The record
is replete with evidence that aggressive panhandling, solicita-
tion, and handbilling had discouraged tourists and consumers
from patronizing the downtown commercial district.
To address these concerns, the City adopted ordinances
restricting activities in the Fremont Street Experience. One of
those ordinances, LVMC § 10.44.030, prohibits solicitation at
multiple Las Vegas locations including the Fremont Street
Experience. See id. § 10.44.030(F). Soliciting in the Fremont
Street Experience constitutes a misdemeanor. Id. § 10.44.030.
Solicitation is broadly defined as “to ask, beg, solicit or
plead, whether orally, or in a written or printed manner, for
the purpose of obtaining money, charity, business or patron-
age, or gifts or items of value for oneself or another person
or organization.” Id. § 10.44.010(A). The expansive reach of
the solicitation ordinance is confirmed by Defendants’ inter-
pretation of it as prohibiting distribution of a handbill by the
Shundahai Network stating “WE NEED HELP - ANYTHING
- FOOD - DONATIONS - PEOPLE - CARS - LOVE -
KITCHEN SUPPLIES” and providing contact information.
According to the City’s counsel, distribution of this handbill
violated the ordinance because “[t]he solicitation ordinance
expressly prohibits any requests whether written or oral for
charity, business or patronage.” The district court confirmed
this interpretation of the ordinance in its 2001 order, finding
that LVMC § 10.44.010(A) “bar[s] the distribution of mes-
sage bearing leaflets that solicit money or donations . . .
through in hand leafleting, regardless of whether their request
is for an immediate or future donation.” ACLU v. City of Las
Vegas, No. 97-1419, at 14-15 (D. Nev. Apr. 4, 2001) (unpub-
lished order) (“2001 Order”).
In their 1997 complaint, Plaintiffs challenged the solicita-
tion ordinance as invalid both on its face and as applied to
them. According to Plaintiffs, the ordinance unconstitution-
ACLU v. CITY OF LAS VEGAS 17679
ally restricts their and others’ First and Fourteenth Amend-
ment rights to free speech.3 Plaintiffs also asserted that, to the
extent FSELLC permits solicitation in the Fremont Street
Experience, the ordinance violates their and others’ Four-
teenth Amendment equal protection rights because no stan-
dards govern FSELLC’s discretion.
A second ordinance prohibits a variety of activities solely
in the Fremont Street Experience. See LVMC § 11.68.100.
Violation of this ordinance also constitutes a misdemeanor.
Id. § 11.68.130. In their 1997 complaint, Plaintiffs challenged
three subsections of LVMC § 11.68.1004 —those banning
3
The First Amendment states that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. “Under the Four-
teenth Amendment, city ordinances are within the scope of this limitation
on governmental authority.” Members of the City Council v. Taxpayers for
Vincent, 466 U.S. 789, 792 n.2 (1984).
4
In relevant part, the ordinance reads:
Prohibited. The following are prohibited within the Pedestrian
Mall:
....
(B) Mall vending, mall advertising, mall entertainment spe-
cial events or other commercial activities unless conducted or
authorized by The Fremont Street Experience Limited Liability
Company;
....
(H) The placement of any table, rack, chair, box, cloth, stand,
booth, container, structure or other object within the Pedestrian
Mall except as necessary for emergency purposes, or the mainte-
nance or repair of the Pedestrian Mall, or as authorized by The
Fremont Street Experience Limited Liability Company for spe-
cial events, mall advertising, mall entertainment or mall vending
or other commercial and entertainment activities;
(I) In-person distribution to passersby in a continuous or
repetitive manner of any physical or tangible things and printed,
written or graphic materials[.]
LVMC § 11.68.100.
17680 ACLU v. CITY OF LAS VEGAS
vending, tabling, and leafleting—on equal protection grounds.
See id. §§ 11.68.100(B), (H), (I).5 In addition to its language
banning specific conduct in the Fremont Street Experience,
LVMC § 11.68.100 also contains an exemption for labor-
related activities, which applies to each of its eleven subsec-
tions including the vending, tabling, and leafleting provisions.6
In their complaint, Plaintiffs claimed the labor exception’s
application to LVMC §§ 11.68.100(B), (H), and (I) violates
the Equal Protection Clause of the Fourteenth Amendment.7
Of relevance to Plaintiffs’ claim regarding LVMC
§ 11.68.100(H) are the facts of the following incident, which
occurred on October 24, 2000. Three ACLU members set up
a table in the Fremont Street Experience, from which they
hung an ACLU banner. They placed petitions on the table and
handed out flyers. After security officers confronted the mem-
bers and showed them the ordinance prohibiting tabling, they
were required to remove the table.
Initially, the district court ruled that the Fremont Street
Experience is a nonpublic forum and analyzed Plaintiffs’
challenges in light of that determination. ACLU v. City of Las
Vegas, 13 F. Supp. 2d 1064, 1073-83 (D. Nev. 1998). The dis-
trict court granted summary judgment to Defendants regard-
ing the solicitation and tabling ordinances, but issued
preliminary injunctions enjoining Defendants from enforcing
5
Although the 1997 complaint did not specify that Plaintiffs were chal-
lenging subsections (B) and (H) of LVMC § 11.68.100, the district court
construed it as a challenge to those subsections, and Plaintiffs since have
filed an amended complaint alleging constitutional infirmities in subsec-
tions (B) and (H).
6
LVMC § 11.68.100 states: “Any conduct ‘arguably protected’ by the
National Labor Relations Act is not included in [section 11.68.100’s] pro-
hibitions until or unless such conduct is determined to be unprotected pur-
suant to a decision of the National Labor Relations Board.”
7
The Fourteenth Amendment states: “No State shall . . . deny to any per-
son within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV.
ACLU v. CITY OF LAS VEGAS 17681
the leafleting and vending ordinances. Id. at 1084-85. We dis-
missed cross-appeals from the district court’s order in an
unpublished disposition. ACLU v. City of Las Vegas, 168 F.3d
497 (9th Cir. 1999) (mem.).
In 2001, the district court entered a final, unpublished order
granting summary judgment to Defendants on the solicitation
and tabling claims and granting summary judgment to Plain-
tiffs on their leafleting and vending claims. The court perma-
nently enjoined Defendants from enforcing the latter two
ordinances. 2001 Order at 18. The court reiterated its conclu-
sion that the Fremont Street Experience is a nonpublic forum.
Id. at 10.
Once again the parties cross-appealed. In a published opin-
ion, we held that the district court erred in concluding that the
Fremont Street Experience is a nonpublic forum. “[T]he Fre-
mont Street Experience unmistakably possesses the character-
istics of a traditional public forum” where restrictions on
protected First Amendment activity “must be scrutinized
under a strict standard of review.” ACLU I, 333 F.3d at 1094.
Although the City urged us to hold that its “expensive
makeover” transformed the Fremont Street Experience into a
nonpublic forum, we rejected the City’s attempt to recharac-
terize its downtown streets and sidewalks as anything other
than a traditional public forum. Id. at 1102; see also id. at
1105 (“The principal uses of Fremont Street, both before and
after its transformation, are as a commercial district and pub-
lic thoroughfare. The grime of Fremont Street has been
scrubbed away and it has been dramatically redesigned, but its
character as a central commercial street remains.”). Because
the district court correctly concluded that the leafleting and
vending ordinances were invalid even under the laxer stan-
dard applicable to a nonpublic forum, we affirmed the court’s
holdings that those ordinances were unconstitutional. Id. at
1106-09. We remanded to the district court for reconsidera-
tion of the solicitation and tabling ordinances in light of our
17682 ACLU v. CITY OF LAS VEGAS
holding that the Fremont Street Experience is a traditional
public forum. Id. at 1108-09.
On remand, Plaintiffs amended their complaint to clarify
their claims.8 In their amended complaint, Plaintiffs chal-
lenged the solicitation ordinance as an unconstitutional
restriction on protected First Amendment activity, both on its
face and as applied to them. Plaintiffs challenged both the
solicitation and tabling ordinances as unconstitutional
infringements of their Fourteenth Amendment equal protec-
tion rights, again facially and as applied to them.9
On cross-motions for summary judgment, the district court
reanalyzed the solicitation and tabling ordinances in light of
our conclusion that the Fremont Street Experience is a tradi-
tional public forum. In an unpublished order, the district court
held that the solicitation ban is content-neutral and a valid
time, place, and manner restriction on First Amendment activ-
ity. 2005 Order at 5-8. The court granted Defendants’ motion
for summary judgment on the solicitation ordinance. Id. at 8.
The court further held that the ordinance prohibiting the erec-
tion of tables in the Fremont Street Experience violates Plain-
tiffs’ equal protection rights. Id. at 9-10. The court granted
summary judgment to Plaintiffs on their as-applied claim, but
8
Plaintiffs also sought to amend their complaint to include a challenge
to LVMC § 11.68.100(C), which prohibits parades in the Fremont Street
Experience. The district court did not allow this amendment.
9
Plaintiffs also argued that the solicitation ordinance is overly broad.
“Technically, the overbreadth doctrine does not apply if the parties chal-
lenging the statute engage in the allegedly protected expression.” Nunez
v. City of San Diego, 114 F.3d 935, 949 (9th Cir. 1997). Such is the case
with Plaintiffs. However, Plaintiffs may seek, as a remedy, the facial
invalidation of the solicitation ordinance if it is an overly broad regulation
that “create[s] an unacceptable risk of the suppression of ideas.” Id. (inter-
nal quotation marks omitted). “Facial challenges to overly broad statutes
are allowed not primarily for the benefit of the litigant, but for the benefit
of society—to prevent the statute from chilling the First Amendment
rights of other parties not before the court.” Sec’y of State v. Joseph H.
Munson Co., 467 U.S. 947, 958 (1984).
ACLU v. CITY OF LAS VEGAS 17683
declined to hold that the tabling statute is facially invalid. Id.
at 10. The parties timely cross-appealed.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm in part, reverse in part, and remand to the district court
with instructions to enter judgment enjoining Defendants
from enforcing the solicitation ordinance in the Fremont
Street Experience and enjoining Defendants from enforcing
the tabling ordinance against Plaintiffs when Plaintiffs seek to
erect tables to facilitate the dissemination of protected speech.
II.
We review de novo the district court’s grants of summary
judgment and may affirm on any ground that is supported by
the record. ACLU I, 333 F.3d at 1096-97. The question is
whether, when the evidence is viewed in the light most favor-
able to the nonmoving party, genuine issues of material fact
exist. Id. at 1097. Here, cross-motions for summary judgment
are at issue. We “evaluate each motion separately, giving the
nonmoving party in each instance the benefit of all reasonable
inferences.” Id.III.
“The government’s right to limit expressive activity in a
public forum ‘is “sharply” circumscribed.’ ” S.O.C., Inc. v.
County of Clark, 152 F.3d 1136, 1145 (9th Cir.) (quoting
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S.
37, 45 (1983)), amended by 160 F.3d 541 (9th Cir. 1998).
“Thus, governmental regulation of speech in a traditional pub-
lic forum ‘is subject to the highest scrutiny.’ ” Id. (quoting
Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S.
672, 678 (1992) (“ISKCON”)). The government bears “an
extraordinarily heavy burden” when it seeks to regulate free
speech in a traditional public forum. ACLU I, 333 F.3d at
1098 (internal quotation marks omitted).
17684 ACLU v. CITY OF LAS VEGAS
We reiterate our concern, expressed in our prior published
opinion on Las Vegas’s restrictions on free speech in the Fre-
mont Street Experience, that “as society becomes more insu-
lar in character, it becomes essential to protect public places
where traditional modes of speech and forms of expression
can take place. ‘We think this is particularly true with respect
to downtown public spaces conducive to expressive activi-
ties.’ ” Id. at 1097 (quoting First Unitarian Church v. Salt
Lake City Corp., 308 F.3d 1114, 1131 (10th Cir. 2002)) (alter-
ation, citation, and internal quotation marks omitted).
Las Vegas is not alone in its effort to reinvent an histori-
cally public space and its subsequent attempt to limit free
speech where First Amendment activities formerly proceeded
unhindered. There is a growing “ ‘nationwide trend toward
the privatization of public property.’ ” Id. (quoting Chicago
Acorn v. Metro. Pier & Exposition Auth., 150 F.3d 695, 704
(7th Cir. 1998)). In recent years, cities such as Salt Lake City,
Utah, see First Unitarian Church, 308 F.3d 1114, Boston,
Massachusetts, see Citizens to End Animal Suffering &
Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F.
Supp. 65 (D. Mass. 1990), Portland, Oregon, see Lloyd Corp.
v. Whiffen, 849 P.2d 446 (Or. 1993), and Jamestown, North
Dakota, see City of Jamestown v. Beneda, 477 N.W.2d 830(N.D. 1991), to name just a handful, have sold or leased tradi-
tional public fora to private entities. See also Marsh v. Ala-
bama, 326 U.S. 501 (1946) (prohibiting the private owner of
a company town from eliminating First Amendment activities
from its streets and sidewalks); Venetian Casino Resort, LLC
v. Local Joint Exec. Bd., 257 F.3d 937 (9th Cir. 2001) (con-
sidering restrictions on expressive activity on a formerly pub-
lic sidewalk, now privately owned, adjacent to Las Vegas
Boulevard). If this trend of privatization continues—and we
have no reason to doubt that it will—citizens will find it
increasingly difficult to exercise their First Amendment rights
to free speech, as the fora where expressive activities are pro-
tected dwindle. “Awareness of contemporary threats to speech
ACLU v. CITY OF LAS VEGAS 17685
must inform our jurisprudence regarding public forums.”
ACLU I, 333 F.3d at 1097.
It is with these principles in mind that we turn to the merits
of this case.
A.
Plaintiffs contend that the City’s solicitation ordinance
unconstitutionally restricts their First and Fourteenth Amend-
ment rights to free speech in the Fremont Street Experience.
The district court disagreed. We review de novo the district
court’s ruling because First Amendment questions are mixed
questions of law and fact, Gerritsen v. City of Los Angeles,
994 F.2d 570, 575 (9th Cir. 1993), and because we review de
novo the constitutionality of local ordinances, G.K. Ltd.
Travel v. City of Lake Oswego, 436 F.3d 1064, 1070 (9th Cir.
2006). We reverse and remand to the district court with
instructions to enjoin Defendants from enforcing LVMC
§ 10.44.030 in the Fremont Street Experience.
1.
[1] It is beyond dispute that solicitation is a form of expres-
sion entitled to the same constitutional protections as tradi-
tional speech. See Vill. of Schaumburg v. Citizens for a Better
Env’t, 444 U.S. 620, 628-32 (1980); see also ISKCON, 505
U.S. at 677; Gaudiya Vaishnava Soc’y v. City of San Fran-
cisco, 952 F.2d 1059, 1063-64 (9th Cir. 1991). “Regulation of
a solicitation must be undertaken with due regard for the real-
ity that solicitation is characteristically intertwined with infor-
mative and perhaps persuasive speech . . . , and for the reality
that without solicitation the flow of such information and
advocacy would likely cease.” Riley v. Nat’l Fed’n of the
Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (internal quota-
tion marks omitted) (alteration in original). The City bears the
burden of justifying its restriction. Bay Area Peace Navy v.
United States, 914 F.2d 1224, 1227 (9th Cir. 1990).
17686 ACLU v. CITY OF LAS VEGAS
[2] Although regulation of speech in a traditional public
forum is disfavored, it is not impermissible. The government
may place reasonable time, place, and manner restrictions on
speech. However, these restrictions must be justified without
reference to the protected speech’s content. They must be
content-neutral and narrowly tailored to serve a significant
government interest, leaving open ample alternative channels
of expression. Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984). “The failure to satisfy any single prong
of this test invalidates the requirement.” Grossman v. City of
Portland, 33 F.3d 1200, 1205 (9th Cir. 1994).
[3] A content-based regulation, on the other hand, is “pre-
sumptively unconstitutional,” S.O.C., 152 F.3d at 1145, and
subject to strict scrutiny, see Riley, 487 U.S. at 798-801.
“Content-based regulations pass constitutional muster only if
they are the least restrictive means to further a compelling
interest.” S.O.C., 152 F.3d at 1145. The City concedes in its
briefing to our court that if the solicitation ordinance is
content-based, it is facially invalid: “If the Panel in the second
appeal had embraced the ACLU’s content-based argument,
the [solicitation] ordinance would have been facially invalid
. . . .”
Thus, the initial question this case poses is whether the
solicitation ordinance is content-based or content-neutral. See
Frisby v. Schultz, 487 U.S. 474, 481 (1988) (“[T]he appropri-
ate level of scrutiny is initially tied to whether the statute dis-
tinguishes between prohibited and permitted speech on the
basis of content.”). If the ordinance is content-neutral, we
must determine whether it is narrowly tailored, serves a sig-
nificant government interest, and leaves open ample alterna-
tive channels of expression. If the ordinance is content-based,
it is presumptively invalid and we will uphold its constitution-
ality only if the City can demonstrate that it is the least restric-
tive means of furthering a compelling government interest.
ACLU v. CITY OF LAS VEGAS 17687
2.
“Solicitation” is defined broadly by the Las Vegas Munici-
pal Code to include “ask[ing], beg[ging], solicit[ing] or plead-
[ing], whether orally, or in a written or printed manner, for the
purpose of obtaining money, charity, business or patronage,
or gifts of items of value for oneself or another person or
organization.” LVMC § 10.44.010(A). Counsel for the City
has indicated that the ban on solicitation covers more than
requests for in-hand monetary donations, and the district court
confirmed this interpretation of the ordinance. Whereas hand-
bills that simply offer information, or offer information and a
contact number, are permitted, handbills requesting that the
recipient “join us” or soliciting future donations are prohib-
ited.
[4] The Supreme Court has explained:
The principal inquiry in determining content neu-
trality, in speech cases generally and in time, place,
or manner cases in particular, is whether the govern-
ment has adopted a regulation of speech because of
disagreement with the message it conveys. The gov-
ernment’s purpose is the controlling consideration. A
regulation that serves purposes unrelated to the con-
tent of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but
not others. Government regulation of expressive
activity is content neutral so long as it is “justified
without reference to the content of the regulated
speech.”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(quoting Clark, 468 U.S. at 293). That said, we are not
required to find a content-based purpose in order to hold that
a regulation is content-based. See Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 642 (1994). “[T]he mere assertion of a
content-neutral purpose [is not] enough to save a law which,
17688 ACLU v. CITY OF LAS VEGAS
on its face, discriminates based on content.” Id. at 642-43.
Rather, “[a]s a general rule, laws that by their terms distin-
guish favored speech on the basis of the ideas or views
expressed are content based.” Id. at 643. Thus we will hold
that the solicitation ordinance is content-based if either the
main purpose in enacting it was to suppress or exalt speech
of a certain content, or it differentiates based on the content
of speech on its face. See City of Cincinnati v. Discovery Net-
work, Inc., 507 U.S. 410, 429-30 (1993).
The district court concluded from the uncontroverted evi-
dence that the City had the following intent in passing the
solicitation ban: “(1) [to] protect potential visitors from solici-
tors in an environment where the freedom of movement is
restricted; (2) [to] accommodate and encourage the safe, effi-
cient, and orderly movement of pedestrians; and (3) [to] pro-
tect the local merchant economy.” 2005 Order at 6. According
to the district court, “[n]one of these interests concerns the
content of speech, and there is no evidence in the record that
the ordinance was designed to suppress certain ideas that the
City finds distasteful.” Id. Of course, there exists the possibil-
ity that solicitation was targeted because, as the record indi-
cates, in downtown Las Vegas it generally concerns requests
for money by the homeless or vagrants and requests for
patronage of sex-based businesses. However, Plaintiffs have
not presented evidence to raise a genuine issue of material
fact regarding the City’s motivation for enacting the solicita-
tion ordinance, and the uncontroverted evidence supports that
the ordinance was enacted with the purpose of controlling the
secondary effects of solicitation, rather than the content of the
soliciting requests themselves. We “will not strike down an
otherwise constitutional statute on the basis of an alleged
illicit legislative motive.” United States v. O’Brien, 391 U.S.
367, 383 (1968).
[5] Because the record indicates that the solicitation ordi-
nance was not enacted with the purpose of suppressing speech
with certain content, whether the ordinance is content-based
ACLU v. CITY OF LAS VEGAS 17689
hinges on whether it discriminates based on content on its
face. We hold that it does. The record is crystal clear that
handbills containing certain language may be distributed in
the Fremont Street Experience, while those containing other
language may not. In order to enforce the regulation, an offi-
cial “must necessarily examine the content of the message
that is conveyed.” Forsyth County, Ga. v. Nationalist Move-
ment, 505 U.S. 123, 134 (1992) (quotation marks omitted).
Handbills with certain content pass muster; those requesting
financial or other assistance do not. Even if this distinction is
innocuous or eminently reasonable, it is still a content-based
distinction because it “singles out certain speech for differen-
tial treatment based on the idea expressed.” Foti v. City of
Menlo Park, 146 F.3d 629, 636 n.7 (9th Cir. 1998).
Although courts have held that bans on the act of solicita-
tion are content-neutral, we have not found any case holding
that a regulation that separates out words of solicitation for
differential treatment is content-neutral. See, e.g., United
States v. Kokinda, 497 U.S. 720, 736 (1990) (plurality opin-
ion) (holding that a ban on in-hand solicitation of money is
content-neutral based on “the inherent nature of solicitation
itself”); id. at 738-39 (Kennedy, J., concurring) (emphasizing
that the regulation permits the distribution of literature solicit-
ing support); ACORN v. City of Phoenix, 798 F.2d 1260,
1267-68, 1271 (9th Cir. 1986) (holding that a ban on in-hand
solicitation from automobiles, that does not cover distribution
of literature requesting contributions, is content neutral).10 In
10
See also Gresham v. Peterson, 225 F.3d 899, 905-06 (7th Cir. 2000)
(assuming without deciding that a ban on requests for immediate dona-
tions in public places is content-neutral); Smith v. City of Fort Lauderdale,
Fla., 177 F.3d 954, 956 (11th Cir. 1999) (assuming without deciding that
a ban on soliciting, begging, and panhandling that appears to pertain only
to requests for immediate donations is content-neutral); Perry v. Los Ange-
les Police Dep’t, 121 F.3d 1365, 1369 (9th Cir. 1997) (assuming without
deciding that a ban on sales and solicitation of donations that appears to
pertain only to in-hand sales and solicitations is content-neutral); cf. Hef-
fron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 648-49
(1981) (holding that a ban on solicitation of funds as well as distribution
or sale of written materials is content-neutral).
17690 ACLU v. CITY OF LAS VEGAS
other cases, the Supreme Court and our court have found bans
on certain manner of expression or expressive conduct
content-neutral. See, e.g., Turner, 512 U.S. at 645 (holding
that rules that distinguish “based only upon the manner in
which speakers transmit their messages to viewers, and not
upon the messages they carry” are content-neutral); G.K. Ltd.,
436 F.3d at 1075 (holding that a regulation on the size and
type of signs permitted in a city is not content-based); Hono-
lulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1044 (9th Cir.
2002) (holding that an ordinance requiring distribution of
publications from specified newsracks based on whether or
not they charge their readers is content-neutral because “the
city targeted the manner in which [they are] distributed, not
the content of [their] message[s]”); One World One Family
Now v. City and County of Honolulu, 76 F.3d 1009, 1012 (9th
Cir. 1996) (holding that a ban on the sale of all merchandise,
including message-bearing merchandise, on city streets is
content-neutral).11 In none of these cases did a court hold that
a regulation that distinguishes based on the printed content of
a message is content-neutral.
By contrast, the cases most directly on point support Plain-
tiffs’ contention that Las Vegas’s solicitation ordinance is
content-based. In ISKCON, the Supreme Court upheld a ban
on solicitation in an airport terminal. According to the Court,
the terminal was a nonpublic forum; the majority therefore
11
See also Hill v. Colorado, 530 U.S. 703, 719 (2000) (holding that a
ban on approaching within eight feet of another person outside an abortion
clinic for the purpose of giving them information, protesting, or counsel-
ing is content-neutral because “it is not a ‘regulation of speech[ ]’ [but]
[r]ather, it is a regulation of the places where some speech may occur”);
Menotti, 409 F.3d at 1129 (holding that a ban on accessing portions of
downtown Seattle during World Trade Organization conference “was not
a regulation of speech content, but rather was a regulation of the places
where some speech may occur” (internal quotation marks omitted));
Colacurcio v. City of Kent, 163 F.3d 545, 551-53 (9th Cir. 1998) (holding
that a ten-foot distance requirement between nude dancers and patrons is
content-neutral where it does not distinguish between types of dancing).
ACLU v. CITY OF LAS VEGAS 17691
did not consider whether the regulation was content-based.
See ISKCON, 505 U.S. at 679, 683. Concurring, Justice Ken-
nedy addressed head on the issue in the present case. Justice
Kennedy applied public forum analysis and found the regula-
tion content-neutral because it prohibited only requests for in-
hand donations. See id. at 693, 704-09 (Kennedy, J., concur-
ring). It was “directed only at the physical exchange of
money, which is an element of conduct interwoven with oth-
erwise expressive solicitation.” Id. at 705. Justice Kennedy
was clear, however, that if the “solicitation regulation prohib-
ited all speech that requested contribution of funds, [he]
would conclude that it was a direct, content-based restriction
of speech in clear violation of the First Amendment.” Id. at
704. Because the regulation permitted “the distribution of pre-
addressed envelopes along with a plea to contribute money,”
it limited only the “manner” of expression, not the content. Id.
at 704-05.
In S.O.C., our court considered a ban on “off-premises can-
vassing” on the Las Vegas Strip. The ban applied to the distri-
bution of literature that advertised or promoted services or
goods or otherwise proposed a commercial transaction.
S.O.C., 152 F.3d at 1140 n.3. As we explained,
the Clark County Ordinance refers to the content of
speech; it regulates handbills that “propose one or
more commercial transactions.” The Ordinance tar-
gets and restricts the distribution of material contain-
ing some commercial information. The Ordinance’s
ban against “off-premises canvassing” in the Las
Vegas Resort District does not prohibit the distribu-
tion of handbills that contain no commercial adver-
tising. As a result, an officer who seeks to enforce
the Clark County Ordinance would need to examine
the contents of the handbill to determine whether its
distribution was prohibited.
Id. at 1145. We held that the “off-premises canvassing” ordi-
nance was content-based. Id.17692 ACLU v. CITY OF LAS VEGAS
S.O.C. is analogous to the present case. It is the practice of
City officials to examine the content of handbills in the Fre-
mont Street Experience before deciding whether they permis-
sibly may be distributed. An ordinance is content-based if “a
law enforcement officer must read a [printed communica-
tion’s] message to determine if the [printed communication]
is exempted from the ordinance.” Foti, 146 F.3d at 636.12
12
There is some ambiguity in the case law over the value of the “officer
must read it” test. In Forsyth, the Supreme Court held that a regulation
was content-based because, in order to enforce it, “the administrator must
necessarily examine the content of the message that is conveyed.” Forsyth,
505 U.S. at 134 (internal quotation marks omitted). More recently, the
Supreme Court explained that it would not be improper for an officer to
“look at the content of an oral or written statement in order to determine
whether a rule of law applies to a course of conduct.” Hill, 530 U.S. at
721. For example, the Hill Court emphasized that a cursory review of that
sort—such as to determine whether a person approaching within eight feet
of another outside an abortion clinic is engaging in “oral protest” or just
saying “good morning”—would not be problematic. Id. at 720-22.
Although we applied the “officer must read it” test in S.O.C. and Foti,
in G.K. Ltd., we recognized a limitation to it. The G.K. Ltd. court analyzed
two provisions of a sign-regulating law and determined that they were
content-neutral in part because “neither requires law enforcement officers
to ‘read a sign’s message to determine if the sign is exempted from the
ordinance.’ ” G.K. Ltd., 436 F.3d at 1078 (quoting Foti, 146 F.3d at 636).
Thus we applied the “officer must read it” test. Regarding a third “grand-
father clause” provision, however, plaintiffs argued that officers would
have to examine the content of a sign to see if it had changed and was sub-
ject to new regulations. Id. We refused “to broaden Foti to stand for the
proposition that any time an ordinance requires a law enforcement officer
to read a sign, the ordinance must be content based.” Id. Rather, we held
that officers having to read a sign is persuasive but not dispositive evi-
dence of a content-based purpose. Id. We explained that Lake Oswego
officers “have to read signs only to determine whether the text of the sign
or a logo on the sign has changed” and noted that “even those who speak
no English could perform this superficial review function by placing the
former sign next to the new sign.” Id. at 1078-79. We distinguished Foti
as requiring an officer to “evaluate the substantive message” of a commu-
nication. Id. at 1079.
The exceptions to the “officer must read it” test identified in Hill and
G.K. Ltd. do not apply in the present case, where officers must evaluate
the substantive content of a message to know whether the solicitation ordi-
nance applies.
ACLU v. CITY OF LAS VEGAS 17693
[6] The City has not chosen to ban only the act of solicita-
tion; rather it has prohibited messages that contain soliciting
content. S.O.C. therefore controls, and Justice Kennedy’s con-
currence in ISKCON informs, our decision. We hold that the
solicitation ordinance is content-based. “Under the city’s
[solicitation] policy, whether any particular [communication]
falls within the ban is determined by the content of the [com-
munication]. Thus, by any commonsense understanding of the
term, the ban in this case is ‘content based.’ ” Discovery Net-
work, 507 U.S. at 429.13
3.
[7] As the City concedes, the solicitation ordinance cannot
survive strict scrutiny. It prohibits even the peaceful, unob-
structive distribution of handbills requesting future support of
a charitable organization. Because the ordinance does not rep-
resent the least restrictive means of achieving the City’s stated
goals of protecting potential visitors from aggressive or intru-
sive solicitation, eliminating obstructions to the free move-
13
Even if the solicitation ordinance were content-neutral, it would still
be an invalid time, place, and manner regulation. The ordinance is not nar-
rowly tailored to further the City’s substantial interests in protecting the
local merchant economy, see Perry, 121 F.3d at 1369, “assuring safe and
convenient circulation on [its] streets,” One World, 76 F.3d at 1013, and
“preventing solicitors from harassing pedestrians on public streets and
sidewalks,” S.O.C., 152 F.3d at 1146. A time, place, or manner regulation
must “target[ ] and eliminate[ ] no more than the exact source of the ‘evil’
it seeks to remedy. To be narrowly tailored, a statute need not be the least
restrictive means of furthering the government’s interests, but the restric-
tion may not burden substantially more speech than necessary to further
the interests . . . .” Menotti, 409 F.3d at 1130-31 (alterations, citations, and
internal quotation marks omitted). The solicitation ordinance targets more
than the source of “evil” identified in the record and relied upon by the
City in support of its restriction. The record indicates that aggressive pan-
handling, solicitation, and handbilling were the problems confronted by
the City. Yet the solicitation ordinance targets a substantial amount of con-
stitutionally protected speech that is not the source of the “evils” it pur-
ports to combat. The ordinance therefore would fail the time, place, and
manner test even if it were content-neutral.
17694 ACLU v. CITY OF LAS VEGAS
ment of pedestrians, and protecting the local merchant
economy,14 it is not narrowly tailored to achieve a compelling
government interest. See S.O.C., 152 F.3d at 1145 (“Content-
based regulations pass constitutional muster only if they are
the least restrictive means to further a compelling interest.”).
The solicitation ordinance is a facially unconstitutional regu-
lation of the right to free speech protected by the First
Amendment. It cannot stand.15
14
Although our cases indicate that protecting the local merchant econ-
omy is a substantial government interest, we question whether this interest
could ever be compelling. Commercial speech occupies a subordinate
position to noncommercial speech under our Constitution. See
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 505-08 (1981) (plu-
rality opinion). We are troubled by Defendants’ attempt to elevate com-
mercial speech over political speech and other noncommercial expressive
activities. We recognize the City’s legitimate economic concerns and its
interest in the success of the Fremont Street Experience. “Economic
necessity, however, cannot provide the cover for government-supported
infringements of speech.” Bock v. Westminster Mall Co., 819 P.2d 55, 61
(Colo. 1991). Defendants argue that the success of the Fremont Street
Experience hinges on its ability to attract businesses to the area. But as the
Tenth Circuit explained in a similar case, the interests of a private business
or organization cannot trump the public’s interest in free speech:
The City contends that acquiescing to the LDS Church’s demand
to control speech on the easement was necessary to obtain the
Church’s agreement to buy the property. That may be true, but
the City may not exchange the public’s constitutional rights even
for other public benefits such as the revenue from the sale, and
certainly may not provide a public space or passage conditioned
on a private actor’s desire that that space be expression-free.
First Unitarian Church, 308 F.3d at 1132.
15
Because we hold that the solicitation ordinance is unconstitutional on
First Amendment grounds, we need not address Plaintiffs’ alternate argu-
ment that, to the extent FSELLC permits solicitation in the Fremont Street
Experience, the ordinance violates the Fourteenth Amendment’s Equal
Protection Clause because no standards govern FSELLC’s discretion.
ACLU v. CITY OF LAS VEGAS 17695
B.
Plaintiffs claim that Las Vegas’s prohibition on erecting
tables in the Fremont Street Experience unconstitutionally
violates their Fourteenth Amendment rights to equal protec-
tion of the laws because labor-related activities are exempted
from the ordinance’s reach. See LVMC § 11.68.100. Plaintiffs
bring both facial and as-applied challenges. On remand to the
district court in ACLU I, we noted that Plaintiffs would have
to demonstrate that the erection of tables constitutes protected
First Amendment activity in order to prevail on their equal
protection claim. ACLU I, 333 F.3d at 1108. The district
court, however, did not address the First Amendment question
and proceeded directly to the equal protection analysis. This
was error because the level of scrutiny that we apply to an
equal protection claim varies depending on the nature of the
right at issue.16 If Plaintiffs’ use of tables is protected by the
First Amendment, the City may only draw distinctions in the
ordinance that are finely tailored to serve substantial interests.
See Carey v. Brown, 447 U.S. 455, 461-62 (1980); Perry, 121
F.3d at 1368. If, however, there is no First Amendment right
at issue, the City need only proffer a rational basis for the reg-
ulation. See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d
1055, 1061 (9th Cir. 2006).
1.
[8] We therefore must decide whether Plaintiffs’ use of
portable tables in the Fremont Street Experience constitutes
free speech. This is an issue of first impression for our circuit.
No Supreme Court or Ninth Circuit case has determined
whether the use of portable tables to distribute literature is
protected by the First Amendment. Of our sister circuits, only
the Eleventh Circuit has addressed this issue directly.17 In Int’l
16
The level of scrutiny also varies when a regulation targets a protected
class of persons. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473
U.S. 432, 440 (1985). This sort of equal protection claim is not before us.
17
The Seventh Circuit has considered restrictions on tabling in public
fora, but has not directly addressed whether the use of tables to facilitate
17696 ACLU v. CITY OF LAS VEGAS
Caucus of Labor Comms. v. City of Montgomery, 111 F.3d
1548 (11th Cir. 1997) (per curiam), the Eleventh Circuit con-
sidered the constitutionality of a Montgomery, Alabama pol-
icy of banning tables from city sidewalks. The court held that
this policy regulated expressive activity. Id. at 1550; see also
One World One Family Now v. City of Miami Beach, 175
F.3d 1282, 1286 (11th Cir. 1999) (“[O]ur precedent estab-
lishes that tables used to distribute protected literature come
within the protection of the First Amendment.”).
In a case analogous to the one at bar, a district judge in our
circuit came to the same conclusion. One World One Family
Now, Inc. v. Nevada, 860 F. Supp. 1457 (D. Nev. 1994).
Plaintiffs in One World, nonprofit organizations, were prohib-
ited from placing tables, chairs, umbrellas, boxes, and signs
on public sidewalks adjacent to Las Vegas Boulevard. Id. at
1460. They wished to use these items to sell T-shirts with
political, religious, philosophical, and ideological messages.
Id. In a thoughtful opinion, the district court granted plain-
tiffs’ motion for a preliminary injunction against the ban on
tabling, analogizing plaintiffs’ use of tables to the use of
newsracks by newspaper publishers to disseminate protected
speech. Id. at 1462-63. The district court held “that use of por-
table tables as a means of disseminating message-bearing T-
shirts is entitled to First Amendment protection.” Id. at 1462.
The court also found that the plaintiffs’ use of signs facilitated
speech falls within the ambit of the First Amendment’s protection. In Int’l
Soc’y for Krishna Consciousness, Inc. v. Rochford, 585 F.2d 263, 270 (7th
Cir. 1978), the court held that a restriction on erecting tables in an airport
did not facially restrict First Amendment activity. Plaintiffs had not chal-
lenged the regulation. Id. In Int’l Caucus of Labor Comms. v. City of Chi-
cago, 816 F.2d 337, 339 (7th Cir. 1987), the Seventh Circuit assumed that
plaintiffs’ tabling activities were protected speech, stating that “[t]here has
been no contention that plaintiffs’ activities are not protected by the First
Amendment,” and invoking the time, place, and manner test. The court
upheld the tabling regulation because plaintiffs did not plead any facts to
demonstrate its invalidity. Id.ACLU v. CITY OF LAS VEGAS 17697
their message and was protected by the First Amendment. Id.
at 1463.
[9] By contrast, the district court denied plaintiffs’ motion
for a preliminary injunction against the ban on chairs, umbrel-
las, and boxes. As the court explained,
[t]he use of tables on public sidewalks is protected
only to the extent that its use “facilitates” the exer-
cise of expressive activities. For example, placing a
table on a public sidewalk to sell ice cream is not
entitled to protection under the First Amendment
because the table’s use in this context is not for
expressive purposes. In the case at bar, the use of the
tables clearly facilitates the dissemination of Plain-
tiffs’ message because it allows Plaintiffs to display
their message-bearing T-shirts to the public.
In contrast, the chairs, umbrellas, and boxes do
not possess a similar nexus to the facilitation of
Plaintiffs’ message. Plaintiffs have failed to demon-
strate how these items are used to facilitate their
message other than to provide comfort and conve-
nience of vendors who attend to the tables. . . . Con-
sequently, the Court finds that it is unlikely that
Plaintiffs will succeed in demonstrating that the use
of chairs, umbrellas, and boxes on public sidewalks
should be characterized as “expressive” and there-
fore entitled to First Amendment protection.
Id. (citation omitted).
[10] The district court’s reasoning in One World is persua-
sive. We hold that the erection of tables in a public forum is
expressive activity protected by our Constitution to the extent
that the tables facilitate the dissemination of First Amendment
speech. We agree that use of portable tables is analogous to
access to newsracks—similarly temporary structures used to
17698 ACLU v. CITY OF LAS VEGAS
disseminate speech-related materials—which is protected by
the First Amendment. See City of Lakewood v. Plain Dealer
Publ’g Co., 486 U.S. 750 (1988); Honolulu Weekly, 298 F.3d
1037. To the extent LVMC § 11.68.100(H) prohibits erecting
tables that are used to facilitate the dissemination of protected
speech, it is an infringement of First Amendment rights.
There is no genuine issue of material fact as to whether
Plaintiffs sought to erect a table in the Fremont Street Experi-
ence to facilitate protected First Amendment activity. In Octo-
ber, 2000, ACLU members set up a table in the Fremont
Street Experience, on which they placed petitions and from
which they hung a banner with the ACLU logo. Plaintiffs
were not selling ice cream from the table; rather they were
attempting to use the table to facilitate their expressive activi-
ties. Security officers forced the members to remove the table.
In prohibiting these members from using their table, Defen-
dants were regulating protected speech. However, not all limi-
tations on free speech are impermissible. Plaintiffs argue that
the tabling ordinance is unconstitutional because it regulates
their expressive conduct in violation of the Equal Protection
Clause of the Fourteenth Amendment. We consider that claim
in light of our conclusion that the ordinance applies to expres-
sive activity.
2.
[11] Because we hold that the tabling ordinance regulates
First Amendment speech in a traditional public forum, any
distinctions the ordinance draws must be finely tailored to
serve the substantial interests of the City. Carey, 447 U.S. at
461-62. Las Vegas’s tabling ordinance contains an exception
for labor-related speech. See LVMC § 11.68.100. Plaintiffs
argue that this exception renders the tabling ordinance uncon-
ACLU v. CITY OF LAS VEGAS 17699
stitutional because it violates the Fourteenth Amendment’s
Equal Protection Clause. We agree.18
[12] The exception for labor-related speech is indistin-
guishable from the labor exemptions struck down by the
Supreme Court in Police Dep’t v. Mosley, 408 U.S. 92 (1972),
and Carey v. Brown, 447 U.S. 455 (1980). In Mosley, the
Court considered a Chicago city ban on picketing near
schools, which contained an exception for labor picketing.
Addressing the plaintiff’s claim that this exception violated
his equal protection rights, the Court found that “[t]he central
problem with Chicago’s ordinance is that it describes permis-
sible picketing in terms of its subject matter.” Id. at 95. It
“thus slips from the neutrality of time, place, and circum-
stance into a concern about content. This is never permitted.”
Id. at 99 (footnote, alteration, and internal quotation marks
omitted).
Similarly, in Carey the Court considered an Illinois statute
that banned the picketing of residences, but contained an
exception for labor-related picketing. The Court found that
the statute “discriminates between lawful and unlawful con-
duct based upon the content of the demonstrator’s communi-
cation. On its face, the Act accords preferential treatment to
the expression of views on one particular subject; information
about labor disputes may be freely disseminated, but discus-
sion of all other issues is restricted.” Carey, 447 U.S. at 460-
61 (footnote omitted). The Court held that the statute ran
afoul of the Fourteenth Amendment’s guarantee of equal pro-
tection of the laws for the same reasons it articulated in Mos-
ley. Id. at 461.
[13] Mosley and Carey are directly on point. We affirm the
18
We express no view as to whether the tabling ordinance would be a
constitutionally invalid restriction on the time, place, and manner of Plain-
tiffs’ free speech in a traditional public forum in the absence of the labor
exemption.
17700 ACLU v. CITY OF LAS VEGAS
district court’s holding that the City’s tabling ordinance, as
applied to Plaintiffs, violates the Equal Protection Clause.
3.
[14] We decline to hold, however, that the tabling ordi-
nance is facially unconstitutional. On its face, the ordinance
does not regulate expressive activity. In ACLU I, we noted
“that tables often are used in association with core expressive
activity,” 333 F.3d at 1108 n.15, but suggested that Plaintiffs’
tabling claim would benefit from further exploration of the
factual record on remand, id. at 1108. Plaintiffs chose not to
submit additional evidence. Although the record is suffi-
ciently clear for us to hold that the tabling ordinance is uncon-
stitutional as applied to Plaintiffs’ expressive activities,
nothing in the record indicates that tables are used in the Fre-
mont Street Experience for expressive purposes with enough
frequency to support Plaintiffs’ facial challenge to the ordi-
nance. Plaintiffs have not argued that the tabling ordinance is
facially invalid when applied to nonexpressive conduct. We
therefore affirm the district court’s ruling that LVMC
§ 11.68.100(H) is facially constitutional.19
IV.
We hold that Las Vegas’s solicitation ordinance is facially
unconstitutional. The ordinance regulates protected speech
based on its content but is not the least restrictive means of
furthering a compelling government interest. It therefore is an
impermissible restriction on First Amendment activity. We
also hold that the City’s tabling ordinance is unconstitutional
19
Plaintiffs also claim that the district court abused its discretion in
denying them leave to amend their complaint to challenge the City’s ordi-
nance prohibiting parades in the Fremont Street Experience. See LVMC
§ 11.68.100(C). Plaintiffs sought to amend on remand after our decision
in ACLU I. In light of the circumstances surrounding this proposed amend-
ment, we hold that the district court did not abuse its discretion in denying
Plaintiffs’ motion.
ACLU v. CITY OF LAS VEGAS 17701
as applied to Plaintiffs, to the extent that it regulates the use
of tables to facilitate the dissemination of protected speech.
The ordinance contains an exception for labor-related tabling
in violation of the Equal Protection Clause of the Fourteenth
Amendment. We remand to the district court with instructions
to issue the appropriate injunctions.
In appeal No. 05-15667, we REVERSE the judgment of
the district court. In appeal No. 05-15767, we AFFIRM the
judgment of the district court. REMANDED.