‘Free Speech’ Doesn’t Mean ‘Trespass’

Doug French

Is there an organization more un-American than the American Civil Liberties Union (ACLU)?

The organization’s name contains all the right words. But no matter what its title, the ACLU is the most anti-private property organization in America (other than the judicial branch of the federal government, of course).

The ACLU constantly files lawsuits against property owners who attempt to protect their property rights. Many of these lawsuits are supposedly to protect free speech rights.

But can there be a right to freedom of speech unless that right is firmly based on property rights? Economist Murray Rothbard asked and answered that question simply and succinctly in his book Power and Market. “Where does a man have this right [free speech]? He certainly does not have it on property on which he is trespassing. In short, he has this right only either on his own property or on the property of someone who has agreed, as a gift or in rental contract, to allow him on the premises.”

The ACLU has been especially busy in Las Vegas and Salt Lake City in recent years, filing suit against property owners who have rightfully attempted to control what can be said, or what written information can be handed out, on their properties.

This summer Salt Lake City closed a deal with The Church of Jesus Christ of Latter-Day Saints (LDS) wherein the church now controls an easement on a downtown Salt Lake pedestrian block adjacent to the LDS temple. In April 1999 the church paid the city $8.1 million for one block of Main Street. As part of the sale agreement the church agreed to the city’s demand for public access to the block, but asked that “the church be allowed to restrict smoking, sunbathing, bicycling, ‘obscene’ or ‘vulgar’ speech, dress or conduct on the plaza.” The ACLU filed suit back in 1999, claiming that the restrictions were unconstitutional. A federal appeals court judge agreed with them.

Now the ACLU has filed suit again, claiming that the city showed a preference for one religion over another when it sold the easement (granting public access) to the church. What more does the church have to do? It spent over eight million dollars buying the property. It purchased the easement for $388,000 plus two acres of land and the church can’t dictate what sorts of behavior are allowed on their property?

The Venetian Resort Hotel and Casino in Las Vegas owns the sidewalk fronting its property on Las Vegas Boulevard. In March 1999 when 1,300 Culinary Union members clogged the sidewalk, protesting owner Sheldon Adelson’s planned opening as a non-union resort, the hotel demanded that police arrest the picketers for trespassing. But then-Clark County District Attorney Stewart Bell instructed police to refuse. The hotel then sued Clark County and the Las Vegas Metropolitan Police Department, and the ACLU of Nevada intervened in the case on behalf of the union.

The Venetian subsequently lost its case in District Court and again on appeal to the 9th Circuit Court of Appeals. Mr. Adelson invests $1.5 billion and though he clearly owns the sidewalk at the front of his property, he can’t kick protestors and smut peddlers off of it?

This summer the City of Las Vegas lost a court battle over whether the city and the Freemont Street Experience could bar commercial solicitors from the Freemont Street Experience property in downtown Las Vegas. The ACLU of Nevada sued the city and the Freemont Street Experience back in 1997. The Freemont Street Experience, which is funded by the downtown casino property owners, invested $70 million to build the canopied pedestrian mall. But, the group is not allowed to keep unwanted solicitors off of their property?

Thomas Jefferson wrote; “The right to procure property and to use it for one’s own enjoyment is essential to the freedom of every person, and our other rights would mean little without these rights of property ownership.”

Justice Hugo Black, a staunch free speech advocate, believed that freedom of speech was grounded in private property rights. “We have a system of property,” Black wrote, “which means that a man does not have a right to do anything he wants anywhere he wants to do it.”

Property rights provide the foundation for all other rights. There can be no freedom of speech without property rights. If organizations like the ACLU continue to run amok, supported by the federal judiciary, our rights will be lost forever. 

Doug French is executive vice president of a Southern Nevada bank and a policy fellow of the Nevada Policy Research Institute.