Meeting the Challenges of the Main Street Plaza Controversy
Ross C. "Rocky" Anderson
Salt Lake City Mayor
Before I was mayor, Salt Lake City sold a block of Main Street to The Church of Jesus Christ of Latter-day Saints. (For ease of reference, and pursuant to the protocol of The Church of Jesus Christ of Latter-day Saints, that organization will be referred to hereafter as "The Church.") The final purchase/sale agreement, in the form of a "Special Warranty Deed" provided for (1) the retention by the City of an easement for the purposes of pedestrian access and passage only and (2) authority by The Church to deny access to those who engage in certain activities, including "loitering," "assembling," "partying," "demonstrating," "picketing," "distributing literature," "soliciting," "sunbathing," and "carrying firearms," as well as those who engage in "offensive," "indecent," "obscene," "vulgar," or "disorderly speech, dress or conduct."
Several people and organizations filed a lawsuit against the City, claiming the transaction violated the First Amendment to the United States Constitution. The matter was decided by the United States Court of Appeals for the Tenth Circuit after I became mayor. The Court held that the First Amendment does not permit the City to retain the easement and, at the same time, to permit vast restrictions on conduct and other expressive activities.
With that opinion, I was faced with an immense dilemma. The parties agreed to one term that was crucial to The Church (which paid $8.2 million for the land) and another term that was crucial to the City – yet they could not both constitutionally be given effect. Either the restrictions or the easement had to go.
My view has always been that, to the extent constitutionally possible, people and institutions should abide by their agreements. However, the sticking point here is that the essential terms of the agreement cannot constitutionally co-exist.
I initially proposed that we resolve the matter by defining the City's easement as being located on about 10% of the Plaza, along the sidewalk furthermost from Temple Square. With that proposal, The Church would have sole control of 90% of the Plaza, in the same way any private property owner has control over its property. Also, "time, place, and manner" restrictions would be imposed on conduct on the City's easement. (That proposal can be found at www.slcgov.com.)
That proposal would have required minor compromises on both sides, with most of the restrictions on disruptive conduct being enforced across the Plaza and the City retaining an easement. However, the proposal was not acceptable to The Church, several members of the City Council seemed unsupportive, and, although the ACLU had earlier expressed support for the proposal, one of its lawyers later stated that the City might be sued if we did not allow some protests across the entire length of the Plaza.
Although I had been adamant that the City's easement must be retained, it was apparent to me that no resolution was possible as long as the easement existed because First Amendment rights applying to any such easement would permit disruptions and offensive conduct that everyone involved in the initial deal intended to prohibit.
The earlier words of Reverend Tom Goldsmith of the First Unitarian Church echoed in my mind: "If we can't find a solution to this problem, how can we expect peace to be reached in Jerusalem?" I strove to reach a resolution that was fair and which would benefit our community for many years to come.
Although I favor the earlier proposal defining the physical dimensions of the City's easement and applying constitutional time, place and manner restrictions to it, I have developed another proposal that appears to have a better chance of acceptance by The Church and the City Council. My responsibility was to find a solution, even if it meant that my earlier demands that the City retain an easement were not met.
The second proposal provides that the City would exchange the easement for (1) land owned by The Church near the Sorenson Center in the Glendale area and (2) a pledge by the Alliance for Unity to raise $5 million for the construction of a community center adjacent to or near the Sorenson Center. Although the second proposal will not continue the legally-enforceable guarantee of pedestrian access, representatives of The Church have previously stated that access will be allowed. Also, opportunities for free expression abound on all of the public sidewalks near the Plaza, Temple Square, and the Conference Center.
This has been a difficult, complicated challenge. But, as a community, we will be stronger and more unified if we can kindly and compassionately confront our differences and identify a solution that will bring peace to our City. With greater understanding of the facts leading to this dispute – and to the solutions I have proposed – this community can now come together in greater peace and harmony, more respectful of our diversity and of each of each other.