Las Vegas police arrested a journalist Saturday who was video recording a protest against President Donald Trump, demanding that he release his tax forms.
Police say KLAS news videographer Nebyou Solomon was arrested for trespassing and obstructing because he was standing on the private property of the Fashion Show Mall, refusing to leave when ordered to do so, then refusing to identify himself.
But a short video of his arrest shows he was standing on a sidewalk outside the mall, which is generally considered public property because it is paid for and maintained by tax dollars.
However, Las Vegas has a long-standing habit of allowing businesses to privatize the sidewalks in front of their establishments.
But a court ruled almost two decades ago that just because these sidewalks are private does not mean they are not public forums to conduct First Amendment-related activities.
And that exactly is what Solomon was doing when he was standing across the street from about 250 protesters, who were standing on the sidewalk in front of the Trump International Hotel, which evidently is not owned by the president.
In 2001, the Ninth Circuit of Appeals ruled that private sidewalks in Las Vegas are considered public forums just like public sidewalks because both are indistinguishable from one another.
According to a Metropolitan News Empire article from 2001:
The sidewalk in front of the Venetian Casino Resort on the Las Vegas Strip, constructed privately by the hotel to replace a public sidewalk that existed on the site when it housed the old Sands hotel, is a public forum for First Amendment purposes, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The divided panel handed a victory to local unions which have picketed the non-union hotel, local authorities who have refused to interfere with the picketing, and the ACLU of Nevada.
The Venetian argued that the sidewalk is not a public forum, citing U.S. Supreme Court decisions regarding pedestrian malls and enclosed shopping centers. But Judge Procter Hug Jr., joined by Chief Judge Mary M. Schroeder, said the cases were distinguishable.
“The historically public character of the Venetian’s sidewalk, the sidewalk’s continued use by the general public, the fact that the sidewalk is connected to and virtually indistinguishable from the public sidewalks to its north and south, and the dedication of the sidewalk to public use all serve to distinguish this case from the two Supreme Court cases…,” Hug wrote.
The First Amendment not only guarantees the right to assemble peacefully in demonstration, but also the right to freedom of the press, so there should be no reason why charges against Solomon should not be dropped before the case heads to trial.
Unfortunately, Las Vegas Metropolitan police are clueless about the 2001 decision because this is the statement they issued after Solomon’s arrest:
“The LVMPD is committed to transparency and creating and maintaining public trust. We work with our local media partners, including KLAS TV on a routine basis. Today, during what was otherwise a peaceful protest in front of the Trump International Hotel, Mr. Nebyou Solomon was arrested.
While Mr. Solomon was working in an official capacity as a member of the media, he was recording the event from what was determined to be private property which belongs to the Fashion Show Mall. Fashion Show Mall security officers requested that he not film from their property and when he refused, notified LVMPD officers who were already present at the event. Upon contact by officers, Mr. Solomon was uncooperative and refused to provide his personal identifying information, in violation of NRS 171.123. Mr. Solomon was told he would be issued a misdemeanor citation for Trespass to which he replied that he would not sign – a violation of NRS 171.177. Because of his refusal, Mr. Solomon was arrested and transported to the Clark County Detention Center where he was booked accordingly.”
This is what KLAS General Manager Lisa Howfield had to say about the arrest:
“Today, one of our employees, an experienced and respected photojournalist Neb Solomon, was arrested by Metro police officers, charged with trespassing and obstruction. Neb was doing his job, carrying out an assignment given to him by his news managers, covering a news event of considerable interest to the community. We support Neb and the rights of all journalists to report from the scene of newsworthy events. While some details surrounding this arrest are still being gathered, we are fully prepared to take the appropriate steps based on the facts and governing laws.”
And the ACLU has also weighed in, pointing out that it has fought this issue for several decades with the courts agreeing that private sidewalks are public forums.
According to the Las Vegas Review-Journal:
Nevada’s ACLU has litigated similar public forum issues for more than two decades, according to ACLU Nevada legal director Amy Rose, including areas in question on the Fremont Street Experience and sidewalks in front of The Venetian.
“The courts have consistently found that sidewalks on Fremont and on parts of the Strip are traditionally a public forum,” Rose said.
But according to ACLU Nevada, the immediate issue following Solomon’s arrest is the obstruction of the freedom of the press.
“It is so, so disturbing that Metro decided to arrest a journalist who was doing his job by filming a political protest,” Rose said. “And the facts as we understand them, this was an assault to his constitutional rights.”
So hopefully, KLAS will pursue this matter in civil court once the criminal charges are dismissed or beaten because if the previous lawsuits have not sent the message to police that private sidewalks are public forums, then perhaps this one will.