McAllister v. Clark CountyMcAllister v. Clark County
A newly enacted ordinance in Clark County, Nevada, makes it a misdemeanor to stop, stand, or do something to cause someone to stop or stand along the pedestrian-bridge areas that span the resort corridor of the iconic Las Vegas Strip. Two local residents sue to have the law declared unconstitutional and enjoin its application: Brandon Summers, a violinist who plays on the bridges for tips, and Lisa McAllister, who requires the use of a wheelchair and can‘t always control when she needs to stop. Together, Summers and McAllister claim that the ordinance is facially vague under the
I grant the County‘s motion to dismiss McAllister‘s ADA claim because she lacks standing to bring it. But I deny all of the parties’ other requests for relief because this case remains in its infancy and too much depends on a factual record that hasn‘t yet been developed through discovery. So this case moves forward on the plaintiffs’ facial First and Fourteenth Amendment claims, Summers‘s as-applied free-speech claim, and their state-law analogs.
Background1
A. The ordinance
In January 2024, the Clark County Commission enacted
The ordinance‘s “purpose” provision justifies the new restriction as a means to “ensure public safety on the pedestrian
The ordinance states that banning all stopping at all times is necessary because “it is impossible to know in advance when stopping will result in criminal or otherwise dangerous conditions.”8 Because “of the physical nature of the bridges, by the time such conditions exist, it would often be too late for law enforcement or other first responders to intervene, mitigate, render aid, rescue[,] or take other actions necessary as a result of crime and other safety issues.”9 The ordinance further recites that the pedestrian bridges “represent only six percent of the total linear feet of the public sidewalk available to pedestrians within the Las Vegas Strip,” so there is ample space—the remaining 94% of the sidewalk system—for people to engage in First Amendment activity elsewhere in this public space.10
At the Commission meeting during which the ordinance was enacted, the County undoubtedly anticipated its application to people engaged in First Amendment activity.11 County counsel Lisa Logsdon averred that the ordinance doesn‘t impact street performers because they “can still do all of their street performing things down on the street level or if they‘re continuing to walk while they do any First Amendment activity” on the pedestrian bridges.12 The Commission expressed the intention that the ordinance be content neutral and apply equally to street performers and show girls.13 Logsdon also clarified that a person intending to cause another person to stop would be violating the ordinance only if both people were on the bridge, so “if there is picketing or different activity going on at the street level and somebody stops on the bridge, that is not covered by the ordinance.”14 The plaintiffs interpret Logsdon‘s comment to mean that people who stop on a bridge to watch protesters below will not be cited under the law, though that appears inconsistent with the statute‘s complete ban on stopping or standing.15
After enacting
B. This lawsuit
McAllister and Summers, represented by the American Civil Liberties Union of Nevada, filed this suit a month after the ordinance was enacted. They allege that the law is impermissibly vague in violation of the
The plaintiffs assert that the ordinance is facially overbroad in violation of the
McAllister adds that
C. Pending motions
Plaintiffs move for a temporary restraining order and preliminary injunction prohibiting the County from enforcing
After oral argument and briefing on the County‘s first motion to dismiss concluded, the County filed a second motion to dismiss, this time under
Analysis
A. Motion-to-dismiss standards
District courts employ a two-step approach when evaluating a complaint‘s sufficiency on a
A challenge to a plaintiff‘s Article III standing is properly brought under
B. McAllister‘s ADA claim must be dismissed for lack of standing and for failure to state a plausible claim.
Article III of the Constitution “confines the federal judicial power to the resolution of ‘cases’ and ‘controversies.‘”44 This limitation “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.”45 “One of the essential elements of a legal case or controversy is that the plaintiff have standing to sue,”46 which “ensures that
To demonstrate Article III standing, a plaintiff must “have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”48 The injury must be “concrete and particularized,” as well as “actual or imminent, not conjectural or hypothetical.”49 To be particular, “it must affect the plaintiff in a personal and individual way.”50 To be concrete, the injury “must actually exist.”51 To establish traceability, the plaintiff must show that there is “a causal connection between the injury and the conduct complained of.”52 To do so, “[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute‘s operation or enforcement.”53 “In the absence of contemporary enforcement,” the Supreme Court has “said that a plaintiff claiming standing must show that the likelihood of future enforcement is ‘substantial.‘”54
The Ninth Circuit has recognized that the Supreme Court instructs courts “to take a broad view of Article III standing in civil rights cases, especially where, as under the ADA, private enforcement suits ‘are the primary method of obtaining compliance with the Act.‘”55 Under that broad view, to establish an actual and imminent injury for deterrence standing, a plaintiff need only show that she “has visited a public accommodation on a prior occasion and is currently deterred from visiting that accommodation by accessibility barriers.”56 It has also clarified that, to obtain injunctive relief, “a plaintiff must establish a sufficient future injury by alleging that [she is] either currently deterred from visiting the place of public accommodation because of a barrier, or that [she was] previously deterred and that [she] intend[s] to return to the place of public accommodation, where [she is] likely to reencounter the barrier.”57
McAllister argues that she easily meets the Ninth Circuit‘s formulation of deterrence standing under the ADA. She contends that she believes
In ADA cases involving discriminatory government policies, the barrier resulting from those policies has been equally unavoidable, causing injury even if a plaintiff hasn‘t yet been denied meaningful access to public services. For example, in Crowder v. Kitagawa, the Ninth Circuit considered Hawaii‘s mandatory 120-day quarantine of all carnivorous animals entering the state including guide dogs used by people with visual impairments and found that, without reasonable modification, that requirement violated the ADA.60 Every dog coming into the state was subject to the quarantine under the Hawaii law, so all visually impaired people planning to enter the state could be certain that their guide dogs would be quarantined.
McAllister, in contrast, has not personally encountered any barrier to using the pedestrian bridges that cross the Strip, and it‘s entirely speculative that she ever will. The series of causal events that must unfold before McAllister would indeed face a barrier to using the bridges shows how much more speculative her situation is than other ADA plaintiffs who are physically blocked from accessing the entities they sue: McAllister (1) must go to the Strip; (2) need to cross a bridge; (3) then get tired, encounter a wheelchair malfunction, or experience limited visibility; (4) causing her to stop on that bridge; (5) an officer needs to witness her stop for one of those things; then (6) approach her and tell her to move on; and (7) cite or arrest
While this chain of events might be possible, McAllister has not shown that it is plausible, let alone actual or imminent. She has also not shown that the likelihood of future enforcement against her is substantial because the chain of events is too attenuated to make any fear of enforcement reasonable. And the Ninth Circuit‘s guidance on deterrence standing isn‘t applicable here because the events that McAllister believes deter her from visiting the Strip are conjectural at best. This is an issue that doesn‘t plague the other standing cases that McAllister cites in support of her claim: physical barriers exist or they don‘t, and they bar access to public services or they don‘t. And extending the Ninth Circuit‘s deterrence-standing doctrine to these circumstances would stretch it beyond the limits of Article III. So because McAllister can‘t sufficiently allege that she might actually encounter the injury she fears, she lacks standing to bring her ADA claim.61
2. Even if McAllister could establish standing, she doesn‘t state a claim.
Though standing should be the end of this inquiry, I acknowledge that McAllister‘s ADA challenge to a facially neutral criminal ordinance that hasn‘t yet been employed to cite or arrest people with disabilities appears to be a novel legal theory, relying on an assertion of standing that hasn‘t yet been tested in the appellate courts. So I address a second defect in this claim: even if McAllister has standing, she fails to state an ADA claim because she doesn‘t allege that
a. To state a disparate-impact ADA claim, a plaintiff must show that the law disproportionately burdens her due to her disability.
To prevail under Title II of the ADA, a “plaintiff must show that: (1) [s]he is a qualified individual with a disability; (2) [s]he was either excluded from participation in or denied the benefits of a public entity‘s services, programs, or activities, or was otherwise discriminated against by the public entity; and (2) this exclusion, denial, or discrimination was by reason of [her] disability.”62 “A city sidewalk is . . . a service, program, or activity of a public entity within the meaning of Title II.”63 And “[a]n individual is excluded from participation in or denied the benefits of a public program ‘if a public entity‘s facilities are inaccessible to or unusable by individuals with disabilities.‘”64 “A disability-discrimination claim may be based on ‘one of three theories of liability: disparate treatment, disparate impact, or the failure to make a reasonable accommodation.‘”65
McAllister‘s claim is rooted in the disparate-impact theory.66 She alleges that she “is disabled due to a spinal injury and uses a manual wheelchair to travel,”67 and the County doesn‘t dispute that she qualifies as a person with a disability under Title II.68 The County primarily takes issue with her allegation that
To establish a disparate-impact ADA claim, the plaintiff must show that a facially neutral law “fall[s] more harshly on one group than another.”70 The enforcement of that law must burden people with disabilities “in a manner different and greater than it burdens others.”71 McAllister, however, hasn‘t alleged anything of the sort. She states that it is enough for her to say that the law burdens her ability to cross the Strip because of her disability. And she argues that the County‘s contention that she hasn‘t shown a unique need to stop is at best a “factual dispute” because she “has alleged that she must stop due to her disability.”72
But McAllister glosses over the finer point that the County is making: even accepting her allegations as true, she has not alleged facts showing that her need to stop is unique or that the law disproportionately burdens her because of her disability.
The Crowder case illustrates the distinction between McAllister‘s claim and a properly supported one. The panel held that Hawaii‘s facially neutral quarantine law violated the ADA because it “burden[ed] visually impaired persons in a manner different and greater than it burden[ed] others“: “because of the unique
McAllister tries to analogize her situation to Crowder, arguing that, “just as the visually impaired have a unique dependence on guide dogs, those unable to walk have a unique dependence on mobility devices.”74 This is true, but the way that the government regulation at issue interfered with that dependence in Crowder was materially different. Hawaii‘s quarantine effectively banned the use of guide dogs for 120 days anytime someone traveled to Hawaii. But here, no government regulation or persistent barrier prevents a person from using a wheelchair on pedestrian bridges or any city sidewalk. McAllister alleges only that, because she uses a wheelchair, her reasons for stopping on a bridge in violation of
C. Plaintiffs have pled plausible First and Fourteenth Amendment facial challenges.
The plaintiffs assert facial challenges against the County‘s ordinance under the
Analysis of facial First Amendment and vagueness challenges proceeding under the Supreme Court‘s overbreadth doctrine advances in several steps. First, the court asks whether the ordinance at issue implicates the First Amendment at all.80 Second, it must decide whether the ordinance burdens “a substantial amount
1. At this stage, the plaintiffs have adequately alleged, and the County appears to concede, that the ordinance impacts First Amendment activity.
The plaintiffs allege that
The County “concede(s) for the purposes of [its] motion [to dismiss] that ‘stopping’ and/or ‘standing’ may implicate expressive conduct in certain situations depending on the context.”87 That concession should be sufficient at this stage for me to move past this step. But the County at various points in its briefs also insists that ”
a. A law burdens First Amendment conduct if it is narrowly and specifically directed at conduct commonly associated with expression.
“Not every ordinance that burdens expressive conduct implicates the First Amendment.”90 In Arcara v. Cloud Books, Inc., the Supreme Court recognized at least two scenarios in which restrictions on conduct implicate the First Amendment. The first is when the government “regulat[es] conduct that has an expressive element“; for example, when the government bans sleeping in parks, but demonstrators contend that sleeping in the park is a crucial expressive component of a protest concerning “the plight of homeless people.”91 The second concerns statutes that, “although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities.”92 The High Court has also recognized that a statute may “say[] nothing about speech on its face” but can still be subject to First Amendment scrutiny if “it restricts access to traditional public fora.”93
Two Ninth Circuit cases illustrate how these scenarios might manifest: Roulette v. City of Seattle and Nunez by Nunez v. City of San Diego. In Roulette, a Ninth Circuit panel rejected a facial challenge to Seattle‘s ban on sitting or lying down on certain public sidewalks during the daylight hours.94 It noted the judiciary‘s “ordinary reluctance to entertain facial challenges” and distilled from the case law “[t]he lesson . . . that a facial freedom-of-speech attack must fail unless, at a minimum, the challenged statute ‘is directed narrowly and specifically at expression or conduct commonly associated with expression.‘”95 Pointing out that “homeless people remain free to beg on Seattle‘s sidewalks,” “[v]oter registrars may solicit applications for the franchise,” “[m]embers of the Freedom Socialist Party may doggedly pursue petition signatures and donations or distribute educational materials[, a]nd the National Organization for Women may hold rallies or demonstrations,” the panel concluded that “sitting or lying on the sidewalk” isn‘t “integral to, or commonly associated with, expression.”96 So it rejected the facial challenge.97
At the other end of the spectrum is Nunez, in which minors and their parents
b. CCC 16.13.030 is directed at conduct commonly associated with expression.
While CCC 16.13.030 doesn‘t go quite so far as the Nunez curfew, the plaintiffs have sufficiently alleged that it imposes a permanent restriction that is substantially more impactful on expressive conduct than the ordinance in Roulette. Plenty of performers, petition-gatherers, and those attempting to engage with passersby would find it overly burdensome to keep moving while doing so. The County‘s insistence that such First Amendment activity can be done on the move ignores the temporal limitations placed on the ability to speak and to actively listen. While a protestor may be able to march in protest, she could not stop to have someone sign a petition or to accept a donation or tip, play a stationary instrument like a piano or an amp-connected guitar,104 or engage in one-on-one conversation with someone who wants to learn more about a cause without parading that person up and down the bridge. Just as the curfew in Nunez had “an integral effect on the ability of minors to express themselves,”105 CCC 16.13.030‘s prohibition on stopping and standing burdens individuals’ ability to engage in at least some protected activity.
What further distinguishes this ordinance from the public-sidewalk restriction
“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”109 An ordinance that prohibits a speaker from encouraging passersby to stop and listen or engage in a dialogue has real First Amendment implications. It limits the speaker to fleeting conversations and robs him of the likely purpose of engaging in protected speech or performance: to have someone stop and listen. It would greatly diminish the capacity for one-on-one communication—a medium lauded by the Supreme Court as “the most effective, fundamental, and perhaps economical avenue of political discourse.”110 And as the pedestrian bridges form part of the sidewalk system on the iconic Las Vegas Strip, until the County proves otherwise I assume for purposes of this motion that they constitute traditional public fora111 and thus “remain one of the few places where a speaker can be confident that he is not simply preaching to the choir.”112 In sum, I find that the plaintiffs have sufficiently alleged that the ordinance as a whole
implicates the First Amendment because, like the Nunez curfew law, it restricts conduct integral to, or commonly associated with, speech and expression.
To pursue “a facial challenge to the overbreadth and vagueness of a law,” a court must “determine whether the enactment reaches a substantial amount of constitutionally protected conduct.”113 “The Supreme Court has said that where the facial challenge involves conduct other than speech itself, the ordinance‘s overbreadth” must be both real and substantial when compared to its “plainly legitimate sweep.”114 Essentially, “there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court for it to be facially challenged on overbreadth grounds.”115 The “mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.”116 To perform this analysis, the parties and the court “must determine a law‘s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other.”117 The burden is on the plaintiff to demonstrate “from the text of [the law] and from actual fact” that substantial overbreadth exists.118
The County doesn‘t mention these standards in its motion to dismiss the plaintiffs’ facial challenges. Instead, it cites authority generically stating that facial challenges are disfavored.119 It contends that the hypotheticals concocted in this case to support the facial nature of plaintiffs’ claims are “egregious,” pointing specifically to McAllister‘s allegations that she has been deterred from using the pedestrian bridges because she may be cited if she has to stop due to her disability.120 But McAllister‘s allegations relate only to her ADA claim, which is not brought as a “facial” challenge (the facial/as-applied distinction doesn‘t map to ADA claims in the same way it does to First Amendment claims) and has no relation to the facial challenges that the plaintiffs pursue on First and Fourteenth Amendment grounds.121 The plaintiffs also fail to elaborate on the balance between applications of the ordinance that hinder constitutionally protected expression versus those that do not. They instead insist that they have alleged that the ordinance “reaches a substantial amount of constitutional activity”122 and that is enough.
Some district courts, when faced with a motion to dismiss a facial challenge based on the overbreadth doctrine, have even determined that “weighing [a law‘s] legitimate applications . . . against its potentially illegitimate applications would . . . benefit from a factual record,” so any determination at the motion-to-dismiss stage would be premature.124 I am persuaded by this reasoning and find that, to determine the scope of the law‘s applications, development of a factual record and more robust briefing on the question is required. So I deny the County‘s motion to dismiss plaintiffs’ facial challenges to CCC 16.13.030 without prejudice to its ability to renew those arguments with the proper procedural vehicle after discovery has concluded.
Because I deny the County‘s motion on this threshold issue, I decline to analyze the merits of the plaintiffs’ vagueness challenge.125 My analysis of plaintiffs’ vagueness claim changes significantly if I find that the ordinance doesn‘t burden a substantial amount of speech; in that instance, I would analyze whether the law is vague in all of its applications. But that standard is relaxed if the ordinance does substantially burden speech. To engage in either analysis at this stage without the ability to adequately compare the constitutional and unconstitutional applications of the law would just be spitballing. But it‘s enough for purposes of the instant motion that the plaintiffs have sufficiently alleged that the law is vague (a finding that the County doesn‘t really contest). So I deny the County‘s motion to dismiss plaintiffs’ facial vagueness challenge.
Though I decline to undertake a vagueness analysis at this stage, I do consider the merits of Summers‘s First Amendment claim because he mounts both a facial and an as-applied challenge.126 Summers alleges that he‘s a street performer who solicits tips on the pedestrian bridges and has been deterred from doing so for fear of prosecution under the new ordinance.127 The County responds that the ordinance is a valid, content-neutral restriction on expressive activity that is narrowly tailored to its purpose of improving public safety on the bridges.128
While I‘ve found that the plaintiffs have sufficiently alleged that the ordinance at least implicates constitutionally protected activity, “to say [that an] ordinance presents a First Amendment issue is not necessarily to say that it constitutes a First Amendment violation.”129 Legislative bodies “may sometimes curtail speech when necessary to advance a significant and legitimate state interest.”130 “Expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions.”131
1. CCC 16.13.030 is subject to intermediate scrutiny.
The parties appear to agree that CCC 16.13.030 is a content-neutral restriction on speech, at least for the purposes of this motion. They also agree that this is a time, place, and manner restriction to which intermediate scrutiny must be applied.132 Under that standard, a government may place restrictions on First Amendment activity so long as the restrictions “are narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.”133 “The government bears the burden of justifying the regulation of expressive activity in a public forum.”134
The County claims public safety and “safe pedestrian access” as the significant government interests that compelled CCC 16.13.030‘s adoption.135 It contends that because the Ninth Circuit and Supreme Court have recognized those interests as significant in other cases, they should be so recognized here, ending this court‘s significant-interest inquiry.136 It is true that public safety and flow of traffic are generally considered significant government interests.137 But the court‘s “inquiry does not end there, because when the government seeks to regulate expression, even incidentally, to address anticipated harms, it must ‘demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.‘”138 Courts “may not simply assume that the ordinance will always
advance the asserted state interests sufficiently to justify its abridgement of expressive activity”139; rather, they “must be persuaded that the law actually furthers the [government‘s] asserted interest.”140
Summers contends that the County has not met its burden to show that the anticipated harms it bases the ordinance on are real and not merely conjectural.141 He notes that the County hasn‘t cited a single instance in which stopping on the pedestrian bridges led to any public disorder or public-safety risk.142 The County responds that it need not wait for disaster to strike to prevent potential harm. Plus, the “purpose” section of the ordinance sufficiently explains the reasoning behind it and cites a report indicating that calls to law enforcement “for disorderly conduct on the pedestrian bridges are almost twice
But Summers disputes the import and relevancy of that data. He contends that the County‘s relied-upon statistics don‘t actually support the notion that the pedestrian bridges are more prone to public-safety concerns or “crowd crush” than any other similarly busy stretch of the Strip‘s sidewalk system, or that this ban on stopping and standing would actually alleviate any such concerns.144 Indeed, Summers asserts, that cited report acknowledges that those public-disturbance calls might not be crime-related and there is no indication that they reflect more arrests, citations, violence, or disorder on the pedestrian bridges than on the rest of the sidewalk system.145 The County offers little response to those criticisms, falling back instead on its argument that this court shouldn‘t question its supporting documentation.146
I find that Summers has sufficiently alleged that the County‘s significant interest in public safety is speculative, and the County has not met its burden at this early stage to show that it is not. The County must do more than rest on its assertion that, so long as it shouts out a traditionally recognized public interest, the court can‘t second-guess the legislative process.147 While the burden on the County is not heavy, it requires more than the County offers here.148 So I find that the County has not shown that it has a real, nonspeculative interest in restricting activity on the pedestrian bridges at this stage. That failure requires me to deny the County‘s motion to dismiss Summers‘s as-applied claim.
E. Injunctive relief is an extraordinary remedy, and the plaintiffs haven‘t shown that an order enjoining the ordinance is warranted.
A preliminary injunction is an “extraordinary” remedy “never awarded
1. Plaintiffs cannot show a likelihood of success on their facial-challenge claims because they didn‘t address the threshold substantial-burden analysis.
For the same reasons that I deny the County‘s request to dismiss plaintiffs’ facial challenges, I deny the plaintiffs’ injunctive-relief request on those claims. The plaintiffs have not adequately shown that they have a likelihood of success on the merits of those claims because they don‘t truly address whether the unconstitutional applications of CCC 16.13.030 are substantial when compared to the constitutional applications. They instead focus on whether the ordinance impacts First Amendment activity. While that‘s a necessary part of the inquiry, the plaintiffs just don‘t take that extra step to explain that the applications of CCC 16.13.030 impacting protected activity are substantial when compared to the law‘s legitimate sweep.
The Supreme Court and the Ninth Circuit have recently cautioned courts against granting injunctive relief in cases with this posture. In Tucson v. City of Seattle, the Ninth Circuit reversed the district court‘s order preliminarily enjoining a city ordinance criminalizing “writing, painting, or drawing” on public or private property without permission.152 The panel found that, “[b]y failing to inquire into the [ordinance‘s] numerous lawful applications, the district court was unable to analyze whether the number of unconstitutional applications was ‘substantially disproportionate to the statute‘s lawful sweep,‘” and thus the court erred in granting an injunction on the plaintiff‘s facial challenge.153
In Moody v. Netchoice, the plaintiff mounted facial attacks against state laws recently passed in Florida and Texas that sought to regulate content moderation on social-media platforms.154 The Eleventh Circuit upheld a preliminary injunction enjoining Florida‘s law, while the Fifth Circuit reversed a similar injunction against Texas‘s law.155 The Supreme Court vacated
As in Tucson and Moody, plaintiffs have not sufficiently focused on the threshold analysis required to frame their claims as facial challenges. They focus only on the First Amendment activity that they believe would be burdened by the law, but neither side briefed whether those allegedly impermissible burdens substantially outweigh the ordinance‘s permissible applications. In this posture and in light of the underdeveloped record on this issue, I cannot find that plaintiffs have a likelihood of success on the merits of their facial challenges, so I deny preliminary injunctive relief on those claims.
2. Summers hasn‘t shown a likelihood of success on his as-applied First Amendment claim.
Injunctive relief is not available based on Summers‘s as-applied claim either. Although the County did not meet its burden to show that the ordinance serves a significant government interest, neither has Summers shown a likelihood of success on the merits of that or any of the other intermediate-scrutiny factors. While the County has not yet shown that its stated government interest is real and not speculative, the evidence and argument that the plaintiffs present to the contrary is not so compelling that it directs a finding that the County has no support for its significant government interest in traffic safety. I am skeptical that, with further development of the record, Summers can adequately rebut the County‘s assertion that CCC 16.13.030 responds to real concerns about overcrowding on the pedestrian bridges.
Nor has Summers shown a likelihood of success on the merits of the narrow-tailoring inquiry. “For a content-neutral time, place, or manner restriction to be narrowly tailored, it must not ‘burden substantially more speech than is necessary to further the government‘s legitimate interests.‘”159 The regulation “need not be the least restrictive or least intrusive means of serving” those interests, “[b]ut the government still ‘may not regulate speech in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.‘”160 Summers contends that the ordinance isn‘t narrowly tailored because two other laws regulate much of the same conduct that CCC 16.13.030 does—one prohibits the obstruction of sidewalks, the other bans disorderly conduct that would “tend to incite a disturbance.”161 But the County
Summers hasn‘t shown a likelihood of success on the merits when it comes to the ample-alternatives prong, either. “The First Amendment does not guarantee the right to communicate one‘s views at all times and places or in any manner that may be desired.”162 The First Amendment also “does not require that individuals retain the most effective means of communication, only that individuals retain the ‘ability to communicate effectively.‘”163 The County convincingly points out that the pedestrian bridges constitute a small part of the overall sidewalk system on the Strip and that those engaging in stationary First Amendment activity can do so on the street-level sidewalks. Plus, those who can engage in speech while moving are free to continue doing so on the pedestrian bridges. Summers retorts that the pedestrian bridges hold special First Amendment value because they “provide people engaging in protected activities visibility to those passing by on the pedestrian bridge, on the grade-level sidewalks, and driving underneath the bridge,” allowing people engaging in protected activities to reach a wider audience than if they were just on the sidewalks.164 The bridges are also safer for people engaging in protected activities because they “offer a unique space away from an accidental bump or shove into adjacent traffic.”165
All of this may be true, but the First Amendment doesn‘t guarantee a speaker‘s preferred choice of venue,166 and Summers hasn‘t shown that he can‘t perform as effectively on the street-level sidewalks or reach his intended audience at other locations along the Strip. So Summers hasn‘t established a likelihood of success in rebutting the County‘s assertion that the remaining public sidewalks are an acceptable, alternative venue for his First Amendment activity. At this point, based on the arguments and limited evidence presented, I find that Summers‘s likelihood of success is at best a coin-flip—a success rate that doesn‘t merit injunctive relief.
F. The County‘s motion to stay discovery is moot.
Still pending is the County‘s motion to stay discovery pending a determination on its first motion to dismiss.167 I have now ruled on that dismissal motion, so the motion to stay discovery is technically moot. But I consider it to dispel the County‘s misguided notion that cases involving facial
Conclusion
IT IS THEREFORE ORDERED that plaintiffs’ motions for a temporary-restraining order and preliminary injunction [ECF Nos. 4 & 5] are DENIED.
IT IS FURTHER ORDERED that Clark County‘s motion to dismiss for failure to state a claim [ECF No. 9] is DENIED.
IT IS FURTHER ORDERED that Clark County‘s motion to dismiss McAllister‘s ADA claim on standing grounds [ECF No. 45] is GRANTED. McAllister‘s ADA claim is dismissed without leave to amend for lack of standing.
IT IS FURTHER ORDERED that Clark County‘s motion to stay discovery [ECF No. 37] is DENIED. The parties must file a joint discovery plan by September 4, 2024.
U.S. District Judge Jennifer A. Dorsey
August 21, 2024