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Show "He art dedicated to the public interest, to OPINION S fairness and accuracy, to innovation and growth, and to the restless pursuit of excellence.'' Pulitzer mission statement EDITOR: DONALD W. MY TWO MEYERS TTBiie- sHcHsjr - Church of Jesus Christ Saints lost latest round in its fight over the Main Plaza last week. The full U.S. 10th Circuit Court of Appeals refused to hear the church's appeal of a panel's 0 ruling that the church may not restrict speech, demonstrations, sunbathing, smoking or other activities. This opens the door for the church to take its case to the U.S. Supreme Court. It may be unlikely, however, that the high court will take the case. In a typical year, the court receives 8,000 appeals but actually hears only 80 cases between October and the end of June. Getting on the docket is a long shot, given the facts of this case and the strength of the appeals court's stance. No novel legal concept sweeping enough to engage the Supreme Court's constitutional interest seems to be involved here. The church argued in last week's appeal to the full 10th Circuit that the public easement is "strictly limited to pedestrian access and passage." It was not a license for people to picket, hand out leaflets or make speeches, church attorney Von G. Keetch The Latter-da- W. Meyers Free speech not outdated like criminal libel law M icking and screaming, Utah is being dragged into the m 21st century. The Utah Supreme Court struck down a buggy whip-er- a law that could land you in jail for telling the unvarnished truth. The court ruled that Utah's 1876 criminal libel statute was unconstitutional and overly broad. The decision throws out the criminal libel charge against Ian Lake, a former Milford High School student who created a Web site making disparaging comments about school administrators and classmates. Lake said he created his Web site in response to other student sites that were attacking his Li friends. Lake was arrested and detained for seven days, his computer sent to the state crime lab for analysis. It's the type of response you'd expect for a suspected terrorist or a child molester, not a teen dissatisfied with his school life. But then, this was Milford, a community where a pig farm is the largest industry. Lake's commentary was intemperate, at best, and most likely has been uttered by frustrated high school students across the country for time immemorial. The only difference in his case was Lake's posting them on a global computer network instead of muttering them in the school courtyard or scrawling them on the bathroom wall. But was it a criminal act? Hardly. At worst, it may warrant a civil libel suit. At best, the principal needs a thicker skin. Criminal libel statutes hearken back to the day when people resolved their differences with dueling pistols or swords. The main goal of a criminal libel statute was to prevent bloodshed over disparaging remarks. Which is why the laws did not recognize the standard defense in a libel suit truth. The thinking back then was that preventing a duel was more important than allowing someone to state the painful truth. Utah's criminal libel law only allowed truth as a defense if the statement was uttered without malice. In other words, you couldn't tell someone the whole truth solely to upset them. But civilization advanced. We replaced dueling pistols with lawyers and made libel a civil matter. And people also recognized that the truth, no matter how much it upset someone, was a glorious defense in a libel suit. Civil libel laws also recognize a difference between a public figure who must prove that the person libeling them either knew the statement was false or acted with reckless disregard for the facts and a private individual who need only prove that the statements are not true. In this case, the principal is a public figure, given his standing in the community, and would have a greater burden of proof to win a case. Which shows in this case, the criminal libel law was a mean-spirite- d attempt by the establishment in a small farming community to punish an outsider who tweaked officialdom. And, sadly, this decision hasn't ended the dispute. Beaver County Attorney Leo Kanell filed four charges against Lake, under a more recent criminal defamation law that does not have the defects of the 1876 statute. Kanell said he's doing it because he doesn't want Lake "to go through life without apologizing to the people he harmed." Actually, Kanell and the Beaver County law enforcement establishment need to apologize to Lake for not respecting the concept of free speech. Opinions Page Editor Donald W. Meyers' column appears Sundays and Thursdays. He can be or via reached at 344-2544 at dmeyersheraldextra.com. rase said. Second, the appeal said treating the plaza as a public forum infringes on the church's First Amendment rights attorneys wrote that "competing rights will be everywhere." In other words, street preachallowing anti-LD- S ers and pamphleteers on the property interferes with the religious message presented by the church. Finally, the church argued that legally defining the plaza as a public forum wherein the city would grant permits for demonstrations, parties and the like or wherein any "close coordination" with the church was necessary may amount to a government intrusion in violation of the First Amendment's "establishment clause," which prohibits government from endorsing a religion. Such "excessive entanglement" would surely be challenged. These are all interesting arguments with some merit, but they may not be sufficient to persuade the Supreme Court of the United States to hear the case, or if it does to then grant the church the right to control speech and activity. Oddly, the church's 10th Circuit appeal avoids any mention of who aren't doing anything but enjoying a warm day. Nor does it mention smoking or other activities that have been a sun-bather- s, If HERALD y 3-- Donald SUNDAY, THE DAILY HERALD (www.HartTheHerald.com) 4 CCJTS A6 Editorial d. l. well-meanin- Steail Pita) When parties enter into any agreement however they must recognize that their agreement does not constitute the well-meani- ng part of this controversy. Surely the church still classes those activities as objectionable, and it seeks to bar them along with protests. When the church purchased the land adjacent to Temple Square, Salt Lake City insisted on maintaining a public easement to pro- - . tect pedestrian traffic. While not specifying exact boundaries for foot travel, the easement does require the plaza to be open at all And the plaza hours, overlays a former city street. It is therefore a public forum, according to the appeals court, which means all First Amendment activities are protected just as they are on the sidewalk in front of a private home. That principle seems plain enough. Further, it is well established that any restriction on First Amendment rights in a public forum must be viewpoint-neutraA key element of this case has been the fact that the church wants to restrict speech and activities it doesn't approve of. It wants only its own messages to be present on the plaza. With all this in mind, LDS Church lawyers might have known better than to propose in the first place, much less enter into, an agreement that was likely to be rejected by the courts. The church has spent a great deal of money on plaza development, but that's hardly the key point. When parties enter into any agreement however they must recognize that their agreement does not constitute the final word. That responsibility rests with the courts in the event of a challenge. It is a given that 50 percent of lawyers guess wrong about what a court is going to do with a case, and so far in this instance the miscalculation seems to be mostly on the part of the year-roun- ElMmi NOVEMBER 17, 2002 g church. While it is unfortunate that one party to a questionable agreement may have already spent a considerable sum in pursuit of a goal, that doesn't change the basic shape of the legal argument. The church's Supreme Court appeal may be simply throwing good money after bad. It's important to remember that First Amendment concerns were discussed from the earliest stages of the plaza transaction. It was no secret that those issues could final word. return to bite the parties. In fact, the special warranty deed conveying the plaza to the LDS Church includes a severability clause requiring that in the event any provision of the deal is found unconstitutional, all other provisions remain in force. So the church may have simply taken a calculated legal risk in constructing the new plaza. As the case stands today, that clause tends to work against the church, while it appears to put the City Council in the driver's seat. Lately, there has been talk on the Council of revising the ordinance authorizing the sale and abandoning easement restrictions altogether in fairness to the church. That would be legal, says University of Utah law professor John Martinez, a specialist in local government law who was retained by the Council. But while church lawyers and supporters see that as an ideal solution, it may violate the city's its responsibility public trust to serve not just the LDS community but all its citizens. Pedestrian traffic in the downtown area has been an important component of the city's transportation grid. The church now argues that the property has been transformed to such an extent that pedestrians do not walk through to get somewhere else, that the plaza is primarily an "end destination," not a thoroughfare, and that the 10th Circuit panel ruling was improperly based on "hypothetical" pedestrians who "might" use the plaza to get across town. This is a bit like saying that a citizen who has chosen not to participate in past elections sacrifices his right to vote because he is merely a "hypothetical voter," or that a person who has never visited a national park should be barred from doing so in the future. The fact that large numbers of pedestrians may not be found in transit on the plaza, which is still very new, is no reason to assume the right of transit doesn't (or shouldn't) exist. On the contrary, easements protecting pedestrian travel and by extension free speech on Main Street Plaza should not be lightly discarded, trusting in the assurances of a private entity that foot passage won't be blocked in the future. Who's to say, for example, that the church would not someday disapprove of downtown shoppers traversing the plaza on Sundays with purchased goods, or that it might not arbitrarily block visitors not participating in ecclesiastical events, or close the plaza during nighttime hours as it does Temple Square? The prospect of the City Council ceding all rights on the plaza to the church recalls John Stuart Mill's warnings about popular majorities overriding the rights in this case, a majorof others ity of LDS residents who want representatives on the Council to move in favor of their own church. Approximately of LDS residents support releasing plaza restrictions and simply handing the church unfettered control, according to a poll conducted for the church-owne- d If Deseret News and KSL-Tthat view prevails in the City Council, the message that many Catholics, Protestants, Jews, agnostics and others may hear is that the LDS Church gets what it wants because it is the predominant religion. The poll showed that 73 percent of those belonging to another church oppose giving up the public easement. for Surely, other solutions example, nondenominational community events, active LDS hospitality toward all on the plaza and tolerance of pamphleteers may go further in the long run toward promoting community harmony and respect than a protracted legal battle. The irritating, rhetoric on the plaza will certainly wane as time distances todas brouhaha. two-thir- anti-LD- S Members of The Daily Herald editorial board are Publisher Kirk Parkinson, Executive Editor Randy Wright, Opinions Page Editor Donald W. Meyers, Mapleton resident Jared Twitchell and Payson resident Carolyn Gleason. Herald Poll Editor's note: The Daily Herald recently asked readers ifProvo should tighten the limit on renters. Out of the 650 people who voted on our Web site, 351 said yes and 299 said no. Below are the comments we received via telephone and Renting helps students I'm definitely against this silly thing that this Mr. Knecht has. This is the modifying influence that students need in their life to live in an area like ours. It's not congestive. It's not any problem. I am for small apartments in homes. Lawrence Lee Orem Stepping on slick slope I think Provo should not limit the number of people in a house. The limit they have is good. I do not think they should go to two, because after two are they going to go to one? Bob Halverson Provo three-perso- n Rein in renters I think they do need to tighten the limit on renters. All they need to do is just look at different neighborhoods in different states that don't have limits on renters and they'll see what happens to the neighborhood. It's the " syndrome, and I think Provo's already in danger of becoming that kind of a neighborhood. They need to take action quickly. Dorothy Harris Springville "old-couc- h, old-car- Just another regulation I'm opposed to this one more regulation, rule and what have you. We already have in place the necessary controls and then we have added penalties to the landlords who have tried to maintain their property and rent properly with our "business tax." Frankly, I'm sitting in the middle of probably a dozen houses begging somebody to buy, rent or steal, and they're empty. Nellie Motes Provo Illegal discrimination Owners' property rights should not be restricted on the basis of marital status, therefore they should not tighten the limit on renters. In fact, they should repeal the code that places the limits on owners if they're single, or renters if they're single. The 14th Amendment has an equal protection clause and marital status has been defined a protected classification. This law is wrong and should be repealed or struck down in court. Roger Brown Provo Fix actual problems Limiting student occupancy to two students does not address the real problem of how to monitor the landlords who currently rent illegally right now. I have a solution: Share the fine imposed on delinquent landlords with the person informing the city of the problem. The real issue appears to be parking. I would want new developments to have more parking rather than limiting the number of tenants. Lynn Pickett Orem Punish lawbreakers I'm opposed because it will pull resources away from the bigger problem: having more than three unrelated tenants. I v- . - ' It's discriminatory. My single neighbors don't cause more parking problems than the neighbors with 15 extended family members. If the real problem is parking, noise or unkempt yards, then address the real problems. Punishing my single neighbor who owns her home and creates none of these problems, yet likes to live with two friends, is grossly unfair. Kimberly Morris Provo Rule makes no sense Sometimes, I think government goes beyond reason with rules and regulations. It doesn't make sense to say that, in a house, for instance, it's OK to rent to a family of eight but not to four individuals. I think the owners should have the right to decide, especially if there is adequate parking. A better way to regulate would be to say no more than one single adult per bedroom in any given four-bedroo- m unit. Lydia Gibbons Orem Don't regulate relations I strongly disagree with David Knecht's proposed ordinance with restrictions based on blood relationship. Ordinances should address parking, noise or maintenance of buildings. If a couple wants two foster children, is that OK? If I help an elderly family friend by inviting them into my home to live, is that OK? But just not two elderly friends? Students are not the enemy and neither are landlords. Vicki Tate Provo Enforce existing laws I am strongly opposed to Provo tightening the limit on renters. In fact, I believe the present law is already too tight. What is the problem that the city is trying to solve? If the problem is over parking and loud parties, aren't there already laws in place to deal with those problems? Why do we need to further restrict the freedoms of the people and discriminate against single adults? Paul Merrill Provo |
