Two men arrested for handing out anti-Mormon literature.
April 9, 2002 8:32 PM   Subscribe

Two men arrested for handing out anti-Mormon literature. "The Church of Jesus Christ of Latter-day Saints' and Salt Lake City's restrictions on behavior they deem "offensive" on the plaza are now the subject of an American Civil Liberties Union lawsuit before the 10th U.S. Circuit Court of Appeals in Denver." ... "The deed made it clear it [the plaza] was not a First Amendment forum..." Does the ACLU have a good case?
posted by aaronshaf (43 comments total)
If it would be acceptable to hand out Pro-Mormon material then I believe it should be acceptable to hand out anti-Mormon material. Maybe someone can convince me otherwise?
posted by howa2396 at 8:40 PM on April 9, 2002

One of the men, Kurt Van Gorden, just happens to be the president of the National Missions Board. Co-ink-a-dink? Perhaps, perhaps not. I think this may be a legal experiment by the LDS church.
posted by aaronshaf at 8:42 PM on April 9, 2002

"Clearly we are going to have to take a look and see if this is something the 10th Circuit needs to know about," Clark, the ACLU lawyer, said. "[The judges] were clearly troubled about this, because now we see the Baptists wind up in jail while the Mormons can pass out their literature."
posted by aaronshaf at 8:43 PM on April 9, 2002

The Utah chapter of the ACLU has another complaint by Van Gorden on their web site. Apparently this isn't the first time he's tangled with the LDS.
posted by nathan_teske at 9:01 PM on April 9, 2002

I hope the ACLU wins, but there is one sticking point, free speech aside:

Church and city attorneys maintain the two-acre plot now is private property and that the church, as private property owner, can do as it pleases.

If the church owns the property, they can control to some extent what goes on (you can't yell 'fire' in a movie theatre). As long as these men were warned to leave, they may then legally be guilty of trespassing, even though it was completely arbitrary. The motivation of the LDS, as suspect as it is, does not make the men's act any less illegal. You aren't allowed to smoke on the plaza. People are usually promptly asked not to, and the same thing might have happened if they had refused to leave.

Here is why the ACLU can win, because the property is not completely private:
The city also gave the church the exclusive right to distribute literature and broadcast music and speeches.

In this case, the government is violating the 1st amendment by establishing special privileges for a religion. Case closed.
posted by insomnyuk at 9:01 PM on April 9, 2002

isn't that one of the first reasons why most americans are in america? freedom of and from religion?
posted by Kafei at 9:11 PM on April 9, 2002

City government, State government it doesn't matter if the Mormon Church wants something they get it. I remember a number of years ago the legislature was on the verge of passing a bill that would allow liquor on tour buses taking mormons to gamble in Nevada. It was expected to pass by some 80% on pre vote polls then the church said not a good idea and all the sheep, said ooops. It was defeated by a similar margin. Our only hope here is in the federal courts.
posted by onegoodmove at 9:17 PM on April 9, 2002

That's the problem with cults, they don't like alternate viewpoints.
posted by fleener at 9:43 PM on April 9, 2002

The ACLU lost the case in the district court on summary judgment. That means it didn't even get to trial. The court found that since the plaza connected two privately owned properties (presumably owned by the Mormons) and the easement was pretty explicit in limiting the public nature of the plaza, that it just wasn't a "public forum." If you don't have a public forum, there is no first amendment protections. The government can restrict speech anyway it wants as long as the restrictions are not totally arbitrary.

The citation for the district court case is 146 F. Supp. 2d 1155, in case anyone wants to look it up.
posted by boltman at 9:49 PM on April 9, 2002

Being from Salt Lake (and LDS) you would think I could comment intelligently upon this issue, but truth be told I didn't really follow this too much. It seems to me though that if it is clearly the church's property then it's like someone walking into your house and screaming obscenities at you. Sure, everyone has their freedom of speech, but there are also limitations to it. I'm curious what the judge will say.
posted by jaden at 9:51 PM on April 9, 2002

Well, you know, Jesus was a big defender of property rights.

And verily, he said unto them, "Remember my turf and keep it holy, for I shall strike down upon thee with great vengance and furious anger, those who attempt to hand out Chick Tracts which poison and destroy my Mormons, and you will know that I am the LORD, when I lay my magic skivvies upon thee. And your many wives. Nice temple, by the way."

Peace out,

posted by Optamystic at 9:51 PM on April 9, 2002

also, here is the language of the easement:

The Warranty Deed provides the pedestrian easement is expressly subject to the following conditions as follows:

2. Conditions, Limitations and Restrictions. Notwithstanding anything to the contrary in this instrument, the easements reserved herein are subject to the following conditions, limitations and restrictions:

* * *

2.2 Right to Prevent Uses Other Than Pedestrian Passage. Nothing in the reservation of use of this easement shall be deemed to create or constitute a public forum, limited or otherwise on the Property. Nothing in this easement is intended to permit any of the following enumerated or similar activities on the Property: loitering, assembling, partying, demonstrating, picketing, distributing literature, soliciting, begging, littering, consuming alcohol beverages or using tobacco products, sunbathing, carrying firearms (except for police personnel), erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct, or otherwise disturbing the peace. Grantee shall have the right [**7] to deny access to the Property to persons who are disorderly or intoxicated or engaging in any of the activities identified above. The provisions of this section are intended to apply only to Grantor and other users of the easement and are not intended to limit or restrict Grantee's use of the Property as owner thereof, including, without limitation, the distribution of literature, the erection of signs and displays by Grantee, and the projection of music and spoken messages by Grantee.

2.3 Right to Exclude Habitual Violators. Grantee may prohibit and lawfully prevent access to the Property by individuals who: (a) have threatened or intentionally caused harm to leaders or members of the Church of Jesus Christ of Latter-day Saints; (b) have threatened or intentionally caused damages to buildings or property owned or used by the Grantee or by the Church of Jesus Christ of Latter-Day [*1161] Saints; or (c) have on more than one previous occasion entered on the Property and engaged in activities identified in section 2.2 above.

3. Enforcement. Grantee may use all lawful means available to owners of private property to prevent any uses of the easements which are [**8] contrary to the provisions of this instrument.

posted by boltman at 9:51 PM on April 9, 2002

Does this mean that if I put a sign on the boundary of my property indicating that unsolicited doorknockers will be considered to be tresspassing that I can have them arrested if they walk up and ring the doorbell?
posted by krisjohn at 10:16 PM on April 9, 2002

Arthur Conan Doyle warned us about the Mormons. Did we listen? No...
posted by crunchburger at 10:36 PM on April 9, 2002

sure. it's your property. haven't you ever seen those signs that say "No trespassing: violators will be prosecuted."?
posted by boltman at 10:36 PM on April 9, 2002

"No trespassing: violators will be prostituted". Me likee.
posted by Mack Twain at 11:39 PM on April 9, 2002

Being Mormon (but not living in Utah), I'm personally amazed at the comments MeFi'ers can toss in just because it relates to a religion, and the Mormon religion especially.

Fleener, tolerating alternate viewpoints isn't the issue at all. One of the core beliefs of the church is expressed this way, " We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may."

It wasn't what the men had to say that was the problem, but the fact that they were standing in the middle of a multi-acre plot of private property (which is pretty intuitive based on the dozen or so Church-owned buildings surrounding it) and refused to leave.
posted by terceiro at 11:39 PM on April 9, 2002

Does this mean that if I put a sign on the boundary of my property indicating that unsolicited doorknockers will be considered to be tresspassing that I can have them arrested if they walk up and ring the doorbell?
Kind of related to this, a Church around where i live (Atlanta) had some Christmas decoration, including the manger seem with Jesus. Some people who drove past this Church were appearantly offended by this scenery, so they sued to force the Church to remove the decorations (even though it was private property), and the drivers won.
posted by jmd82 at 11:57 PM on April 9, 2002

jmd82: are you sure the nativity scene wasn't on public land? maybe a park ajoining the church?

i suppose it could be that the church was violating some sort of town zoning ordinance. but i am quite sure that there is no first amendment issue there.
posted by boltman at 12:42 AM on April 10, 2002

there is no first amendment issue there.

sorry, that wasn't clear. what i meant was that the drivers could not have successfully used the first amendment to force a church to remove the nativity scene.
posted by boltman at 12:45 AM on April 10, 2002

terceiro, oh if it were as simple as private property rights. Try reading the article. Specifically, read the third sentence.
posted by fleener at 1:52 AM on April 10, 2002

I'm not a Mormon theologian, but "Almighty God" doesn't necessarily mean Allah or Yahweh either.

Jews, Christians, muslims and mormons all whorship the same god
posted by delmoi at 2:09 AM on April 10, 2002

delmoi: What you say may be correct, but getting a member of one of those religions is often an exercise in futility. It's simply Not. That. Simple to many of them.
posted by John Shaft at 3:35 AM on April 10, 2002

delmoi - Man, talk about your Freudian slips...
posted by NortonDC at 4:51 AM on April 10, 2002

terceiro, did you read this part? - "We made sure we were walking where the old sidewalk was on the plaza," said Heath, a member of Calvary Fellowship Church in American Fork. "We said we thought the public has an easement through this property, and we are well within our rights on the easement."

delmoi, on a personal note... no offense, but I'm a Christian, and I don't worship the same God as a religion who claims that male gods have sex with other female-gods to procreate more gods. Just one God here.

If you read the language of the easement (posted above), 2.2 starts with: "Right to Prevent Uses Other Than Pedestrian Passage. "
posted by aaronshaf at 5:05 AM on April 10, 2002

Gore Vidal said, "you don't need a conspiracy when everybody thinks alike" or something like that. That may be the case in Utah with their elected officials.

This looks like a legal chess game by two parties who know exactly what they are doing. As a non-Utah mormon, I'm sort of interested in the outcome but not *that* interested. When I put on my good liberal hat, I'm mildly disturbed by the fact that the church absorbed a block of public land adjacent to temple square.

When I put on my good mormon hat, I feel like pointing out that there wouldn't be a Salt Lake City if the mormons hadn't settled it. Of course you have to live within the current legal structure.

Basically, what the church did was get "ownership" of a street that bisected two huge parcels of church-owned properties, and it was turned into a pedestrian mall of sorts.

Sigh. Yet another rambling, ambivalent post. (by me.)
posted by mecran01 at 5:51 AM on April 10, 2002

Merriam-Webster definition for easement:

Main Entry: ease·ment
Pronunciation: 'Ez-m&nt
Function: noun
Date: 14th century
1 : an act or means of easing or relieving (as from discomfort)
2 : an interest in land owned by another that entitles its holder to a specific limited use or enjoyment

Unless the the courts can come up with a different definition this seems to support the LDS position. They own the land and grant the easement. They say what happens on the easement.

This will be interesting to follow.
posted by bjgeiger at 6:32 AM on April 10, 2002

What perhaps people don't understand is that this used to be a public street right in the center of downtown (and oh the furor that was when the city sold that block to the church, I was living in Salt Lake when it happened). For you fellow New Yorkers, try and imagine if a church bought a block in Times Square and forced you to live by its rules on that block.

So, all the Mormon Church has to do to get their precious city back (Salt Lake is only about 40% Mormon now, but most of the government officials are Mormon) is just start buying up all of the city property. Then it can be like a Mormon Disneyland where nothing bad happens, right? Oh yeah, and you don't have your first amendment rights.
posted by witchstone at 6:55 AM on April 10, 2002

Jews, Christians, muslims and mormons all whorship the same god

People who make that kind of statement could only make it on the basis of a very superficial understanding of any of those 'religions'.
posted by Dani_T at 7:16 AM on April 10, 2002

Jews, Christians, muslims and mormons all worship the same god

People who make that kind of statement could only make it on the basis of a very superficial understanding of any of those 'religions'.

I'll bite. Dani_T, in what way do Jews, Christians, Muslims and Mormons worship different Gods?
posted by sennoma at 7:53 AM on April 10, 2002

Oy vey.

Conference Weekend and the pamphleteers are out en-force... and they have been for years. This is nothing new. Of course, the well-meaning folks who hand out the literature have (for the most part) kept to the sidewalks that surround LDS property, knowing full-well that trespassers would be asked to leave (if not prosecuted)... just as pro-lifers (for the most part) know to stick to the public space when picketing abortion clinics.

These two gentlemen, feigned naivete aside, knew that they were trespassing... the property (and its permitted uses) is clearly marked.

The city sold the property to the Church (making a solid profit from otherwise high-cost, income-neutral property), and, as a matter of sound public policy, maintained an easement for direct passage through the property for the pedestrian traffic that would otherwise have been adversely affected. End of story. There is no case here... no First Amendment infringement because it's not a public forum, no separation of Church and state because it's completely within the city's jurisdiction to sell its own property to whomever it pleases...

The only issue here is the primary one of whether the city handled the sale of the property well in the first place... which (I believe) has already been adjudicated.

Sheesh... move on folks.
posted by silusGROK at 8:47 AM on April 10, 2002

Witchstone... it's hardly Times Square. And sale of roadspace in Salt Lake City is hardly new (the convention center appropriated the intersection of 200 West and South Temple). In a city with practically more streetscape than landscape, the road is a major cost center, and one of the major sources of potential property sales revenue.

The sale PR may have been handled poorly, but it was hardly a major departure from previous city property sales to other (non-Church) entities.

It's a mountain from a mole hill (or, in this case, a Time Square from a Main Street).
posted by silusGROK at 8:53 AM on April 10, 2002

sennoma: I'll bite. Dani_T, in what way do Jews, Christians, Muslims and Mormons worship different Gods?

Judaic religion is based in the worship of the God of Abraham, indivisible, unity, in accordance with Torah. Images strictly prohibited in any form.

Christian religion is based in the worship of the God of Abraham, trinity, in the incarnation of Y'shua (Jesus), who was dead and buried over Sabbath (taking rest), and rose again afterwards, in accordance with the Bible (including Torah, but expanding beyond it). Many similarities to Mithraism. Images encouraged.

Islamic religion is based in the worship of the tribal gods of Mohammed, which were named as the God of Abraham, but many of the cultic practices match Ba'al worship documented in the area. Theological studies are strongly divided on this point, and it is not likely to be resolved any time soon. The claim is made that this is the same God as Judaic and Christian cultic worship, but with entirely different attitudes towards the chosen people and adherents. Images prohibited.

Mormon religion is based on the worship of the God of the Christians, but with the caveats that all members of the faith can eventually achieve Godhood (a violation of basic Christian tenets, that equality with God is not a thing to be considered). Images tolerated.

That's a basic overview, for a topic that needs much more than this to be fair.
posted by dwivian at 9:40 AM on April 10, 2002

dwivian - That's a surprisingly accurate summary based on what I know. The only thing I would probably disagree with is "Images tolerated." If you've ever been in an LDS chapel you will see that there is not a single item that is meant to be worshipped. There is the Christus at the visitors center in TempIe Square, but that is not a place of worship. I think No images would be more accurate.
posted by jaden at 10:39 AM on April 10, 2002

Dwivian... interesting assessment.

As for the Mormon one... two comments. I think "images tolerated" is a fine qualifier: images and symbols are used in much of our personal worship, but the mystic/supernatural power of those images/symbols is strictly proscribed, if not utterly denied (an image is worth a thousand words... but that's about it). The other comment I would make would be vis a vis an "equality with GOD". Please understand that our belief that we might one day achieve godhood is highly analogous to the mortal aspiration to parenthood. I may one day become a FATHER, but that does not make me equal to my father, rather it elevates him to the status of GRAND FATHER... we are now both parents, and enjoy a certain communion, but he will always be my progenitor, and nothing I do can change that. Elevate that to the realm of immortals, and grace it with the eloquence and reverence that it otherwise lacks... and you get the idea.

Jaden... before you reject the notion of imagery in LDS theology, think of the temple rite, the large media libraries in our chapels, the prophet's plea for us to have pictures of Christ in our homes, et cetera.

: )
posted by silusGROK at 1:16 PM on April 10, 2002

There is no case here... no First Amendment infringement because it's not a public forum, no separation of Church and state because it's completely within the city's jurisdiction to sell its own property to whomever it pleases...

That's certainly how the district court came out on it, but I don't think it is quite as open-and-shut as you make it out to be. Part of the ACLU's case was that that the city government conspired with the Mormom church to deprive non-Mormom citizens of their 14th amendment right to equal protection under the laws. If the ACLU could prove that the city sold the property to LDS solely because it wanted to facilitate discrimination against non-Mormons, they'd win.

There's also the issue of whether the plaza has been truly "converted" into a private forum from a public forum. From what I understand (and I am by no means an expert), the government can't simply decree that a forum previously understood to be public is now private. There has to be some sort of "transformation" of the space in function or purpose. In other words, just saying in the sale agreement that the space is no longer a public forum doesn't make it so (at least when the government maintains a property right in the plaza). The district court found that there was such a transformation in function, but my guess is that it's at least possible for the Appeals court to see it differently.

Finally, ACLU lawyers are pretty canny. I doubt they'd be bothering with an appeal if they felt they had no chance of winning.
posted by boltman at 1:18 PM on April 10, 2002

Witchstone... it's hardly Times Square

I didn't say it was. Salt Lake City is hardly Manhattan.

I was making an analogy.
posted by witchstone at 1:46 PM on April 10, 2002

Boltman... wonderful points.

And you're right: it's not as clear-cut as I would like, but I hope my stance was an appropriate foil to the tone of the thread, generally.

As for the points... the theory of conspiracy is just that: a conspiracy theory, and lacks any substance. As I mentioned before, the purchase process was a PR nightmare... but that shouldn't be construed as a conspiracy. I hope at some future junction in my life to buy large tracks of land from the city, and I would certainly do my best to keep such an endeavor under wraps for as long as prudent to streamline the process... that said, it being a government deal, it falls under certain rules of public disclosure. My understanding is that the Church's purchase followed the letter of the law... moreover, I would posit that the onus of keeping the rules of public disclosure would fall on the city, rather than on the buyer.

As for the conversion of the space from public forum to private space... it appears from the sale contract that the conversion was straight forward, and was more than alluded to in the city's needing to include an easement for public access. If the there was no conversion, but merely a transfer of management, then there would have been no need for such an easement. Moreover, the transformation of the space from a public right-of-way (a street), to a privately owned garden space atop an enormous underground parking structure seems to underscore the conversion... but you're right, the court of appeals may see it differently.

As for the ACLU comment... I don't know: the ACLU (at least in Utah) seems to put comparable amounts of value on ink and face time, as they do on winning cases. Which isn't necessarily an incorrect assessment of their relative values.

Again, great points all around.
posted by silusGROK at 1:48 PM on April 10, 2002

Witchstone... I understand that it was an analogy. But even so, it is not a very solid one: that one block of Main Street was not much of a hub of civic/cultural/retail activity. Aside from it being a road (and one that was just a block from the artery's terminus), it was mostly a through-way for folks going from one Church-owned lot to another... so it's value (even scaled back using some per-capita scheme) is not the least bit comparable to Times Square's.
posted by silusGROK at 1:55 PM on April 10, 2002

skallas: you're right that "Almighty God" does not refer to Allah or anyone else; but it's self referrential. We worship Almighty God, let others worship how, where, or what they may. That pretty much covers the pan-theists. You're right, though, it does not explicitly say that Mormons should tolerate non-theists, but that can safely be assumed.

witchstone, not only is SLC not NYC, but the street in question isn't Times Square. It was smack-dab down the middle of two large plots of private property, which are now combined into one large plot of private property. The whole analogy is off.
posted by terceiro at 2:08 PM on April 10, 2002

Although the where in that quote shouldn't be construed to mean on our property.

; )
posted by silusGROK at 2:28 PM on April 10, 2002

Vis10n: when i said "conspired" i was using the term imprecisely. All that would have to be proven is that the state officials allowed the plaza to be turned into a private forum specifically because they wanted to discriminate against non-Mormons.

However, you are right that it would be pretty tough for the ACLU to prove this. Unless the ACLU can dig up with specific evidence of an improper intent, all the state needs to show is that the conversion to a private forum served some legitimate government purpose--a fairly easy thing to do.
posted by boltman at 3:10 PM on April 10, 2002

If it would be acceptable to hand out Pro-Mormon material then I believe it should be acceptable to hand out anti-Mormon material. Maybe someone can convince me otherwise?

Legally speaking, with out the existence of heightened rights of free speech in Utah (granted by the Utah's legislature by statue or located in Utah's Constitution) private property is private property, and the owners of that property can chose who stays and goes. See New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corporation, et. al. Barring any discrimination, (of which, there was none in this case because the Baptists were kicked off for what they were saying, and not for who they are) an owner of private property can kick someone off their property for good reason, bad reason or no reason at. It’s a fundamental tenant of property law.

I don't think it’s right, but it’s the law.
posted by Bag Man at 3:14 PM on April 10, 2002

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