Fremont Street in Las Vegas is one of the city’s major tourist attractions. It is operated and managed by a private concessionaire, Fremont Street Experience, LLC. The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license. In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.

Joseph Ashley is a street performer who brought a facial challenge to the Las Vegas code regulating his performances. He sought a preliminary injunction against enforcement of the code provisions, arguing that the provisions were content based and unconstitutional. The request for preliminary injunction was denied by a federal district court three weeks ago.

Ashley argued that the restrictions were imposed out of disagreement with street performances. And relying on Reed, Ashley contended that the code’s special treatment for street performers was itself content based. The court disagreed with that view, stating: “[w]hile the challenged ordinances do regulate the source of expression—street performances—the ordinances do not distinguish based on the content of the message conveyed by the performers.” The court further found that Ashley had not provided sufficient evidence that the code provisions were motiviated by censorial purposes, and went on to hold the provisions to be content neutral.

The court went on to find that the Las Vegas code was narrowly tailored to significant governmental interests in pedestrian passage on Fremont Street, public safety, reduction of nuisances, and economic development. The court rejected all of the plaintiff’s contentions, and further found that the code provisions left ample alternatives for expression. Specifically, an unrestricted number of street performances were allowed on the mall during non-peak hours, and lottery spaces were available during peak hours.

Ashley v. City of Las Vegas, No. 2:16–CV–02053, 2016 WL 6996999 (D. Nev. Nov. 27, 2016).