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Legal scholar: Sands deed restrictions violate Constitution, federal law

Published On: Oct 11 2012 09:26:51 PM EDT   Updated On: Oct 12 2012 09:31:51 AM EDT

A legal scholar spent more than an hour Thursday afternoon building a case against deed restrictions on land given to the city of Bethlehem by operators of the Sands casino.

Columbia University law professor Mark Berenberg's verdict -- that the restrictions violated both the First Amendment to the Constitution and federal labor law -- was warmly received by about 60 people gathered in Lehigh University's Linderman Library.

But Berenberg also delivered a sobering "news flash" to his audience -- "The Supreme Court has been ever less protective of free speech rights in the last 30 years."


Berenberg was introduced by Lehigh English professor Seth Moglen, who is director of the university's South Side Initiative. Moglen was part of a group that unsuccessfully fought the restrictions in a June 2011 contract transferring 2.5 acres of land owned by Sands Bethworks Gaming to the Bethlehem Redevelopment Authority. 

The transfer deed says no events may take place on the property at the western edge of the former Bethlehem Steel site "that would be considered offensive to a reasonable casino operator," or that would permit "labor-related entities" to organize workers. Part of that land, which is adjacent to the Steelstacks campus, is designated as the 21st Century Town Square.

Berenberg spent a good half-hour explaining the evolution of free speech rights that culminated with the 1939 Supreme Court decision that granted people the right to speak on public property and in public spaces and the 1935 National Labor Relations Act, which gave workers the right to speak about and associate in unions without retaliation from employers. He also mentioned the importance of the steelworkers union.  

The Supreme Court decision ended "government colonization of the mind and tongue," he said, while passage of the NLRA "was a constitutional revolution" that "cut into employers' pre-existing property rights."

After a detailed explanation of how the deed restrictions violate the Constitution and federal law, Berenberg labeled them "a clever attempt" by Sands officials to "outsource" the job of keeping union organizers off the property to the city of Bethlehem and ArtsQuest. He also labeled a provision that allows the Sands officials to buy back the land if they are dissatisfied with the job the city is doing a form of "three-card monte."

After his presentation, Berenberg answered questions for more than a half-hour from students, residents, union members and the president of the Greater Lehigh Valley chapter of the American Civil Liberties Union.

Many tried to pick his brain about legal strategies to deal with the restrictions. Jerry Green, president of United Steelworkers Local 2599, asked Berenberg his advice on "fighting this thing." Berenberg said it was "up to your community to decide" the best path to follow.

He commiserated with two Sands security guards, who told Berenberg that despite their successful effort to organize 130 guards into a union last July, they have yet to get Sands management to the bargaining table. "Every time [Sands officials] appeal [the decision to unionize], they lose," said one of the guards. "But they have deep pockets."

Berenberg said that the National Labor Relations Act is "radically under-enforced, and monetary penalties [for violating it] are extremely weak."

Both the Sands and ArtsQuest were asked for a comment about Berenberg's appearance. The Sands declined. ArtsQuest issued a statement saying, "As a presenter of diverse artists and forms of artistic expression, ArtsQuest firmly supports the freedom of expression guaranteed by the First Amendment."