Speakers are not barred from gaining access to the plaza audience. People entering the plaza, in large part, get there by using public sidewalks. Speakers, therefore, can access the plaza audience by standing on the public sidewalks.

Argument — The plaza is an historic public forum subject to First Amendment guarantees of free speech. But under the deal, the average speaker would have difficulty knowing when he ventured off public property and onto private, limited speech land.

Kimball — Public land can be sold to private entities and, most times, such transactions cause the property to lose its public forum status. Main Street Plaza has lost that status because it is wholly owned by the LDS Church and looks different from the surrounding public sidewalks. The pavement, signage, lighting, landscape and other decorations match the church's surrounding private property.

Argument — Salt Lake City retained a "right of re-entry," which requires that the church maintain the plaza as a "landscaped space." The city's right of re-entry significantly decreases the value of the land and creates a similar situation to the city's pedestrian passage easement, which previously cut through the plaza. The 10th Circuit ruled that former easement created a public forum on the plaza. The "right of re-entry" is similar enough to the easement that it also creates a public forum on the plaza.

Kimball — The right of re-entry doesn't reach the level of the pedestrian easement because it doesn't guarantee public access on the plaza. Instead, the LDS Church can close off public access whenever it wants and could even fence off the property. Sans a public access easement, the plaza is not a public forum.

Argument — The LDS Church verbally committed to allow public access through the plaza. The public could therefore trust that the church wouldn't close off public access.

Kimball — Regardless of verbal promises, the legal agreement signed by the church and the city clearly states the church can cut off public access whenever it wants. The legal deed supersedes any previous suggestions, verbal or otherwise.

Argument — In getting rid of the easement, the city committed "viewpoint discrimination" by silencing critics of the church on the plaza.