Las Vegas Sun

September 21, 2014

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Critics claim handbill ban unconstitutional

Opponents of Clark County's new ordinance barring people from passing out handbills to tourists on the Strip say the law is seriously flawed and won't pass constitutional muster if challenged.

The board unanimously approved the ordinance Tuesday, after an hour-long parade of supportive testimony from hotel-casino representatives, the convention authority and the Metro Police bike patrol.

While some comments targeted public safety, traffic congestion and litter, much of the testimony focused on shielding tourists from sleazy people passing out fliers promoting escort services and strip clubs.

"We want to make sure tourists are not harassed with a barrage of literature," Commission Chairwoman Yvonne Atkinson Gates said. "To not be harassed, that is a right we are all entitled to. If you take that right away you may as well give away the right to speak freely."

Mirage attorney Catherine Delaney praised the ordinance because it targets not only adult literature, but people from other hotel-casinos hawking their buffets and attractions "on our sidewalk."

But a handful of citizens warned that the new ordinance was a breach of their First Amendment rights.

"Don't give up the right of free speech for security," said Michael Pasek, an electrician who works for the Las Vegas Convention Center.

Susan Hahn, who hires independent contractors to spread handbills for casino-hotels, rock concert promoters, and radio stations, warned that the law would stop her from doing business as well as the so-called "smut peddlers."

"I have a problem as well with adult-oriented literature, because it makes our job harder, having to explain we're not like them, and fighting over territory with them," Hahn said.

The ordinance was crafted by county attorneys after scouring case law to find what ordinances restricting handbills and adult literature had passed constitutional muster in other states.

The final product is based on a Key West, Fla., ordinance that bans handbill hawkers in the city's tourist district. Key West officials said the law was created to cut down on litter, congestion and noise and was passed in response to complaints from tourists and business owners on the popular Duval Street.

The distinction made between non-commercial and commercial literature makes the ordinance content-based and "raises the unconstitutionality of this ordinance on its face," Nevada ACLU director Gary Peck said.

The ordinance also has the potential to be too broadly interpreted because the definitions are too vague, Peck said. For example, a trade unionist passing out literature explaining he's on strike for a pay increase could be construed as having an economic motivation and commercial purpose, he said.

And the comments made by commissioners about eliminating smut and not having children see it demonstrates that the heart of the ordinance is content-based, he said.

Peck said he would discuss possible action with his executive board.

JoNell Thomas, an associate of prominent defense attorney Dominic Gentile, said their firm has not made a decision yet, but would likely file an injunction to prevent the ordinance from being enforced.

Myrna Williams, whose district includes most of the Strip, took offense at "people presuming they know what's best for the public."

Paul Larsen, an attorney for the Nevada Resort Association, said he was confident in the constitutionality of the ordinance.

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