Las Vegas Sun

April 16, 2014

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Strip ban on handbills challenged

A county ordinance stifling the handbilling on the Las Vegas Strip that became a national embarrassment for the city will be the focus of arguments today before the U.S. Ninth Circuit Court of Appeals.

Two companies had caused an uproar among casino owners, civic leaders and the public because the handbills they distributed advertised outcall entertainment services that Metro Police say are fronts for prostitution.

Tourists, often with their wives and children present, were accosted by handbillers passing out the often explicit ads, and discarded pamphlets littered the streets.

This caused a flurry of legal actions by Metro -- resulting in dozens of misdemeanor cases that are still in limbo -- and civil actions by casinos whose patrons were confronted by handbillers.

There also was action by the Clark County Commission in the form of the challenged ordinance that prohibits all handbilling and canvassing on sidewalks in the resort district while allowing distribution through news racks and signs.

The county's ordinance was challenged in the Las Vegas court of U.S. District Judge Lloyd George, who declared on March 4, 1997, that the controversial law passed constitutional muster.

George refused to grant an injunction sought by the handbilling companies that would have let them stay in business.

Joined by the American Civil Liberties Union of Nevada, the handbilling companies S.O.S. Inc. and Hillsboro Enterprises appealed to the circuit court in hopes of having the ordinance tossed out.

That would open the door to unfettered smut peddling along the Strip and downtown -- this time with the protection of a federal appeals court.

Lawyers for the handbillers argued in court briefs that "the public streets of Clark County belong to each of its citizens and may not be limited to uses desired by resort casinos and some of their customers."

ACLU lawyer Allen Lichtenstein argued that the court should look beyond the parties involved and rule on "the constitutionally protected rights of all other parties who are prevented from distributing material on the Las Vegas Strip."

While county attorneys have acknowledged that the distribution of erotic-dance information is protected speech, they characterized it as being on the outer perimeter of the First Amendment.

The county's allies in the case are the Nevada Resort Association, the Las Vegas Convention and Visitors Authority, the Flamingo Hilton hotel-casino, Mirage Resorts and Circus Circus Enterprises.

The questions for the circuit court judges include:

* Does the "speech" involved in the handbills fall under the protection of the First Amendment?

* Is the county's restriction of handbills constitutional?

* Is the ordinance unconstitutionally vague?

* Did George err when he denied the handbillers' motion for an injunction to prevent enforcement of the ordinance?

George had concluded that the county's ordinance was not enacted to interfere with the outcall-entertainment industry but to deal with such things as complaints that streets were being blocked by congregations of the handbillers.

Testimony before the Clark County Commission indicated that some tourists had been forced to walk in the street because of aggressive distributors.

George concluded that because of the harassment, safety and aesthetic problems, the county ordinance was a reasonable response.

He noted that the county, the city of Las Vegas and resort owners made efforts to resolve the problems of safety and littering.

The judge added that the county was not obligated to seek a compromise with handbillers because of a history of deliberate attempts to circumvent the law.

In dealing with the First Amendment issue, George ruled that alternative means of advertising were available through news racks, Yellow Page ads, taxi billboards and the Internet.

He concluded the handbilling was "commercial speech" that is less free than noncommercial speech such as political speeches or labor protests.

In court briefs, Las Vegas lawyers Dominic Gentile and JoNell Thomas, representing S.O.C. and its owner Richard Soranno, argued that the advertised erotic dancing is fully protected free speech.

The handbill companies, Gentile noted, "are not in the business of selling hot dogs, shoes or any other tangible product. They are in the business of providing referrals for erotic dance."

County attorneys, however, contend that while erotic dance in barrooms is protected expression, nude dancing in other locations is not protected.

Gentile countered, "Political discourse does not lose its First Amendment protection simply because it takes place in a private conversation between friends, rather than at a college symposium ... and erotic dance does not lose its protection simply because it is performed in a private setting."

In challenging the ban on safety and aesthetic grounds, the handbillers' lawyers argued that "littering and sidewalk-congestion concerns have never been considered to be sufficient interests to support a ban on leafletting."

The lawyers pointed out that, "Virtually identical ordinances have been found unconstitutional ... by the U.S. Supreme Court and other courts."

"In addition, the alternatives (in forms of advertising) suggested are neither relevant nor suitable substitutes," the brief states.

"The ordinance at issue here is essentially identical to the ordinance recently found unconstitutional by (the Ninth Circuit) court and the same result must follow here," the lawyers concluded in court documents.

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