County will consider new anti-smut law

Bill Gang

Tuesday, April 20, 1999 | 11:16 a.m.

The Clark County Commission will consider a new ordinance today aimed at controlling smut peddlers on the Strip as the legality of the old ordinance remains in limbo.

A federal court hearing Monday on a lawsuit brought against the ordinance by the American Civil Liberties Union failed to resolve any substantial issues. Only the ACLU lawyer appeared.

Another hearing will be held next week to consider whether to take down signs along the Strip that prohibit distributing handbills. The 9th U.S. Circuit Court of Appeals has ruled that the signs are illegal.

Senior U.S. District Judge Lloyd George asked whether an out-of-court settlement would be possible on the politically volatile issue. He was rebuffed by the ACLU.

"It's an unconstitutional ordinance we are challenging," ACLU Director Gary Peck said. "We are not settling."

The ordinance is aimed at those who distribute handbills for out-call adult entertainment businesses, but the ACLU sees its case as being about "broader and deeper First Amendment issues."

"It's fair to characterize this as a war on the First Amendment, and the public ought to be deeply distressed," Peck said.

The federal court case could be dismissed at the request of county attorneys, however, if the new ordinance is given final approval as expected at the May 4 County Commission meeting.

"There is no reason to have a trial on the old ordinance if a new ordinance is in place," Deputy District Attorney Robert Gower said.

ACLU attorney Allen Lichtenstein said the fight would not end there. He has seen a draft of the new ordinance, he said, and it is "virtually identical to the old and has the same constitutional flaws."

The Sept. 27 trial date over the initial court challenge should stand to permit a rapid court challenge of the new ordinance, Lichtenstein said.

Assistant District Attorney Michael Davidson said the new ordinance has been rewritten to address concerns voiced by the 9th Circuit Court. It even adopts some of the appellate court language.

The changes include narrowing the territory affected by the ordinance and tightening the definition of the material to be controlled to limit commercial speech as opposed to other forms of speech and expression.

But Davidson said he also understands that the ultimate decision on the legality of the new version will again fall to the court system.

During Monday's hearing, George did not issue an injunction as had been the directive of the appeals court earlier this year.

That injunction was to keep the county from enforcing the current ordinance outlawing the distribution of handbills advertising out-call services, which law enforcement has said are just thinly veiled prostitution services.

Davidson has said the injunction actually is unnecessary because the county is not enforcing the ordinance.

But Lichtenstein said George's failure to issue an injunction "causes us considerable concern."

"I hope and assume that a federal judge wouldn't ignore the Ninth Circuit Court," said Lichtenstein.