ACLU vows to fight decision keeping anonymous fliers illegal

Adrienne Packer

Thursday, Feb. 15, 2001 | 10:57 a.m.

Despite protests from civil rights leaders, a U.S. District Court judge ruled Wednesday that anonymous fliers like the one that sunk Clark County Commissioner Lance Malone last year are unconstitutional.

"Although the importance of the right to remain anonymous is indisputable, that does not mean that anonymity is an absolute right," U.S. Judge David Hagen wrote in a four-page ruling.

Hagen's decision infuriated the American Civil Liberties Union, which quickly vowed to appeal the ruling.

"I am distressed that the case law we cited was not addressed in the opinion," ACLU attorney Allen Lichtenstein said. "That is grounds for an appeal, and we will definitely appeal to the next circuit."

The ACLU hopped on the case after Malone took Station Casinos Inc.to court over an anonymous flier that was mailed to his constituents.

An investigation finally proved that the mailer, which chastised Malone for his last-minute decision to go back on his word to Station Casinos and approve a competing project, was created by a Station executive.

The flier depicted Malone with money stuffed in his pockets and insinuated the commissioner could be bought. The mailer said, "You just can't trust Lance Malone" on one side and had a Malone "lucky buck" on the other. Malone eventually dropped his lawsuit, but the case was quickly picked up by a federal grand jury.

ACLU officials have argued the fliers are protected by First Amendment rights to privacy and free speech. They used an Ohio Supreme Court ruling to support their argument.

State Attorney General Frankie Sue Del Papa had countered that a federal appeals court upheld the ban on anonymous campaign materials in a Kentucky case.

Gary Peck, executive director of the ACLU of Nevada, said he was frustrated that it took Hagen more than six months to produce a four-page opinion.

"It fails to deal thoroughly with the mountain of case law supporting the ACLU's position," Peck said. "As a result, an entire campaign season passed without our being able to go to the 9th Circuit (Court of Appeals) to seek protection of the public's constitutional rights.

"We'll certainly go there now, and we are confident we'll prevail."