Casinos win round versus porn handbills

Friday, May 18, 2001 | 11:24 a.m.

CARSON CITY -- Casinos along the Las Vegas Strip have won a preliminary battle in the Nevada Supreme Court to stop the distribution of pornographic handbills on the private sidewalks in front of their properties.

In a split decision, the court ruled Thursday that private sidewalks are not public forums and First Amendment Rights do not apply to the people handing out these advertisements.

But Gary Peck, executive director of the ACLU, said this "splintered decision in no way prevents other people from handing out other commercial handbills" on the Strip or sidewalks.

He said federal courts have ruled that private sidewalks are still public forums and the issue will be settled in those courts.

The court upheld District Judge Michael Cherry, who issued a preliminary injunction stopping the distribution of handbills in front of the Mirage and Treasure Island hotel-casinos. But they have granted an easement to the county to allow the public to use them.

Employees of Hillsboro Enterprises distributed handbills advertising in-room erotic dancing with suggestive slogans and photos. The casinos sought an injunction to stop the practice.

Justice Cliff Young, who wrote the majority decision, rejected the arguments of Hillsboro that these sidewalks, no matter who owns them, are a public forum. "We conclude that private property does not lose its private nature because it is open to the public," said Young.

The majority decision also said neither the U.S. Constitution nor the Nevada Constitution gives protection to the distribution of this material. Signing on the majority opinion were Deborah Agosti and Nancy Becker.

Chief Justice Bill Maupin and Justice Miriam Shearing wrote a concurring opinion, one that differed, however, on the sidewalk issue. The opinion referred to a federal court decision on the Venetian hotel-casino, which is across the street from the two casinos in the present case. Their opinion held that the sidewalk was public because the federal court allowed union activity.

But Maupin said the issue at the Venetian was different. "Unlike union protests or religious proselytizing, commercial speech enjoys limited First Amendment protection." The handbills in front of the Mirage and Treasure Island "appear to solicit offers of illegal prostitution," Maupin wrote. "I would hold that the appellants' commercial speech is unprotected by the First Amendment."

Justice Bob Rose dissented, saying these are "traditional public sidewalks."

"Once the property is determined to be a public forum, the full panoply of First Amendment rights must be recognized and honored," Rose said.

But he said commercial speech promoting illegal activity does not enjoy protection of the First Amendment.

He said the case should be sent back to District Court for a determination if this was illegal activity.

The Venetian case, referred to by Maupin, is pending before the 9th U.S. Circuit Court of Appeals, which heard arguments last year.

In the Mirage and Treasure Island case, it will now be up to Cherry to decide if a permanent injunction should be issued.