Court to decide sidewalk pamphlet issue

Monday, Nov. 10, 2003 | 11:17 a.m.

The Mirage hotel will have to go to court next year to rid itself permanently of the commercial solicitors distributing pornographic handbills on the private sidewalks outside its property.

District Judge Michael Cherry denied motions for summary judgment Friday after both The Mirage's attorney and attorneys for Hillsboro Enterprises, the pamphlet distributor, raised issues Cherry said needed to be decided in trial.

The 5-year-old case addresses whether commercial speech is protected under the First Amendment on a private walkway and began in April 1999, when casinos sought and won a temporary injunction against the pamphleteers.

The Nevada Supreme Court split on the issue in May 2001, with the majority deciding that private sidewalks are not public forums and that First Amendment rights do not apply to commercial solicitors on private property. Even the Nevada Supreme Court justices who viewed the sidewalks as a public forum said commercial speech promoting illegal activity, such as the pamphlets that "appear to solicit offers of illegal prostitution," would not be protected by the First Amendment.

The court referred the case back to Cherry to decide if a permanent injunction should be issued.

A trial next year needs to address whether The Mirage was a state actor, whether the sidewalk was a public forum and whether the commercial speech was deceptive or illegal, Cherry said.

Mirage attorney Todd Bice argued that First Amendment rights for commercial speech applies to the private sidewalks only if the court finds The Mirage is a state actor, taking on all the functions of a government municipality.

Bice said a few courts have applied First Amendment rights to private property, but that "no court has extended it to mean that your private property has to extend to commercial speech."

Attorneys for Hillsboro argued that the real issue is not whether The Mirage is a state actor in this case but whether the sidewalk is a public forum. Attorney Clyde DeWitt argued that the sidewalk is a public forum under the criteria established in a similar case the American Civil Liberties Union brought against the county considering an ordinance restricting pamphlets on Fremont Street. The sidewalk functions as a public thoroughfare, DeWitt said.

"It's been a public thoroughfare since Bugsy Siegel," DeWitt said.

DeWitt and his fellow attorneys also argued that the court cannot restrict the First Amendment rights of one type of speech and not others.

"Either it is a public forum for all types of speech, including commercial, or it is not," DeWitt said.

Gary Peck, executive director for ACLU of Southern Nevada, said he expects the courts to eventually rule in favor of protecting the First Amendment rights of Hillsboro Enterprises and the rest of the commercial solicitors on the Strip.

"I'm confident that, at the end of the day, that is where this case will end up," Peck said.