Federal appeals court rules against county smut law

Clark County District Attorney Stewart Bell assembled a team of lawyers this morning to explore ways the county can legally keep smutty leaflets from being distributed on the Strip.

The county is scrambling to come up with alternatives after a 9th U.S. Circuit Court of Appeals judge ruled Friday that a Clark County ordinance prohibiting the distribution of handbills on the Strip is unconstitutional.

"We were surprised," Bell said Monday of the court's decision. "But we're going to get a copy of the ruling and research that area to determine what legally we can do to keep our streets clean."

The federal appellate court found the ordinance, which was passed in January 1997 to curb the distribution of obscene material on Las Vegas Boulevard -- the heart of the area's tourist industry -- is too vague.

The court ruled the ordinance is overbroad and prohibits constitutionally protected speech.

It ordered the U.S. District Court in Las Vegas to issue a preliminary injunction against enforcement of the ordinance while the case is heard by Judge Lloyd George.

Bell said that before the ordinance was drafted, county officials looked at what other popular cities did to stop the distribution of pamphlets, which eventually litter sidewalks. They found many had similar laws.

Before the Clark County Commission passed the ordinance, tourists complained about peddlers accosting them armed with smut-filled leaflets.

"We received lots and lots of calls about it," Bell said. "Since we have been successful the last couple of years, we have received no complaints. It was a good effort on behalf of the public, and we will make another effort as soon as possible."

The ordinance has been in limbo since Richard Soranno, whose company, Hillsboro Enterprises, distributes leaflets advertising erotic dance entertainment services, sued the county and appealed George's ruling that denied Soranno's request for an injunction against enforcement of the law.

County Commissioner Lorraine Hunt, sponsor of the ordinance, was upset when she learned of the court's ruling.

"The issue is not the right of free speech," Hunt, a candidate for lieutenant governor said Sunday, "It is the right of our visitors and our citizens to walk without fear of harassment."

Gary Peck, executive director of the American Civil Liberties Union of Nevada, and ACLU co-operating attorney Allen Lichtenstein were elated by the court's ruling.

"This is yet another great victory for civil libertarians who take seriously First Amendment rights," Peck said.

Lichtenstein called the decision an important ruling not merely for Las Vegas but for the entire nation.

"There is a trend going on around the country, not just Las Vegas, in which officials are trying to control First Amendment actions on the streets," he said. "There have been cases throughout the country on this issue."

If the ordinance were allowed to be enforced, noted Lichtenstein, it could limit all speech that is constitutionally protected -- whether of a religious nature, newspapers or any other form of speech.

The ordinance was crafted by county attorneys after searching case law to find what ordinances restricting handbills and adult literature had passed constitutional muster in other states.

The ordinance prohibits off-premises commercial canvassing in areas surrounding the Strip and the Las Vegas Convention Center.

The final document was based on a Key West, Fla., ordinance that bans handbill hawkers in the city's tourist district. Key West officials said the law was created to cut down on litter, congestion and noise and was passed in response to complaints from tourists and business owners on the popular Duval Street.

The distinction made between non-commercial and commercial literature makes the ordinance content-based and "raises the unconstitutionality of this ordinance on its face," Peck said.

"Las Vegas tends to push the envelope," Lichtenstein said. "It tries to treat the entire resort area (on Las Vegas Boulevard) as if it is subject to the same rules as private property."

He said the businesses that have the most to gain from tourism here want total control of the environment.

"I wouldn't want to live in some twisted Disneyland world where everything was controlled," Peck said.

Hunt said she has not yet had time to discuss the matter with the county's attorney, but it will be the first thing on her agenda today.

"I will do everything I possibly can, to do whatever can be done to legally uphold what we have accomplished," Hunt said.

But canvassers who distribute the controversial leaflets may already be on the Strip handing out their material.

"If Mr. Soranno doesn't already have them out distributing, I would be very surprised," said Soranno's attorney, Dominic Gentile.

Soranno sued the county shortly after the ordinance was passed on Jan. 21, 1997.

"When the 9th Circuit entered this opinion, it basically sent a message to Judge George that the position we took will probably succeed," Gentile said.

The appeal on the motion to intervene filed on behalf of Soranno by Gentile and by the ACLU as intervenors, asserted that since Soranno probably would prevail if the lawsuit moved forward, then the county should be enjoined at this stage of the proceedings from enforcing the law.

The appeals court agreed that Soranno, based upon facts now before the court, probably would win on constitutional grounds.

The court gave the county a number of options, including going on with the case but offering additional evidence that the county cannot achieve its legitimate interests through other less restrictive means.

Or the county may write a new ordinance, which Lichtenstein said he would be willing to participate in.

He said there are ways to write an ordinance that would accomplish some of the county's goals and protect First Amendment rights as well.

Hunt said there are many opportunities to protect the right of freedom of speech on the Strip.

But, she said, it is also important to protect those who walk the Strip and are being harassed and intimidated by people who hand out flyers that end up as litter.

"It became a public safety issue," she said, "because people were stepping off the sidewalks and onto the streets to avoid the canvassers."

The canvassers created a major image problem in a city where image is very important, Hunt said.

Peck said while trying to protect its image, city and county officials routinely fail to protect First Amendment rights.

"We live in a Democratic society where we can express ourselves," he said. "The way to handle that is not with blanket bans."

In its decision, the appeals court noted that a "substantial amount of speech unrelated to Clark County's asserted interests is regulated by the ordinance; that the geographic scope is too broad and that there is no evidence in the record that only commercial canvassers harass pedestrians."

The court also noted that the county's goal was to improve the pedestrian environment, prevent harassment of pedestrians, to maintain accessible sidewalks and to reduce litter.

The city and county have an interest in protecting the aesthetic appearance of their communities, but the interests may not be compelling when they are at odds with the First Amendment, the court said.

Staff writer Adrienne Packer contributed to this story.

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