Federal appeals court rules against county's smut law

The Ninth Circuit Court of Appeals on Friday ordered Clark County to stop enforcing a 19-month-old ordinance that prohibits the distribution of handbills on Las Vegas Boulevard.

The federal appellate court found that Ordinance 16.12, passed in January 1997 in an effort to curb so-called smut material in the heart of the local tourism industry, is too vague and overbroad and in effect 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 still being litigated before Judge Lloyd George.

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

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 said Sunday, "it is the right of our visitors and our citizens to walk without fear of harassment."

American Civil Liberty's Union of Nevada Executive Director Gary Peck 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 Ninth 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.

Gentile called the decision "a great victory for anyone who wants to state their position in writing but who needs to seek advertising dollars in order to do it.

"More importantly it tells the big shots on Las Vegas Boulevard that the people who own the resorts ... the First Amendment is bigger than they are."

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