Handbill case back in court

Following Monday's arguments before the U.S. 9th Circuit Court of Appeals over a challenge to a county ordinance banning handbilling on the Las Vegas Strip, both sides say they are cautiously optimistic about their chances.

But while attorneys for the county and the Nevada Resort Association focused on their continued concerns about stopping smut peddlers that jammed sidewalks and accosted tourists, the Nevada head of the American Civil Liberties Union said there is more at stake than tourism.

Gary Peck said the ACLU's position is that the ordinance as passed is unconstitutionally broad because it affects noncommercial activities as well as commercial activities like the unwanted handbillers who pass out ads for erotic entertainment services.

While attorneys for two handbilling companies who filed lawsuits over the ordinance argued the issue of commercial freedom, ACLU attorney Allen Lichtenstein argued for others who may want to use the Strip sidewalks to send out a message.

"We believe this case is far more important than street peddling, although we believe they have a right to be out there leafletting," Peck said.

He conceded the county has a right to control litter and pedestrian flow problems, "but that can't be done with the heavy hand used in this case ... ignoring First Amendment rights."

U.S. District Judge Lloyd George had considered the lawsuit and ruled the county's ordinance passed constitutional muster. It is his decision not to grant an injunction prohibiting enforcement of the ordinance that S.O.C. Inc. and Hillsboro Enterprises are challenging in their appeal.

Peck said the ACLU joined the fray to expand the scope of the challenge to noncommercial free speech issues.

He said he is "confident" the federal appeals court will see the situation in Las Vegas is "a mess" and declare the ordinance unconstitutional.

If that occurs, it is expected that would send handbillers scurrying back to the Strip and send county officials scrambling to craft new legislation to control it.

Deputy District Attorney Robert Gower said he was pleased with the county's presentation Monday to the three-judge panel, but he conceded that "sometimes you think you are going to win and you lose."

He said he emphasized that the county had tried several alternatives to control the handbillers -- who became something of a national embarrassment because of their aggressive tactics and the explicit nature of the ads -- before passing the restrictive ordinance.

NRA attorney David Frederick said that because of the nature of the case he expects a "relatively detailed statement" from the court.

When the decision will be handed down, the attorneys agreed, could vary from a few weeks to many months.

Whether the case goes beyond the appeals court to the U.S. Supreme Court is something that the attorneys say won't be known until the latest challenge is decided.

"It depends on what the order says, but yes, it could entail an appeal," Gower said.

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