Another fight for smut on the Strip

The fight over smut peddlers handing out sex-oriented fliers along Strip sidewalks is back in court for the third round.

The Mirage and Treasure Island resorts filed a lawsuit Thursday in state court lawsuit to keep the handbillers from operating in front of their properties.

The U.S. Ninth Circuit Court of Appeals has twice rejected Clark County's ordinance prohibiting handbilling on the Strip sidewalks as unconstitutional.

For years there have been complaints that the handbillers have offended tourists with aggressive tactics, clogged sidewalks and created piles of trash, but the ordinance passed by the county commission was declared to be improperly restrictive.

The new lawsuit by the resorts claims that the sidewalks are private property and peddlers are conducting business without their permission.

But American Civil Liberties Union attorney Allen Lichtenstein said that issue already has been the subject of federal court litigation and rejected.

Meanwhile, the ACLU has filed another legal action in federal court complaining that despite the appeals court decisions, Clark County is refusing to remove signs along the Strip sidewalks that still declare handbilling to be illegal.

That will be a subject of a hearing Monday in the courtroom of Senior U.S. District Judge Lloyd George.

Assistant District Attorney Michael Davidson said the signs citing the unconstitutional statute wouldn't be removed from Strip light posts because of the $10,000 cost involved and the likelihood that county commissioners would pass a new anti-handbilling ordinance.

"That doesn't seem like a real good use of taxpayer money," Davidson said, adding that a new anti-smut peddler ordinance will be introduced at Tuesday's County Commission meeting.

"That tells people they are subject to arrest for violating a law that is not yet written," Lichtenstein said.

Davidson also said there is no requirement to remove a law from the books just because it has been declared unconstitutional and can't be enforced.

"That seems like it would have a chilling effect on people exercising their constitutional rights," Lichtenstein said.

The resorts' state court lawsuit, filed through attorney Todd Bice, targets three companies that it says are distributors and publishers of "adult entertainment and/or prostitution advertisements."

Named in the property rights lawsuit are S.O.C. Inc., Hillsboro Enterprises Inc. and Angel Santana doing business as Star Entertainment along with 100 unidentified handbillers.

The lawsuit maintains the Mirage and Treasure Island sidewalks are not public property and do not rest on the public right-of-way although the public has free access to the walkways.

The handbillers "are not engaged in a pedestrian use of the sidewalks and instead are using this privately owned property as a place of business without the owners' consent," the lawsuit alleges.

Fliers discarded by pedestrians litter the fountain around the Mirage's volcano attraction, the lawsuit complains.

Calling the handbillers' use of the sidewalks to be an "oppressive and malicious disregard of property rights," the lawsuit seeks unspecified general and punitive damages along with an injunction ordering handbillers off the property.

Lichtenstein questioned the resorts' legal position because when the county ordinance was in effect, their attorneys conceded the privately owned sidewalks were subject to the county law.

"It seems they want to have it both ways, or any way they can figure out to keep people they don't like from exercising their constitutional rights," he said.

In August, a county ordinance that had kept the Strip free of handbillers for months was ruled unconstitutionally vague and overbroad by the federal appeals court panel. In January, an attempt to win reconsideration through a hearing in front of the full court was rejected.

That left intact an injunction from the appeals court ordering Clark County to stop enforcing its 19-month-old ordinance.

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