Judge bans sex leaflets in front of Strip hotels

Given the history of the debate over who can do what on sidewalks fronting Strip resorts, civil rights leaders weren't shocked by a District Court judge's Wednesday ruling to banish outcall service pamphleteers from the walkways.

But they were stunned that such a judgment would flow from the mouth of Michael Cherry, former chairman of the Southern Nevada chapter of the American Civil Liberties Union.

"Essentially, this decision is contrary to everything the ACLU stands for," Allen Lichtenstein, attorney for the civil rights organization, said.

Cherry ruled in favor of Mirage Resorts Inc., issuing a preliminary injunction that prohibits outcall services S.O.C. and Hillsboro Enterprises and their hired distributors from handing out pamphlets along Treasure Island's boardwalk or in front of The Mirage.

"I'm definitely going to limit my decision to the people in front of me," Cherry said. "I'm not the kind of judge who makes a blanket decision."

Cherry rejected Hillsboro attorney Bradley Hofland's request for a stay of the injunction, saying Mirage Resorts owns the sidewalks and could suffer irreparable damages.

"There are a great deal of problems saying you can't protect private property," Cherry said. "Mirage and Treasure Island have a right to regulate their property."

Mirage Resorts attorney Todd Bice declined to comment after the hearing.

ACLU representatives were further floored by Cherry's opinion about a sidewalk dispute that involved the Venetian and the Culinary and Bartenders Union that was settled in April by U.S. District Court Judge Philip Pro.

Cherry said Pro's decision, which said rights of private property do not extend to sidewalks, dealt solely with labor workers.

"It was clear to me that Judge Pro was making a ruling involving labor speech," Cherry said. "What he would have ruled had this case arisen I don't know."

Lichtenstein and Gary Peck, executive director of the ACLU of Nevada, emphasized that nowhere in Pro's decision are labor unions mentioned. And if the judgment was aimed solely at unions, the ruling would have been unconstitutional, Peck said.

"You cannot in a public forum make an exception for labor unions; you can't say labor unions have First Amendment rights and nobody else does," Peck said. "The rationale offered that the federal court ruling only applied to labor unions is just utter nonsense."

The ACLU officials also were disturbed that Cherry never mentioned an August decision by U.S. 9th Circuit Court of Appeals that overturned Clark County's handbill ordinance. The court's decision ruled that sidewalks, whether or not they're on private property, are public forums.

"There is no dispute that the Ordinance regulates activities occurring in a public forum -- 'a place that has immemorially been held in trust for the use of the public ... for purposes of assembly, communicating thoughts between citizens, and discussing public questions,' " the decision reads.

As additional megaresorts spring up along Las Vegas Boulevard, the street is widened to accommodate the increased amount of traffic. As a result, sidewalks are pushed on hotels' property.

The debate about whether handbill distributors can stand on sidewalks in front of hotel-casinos pushing sexually oriented pamphlets in the faces of tourists has been in and out of the courts since 1995.

District Judge Don Chairez ruled in favor of hotel-casinos in 1995, saying no commercial activities, including speech, are permitted on the private sidewalks.

Chairez' opinion was superseded by both the Appeals Court decision and Pro's ruling, Lichtenstein said. Cherry's decision, however, again threatens First Amendment rights that protect commercial speech, Peck added.

"Sidewalks are the principle place where ordinary people without money or influence can speak their minds without government interference or interference from private businesses who don't like the message," Peck said.

Cherry said he did not take into account Mirage attorneys' claims that outcall services are a front for prostitution. He said he would have come to the same conclusion had attorneys handed out pamphlets encouraging accident victims to hire lawyers or mechanics distributed leaflets urging motorists to use their shops.

The ACLU vowed to appeal Cherry's decision. Hofland said he planned to file an emergency writ to the Supreme Court requesting a stay on Cherry's decision until the higher court has an opportunity to hear the case.

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