Monday, Sept. 27, 2004 | 10:39 a.m.
Members of the Nevada Gaming Commission have taken controversial billboards and sexually charged advertisements out of play in a complaint that has been under a community microscope since January.
Saying the state's beef with the Hard Rock Hotel was never about the First Amendment or the sexual content of the resort's ads, commissioners voted to dismiss two counts of a complaint and focus primarily on whether the Hard Rock reneged on its promise to run promotional materials through a compliance committee.
An evidentiary hearing -- in essence, a trial at which commissioners will serve as a panel of judges -- is scheduled at the commission's Nov. 18 meeting to consider the last matter being contended.
That issue came into focus in May when state Gaming Control Board member Bobby Siller wrote a letter explaining why he wasn't signing off on a settlement agreement that had been reached between the state and the Hard Rock, a settlement that ultimately was rejected by the commission.
Siller's letter said, "I was told, both in writing and orally, that future Hard Rock advertisements which contain 'questionable elements' would be channeled through the compliance committee. This committee was composed of Hard Rock management and other individuals experienced in gaming in Nevada and sufficiently mature to assure that any advertising or promotion effort to reach the young crowd would not violate gaming regulations. Unfortunately, I have been disappointed."
Commission Chairman Peter Bernhard encouraged attorneys for the state and the Hard Rock to go back to negotiating a settlement between now and the Nov. 18 hearing date, a task that may be less daunting, now that the advertising issue has been dismissed.
Several community activists, hoping the state's complaint against the Hard Rock would become a forum for debating community advertising standards and taste, left the meeting disappointed.
Michael Wixom, an attorney and a member of the group known as the Main Street Billboard Committee, made an appearance under the commission's public comment section of the agenda, well before commissioners took up the Hard Rock issue. He encouraged commissioners to consider community standards when deliberating about the advertising issue.
Wixom said today that while representatives of the organization left the meeting disappointed, it's still possible that some good could come out of the matter.
"There are two possible outcomes: We could be faced with an avalanche of such advertising because there really is no restraint and everybody will be pushing all the boundaries, or the individuals who have been a part of this over the last year or so will take a step back and see what is in the best interest of the community," Wixom said.
"Our hope is that they have heard the community and they don't ignore us," he said. "We have a stake in our community and we don't want to be ignored."
Also unheard were representatives of the American Civil Liberties Union of Nevada, who were prepared to argue on behalf of the Hard Rock. The ACLU had filed "friend of the court" briefs in the matter, championing First Amendment points on behalf of the Hard Rocks right to commercial speech.
The ACLU also was prepared to argue that state regulations related to advertising have no standards, guidelines or criteria as to how businesses should be treated in actions involving free speech.
Gary Peck, executive director of the Nevada ACLU, said he was happy that commissioners dismissed the counts related to advertising and only mildly disappointed that the ACLU did not get to present its arguments.
"This was a good day for the First Amendment," Peck said late Friday. "The commission made a very clear record that it is not the commissions job to regulate ads based on their content except to look at whether they propose illegal activities or are obscene."
"It would have been a better day for the First Amendment if the chair and other commissioners also would have acknowledged that the regulations themselves should be rewritten," Peck said. "This chair seems to understand the constitutional limits, but there's no guarantee that the next chair and the next commission also will recognize them."
But commissioners made it clear before the vote was taken that they didn't feel they were in the middle of a First Amendment argument -- even though the resulting action seemed to support that contention to some.
Commissioner John Moran said he looked at it more as a matter of commissioners' determining whether the Hard Rock's ads advocated anything illegal.
Ultimately, commissioners conceded that while the ads glorified certain questionable activities, they didn't advocate them or encourage anything illegal. Bernhard equated the issue to the resort saying, "hurry down to the Hard Rock," but not "drive 70 mph on Paradise Road to get to the Hard Rock."
Commissioners concurred that the ads were satirical in nature and did not condone illegal activity, although some expressed concern about how it represented the image of gambling and Nevada.
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