It's a typical scene here: Solicitors prowl the Strip and accost tourists with leaflets offering "exotic dancers." Police say it is a poorly veiled front for hotel prostitutes.
Image-conscious casinos cringe at the sight of these marketers and some have been arrested after casinos complained about trespassers on private sidewalks.
The dispute is part of the escalating legal warfare over who controls the sidewalks of the Las Vegas Strip, a magnet for 35 million visitors a year.
Clark County officials and some casinos have sought to restrict businesses from distributing sexually explicit fliers to pedestrians. And owners of the Venetian resort are battling in federal court to keep labor activists from picketing on privately owned walkways.
Critics say attempts to control sidewalk activities violate the U.S. Constitution.
"The resort hotels in this city, and their allies in government, want to turn Las Vegas into the equivalent of a private theme park," said Allen Lichtenstein, general counsel of the American Civil Liberties Union of Nevada. "The implications go far beyond the Strip and whether tourists don't like the handbillers, and go to the public's 1st Amendment rights to use public sidewalks as forums for any free-speech activities."
The U.S. Supreme Court has said time and again that public sidewalks serve as constitutionally protected public forums, the quintessential venue for opinionated people. Some Las Vegas casinos, however, have built private sidewalks to replace ones lost with the widening of the Strip, and then claimed control of the new walkways.
State vs. Federal Court
The Nevada Supreme Court has sided with the casinos, ruling May 17 that the Mirage and Treasure Island casinos could legally evict leafleteers offering call girl services.
Three justices agreed with the casinos' contention that the sidewalks were privately owned, and two others said that, ownership aside, the fliers appeared to be promoting illegal prostitution and so were not protected by the 1st Amendment.
The federal courts have offered a different view. A three-judge panel of the U.S. 9th Circuit Court of Appeals in San Francisco recently ruled, 2 to 1, that the sidewalk in front of the Venetian resort, while privately owned by the casino, remains a public forum where free speech can be exercised.
The opinion, filed July 12, came after the Venetian tried to ban the local culinary union from picketing in front of the nonunion casino, protesting the Venetian's refusal to collectively bargain with employees.
Appellate Judges Mary M. Schroeder and Procter Hug Jr. found that because the Venetian's sidewalk replaced a public one when the Strip was widened, and that because pedestrians had no other way of walking past the casino, the new walkway functionally remained "the archetype of a traditional public forum."
Judge Melvin Brunetti dissented, writing that the county and state "bargained away" any public rights to the new sidewalk when they allowed the Venetian to build the replacement walkway.
The Venetian is appealing the decision, said attorney Walter E. Dellinger, who argued the case on behalf of the casino and is a former acting U.S. solicitor general.
"We remain convinced," Dellinger said, "that the area in question is the property of the Venetian."
The 9th Circuit's ruling should be heeded by the Nevada Supreme Court, said attorneys for two companies in town that operate outcall services, which dispatch dancers to customers.
"This ruling absolutely opens the door" in arguing that the state court should reconsider its ruling on behalf of Mirage and Treasure Island, said Jonell Thomas, attorney for Hillsboro Enterprises.
"Just because the old sidewalk was ripped away to widen the street, and the new one is on your property, doesn't give you the right to run around the 1st Amendment," she said.
Added Cal Potter, attorney for S.O.C. Inc., another outcall service: "Leafleting is as American as apple pie, going back to Thomas Paine leafleting with 'Common Sense.' "
A spokesman for Mirage and Treasure Island declined to comment, citing the pending litigation.
Also still unresolved is the county's own efforts to restrict leafleting up and down the Strip. A 1997 county ordinance bans what it called "parasite marketers" along Las Vegas Boulevard, citing their dangerous interference with pedestrians and the ensuing litter problem when tourists accept the handouts, then drop them on the ground.
U.S. District Judge Lloyd George in Las Vegas upheld the ordinance. But the outcall services and the ACLU successfully appealed to the 9th Circuit on the grounds that the ordinance was overly broad in defining the kind of activity the county was trying to ban.
County officials rewrote the ordinance in 1999 but George rejected it, finding the new version did not properly define what kind of printed material would be banned.
'Constitutional Law 101'
Lichtenstein contends that the ordinance could go far beyond sex marketers and limit distribution of advertising-laden materials involving such issues as gun control, abortion or nuclear waste disposal.
"What you could end up with," he said, "is a street cop looking at publications and saying that, in his expert opinion, this is banned, but that is not."
The National Coalition Against Censorship also expressed concern about the privatization of public forums and government efforts to crack down on free speech.
"This is Constitutional Law 101," spokesman Gary Daniels said. "Just because someone doesn't like the message, that's not a constitutionally permissible reason for government to step in and say you can't hand out that information. This is the same reason the Ku Klux Klan can go to a town square and hold a rally, no matter how controversial their message is."
Attorneys are filing final legal briefs on the county's ordinance; After George makes his ruling, the case is expected to be appealed to the 9th Circuit.
In the meantime, leafleting remains active along the Strip.
Among the county's concerns is that pedestrians frequently avoid the leafleteers by walking onto the street, said Michael Davidson, who heads the civil division of the Clark County district attorney's office.
"Our concern is not the content of the material being handed out," he said, "but because of what happens when aggressive leafleteers force moms, dads and kids onto the street to avoid having offensive material jammed into their hands. It becomes a health and safety issue."