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Court limits handbilling, but splits on property rights

By Vin Suprynowicz
web posted May 28, 2001

The Nevada state Supreme Court ruled 5-1 on May 17 that The Mirage and Treasure Island casinos in Las Vegas are entitled to restrict the distribution of sexually oriented handbills on the private sidewalks in front of their establishments, even though the sidewalks are used by the public.

Reflecting the difficulty of navigating a course between the competing rights of private property and free expression, however, Justice Bob Rose dissented, arguing public thoroughfares are indeed public forums deserving of full first Amendment protection ... while even two of the concurring justices (Miriam Shearing and Chief Justice Bill Maupin) disagreed on why the leafletting in question can be banned.

(The seventh justice, Myron Leavitt, recused himself from the case.)

In his concurrence, Maupin noted that the public forum question was resolved by U.S. District Judge Philip Pro in April of 1999. Rejecting a request from The Venetian to bar union activists from picketing on its privately owned sidewalk, Judge Pro ruled in that case "Since the sidewalk performs an essential public function, the Venetian does not have the right to exclude individuals from the sidewalk based upon permissible exercises of their right to expression."

Thus, Judges Maupin and Shearing joined in the majority opinion not because they doubt the sidewalks are a public forum, but because (in Justice Maupin's words) "Commercial speech may be suppressed even where, as here, it is conducted in a traditional public forum. The handbills in this case advertise in-room erotic dancing with suggestive slogans. As such, they appear to solicit offers of illegal prostitution. Accordingly, I would hold that the appellants' commercial speech is unprotected by the First Amendment."

Unfortunately, given that no judicial determination has been made that the commerce advertised on these fliers is illegal, Judge Maupin's logic comes close to "We can ban advertising for some forms of commerce if I personally don't like the commerce, or if I find the advertisements themselves distasteful."

At least Justice Bob Rose cleaves to a more coherent principle when he dissents from the majority ruling entirely, writing "Because of the sidewalks' central location and important commercial function, I believe they are public forums regardless of private ownership."

Coherent, but still wrong ... just as Judge Pro was mostly wrong in 1999.

The First Amendment certainly does guarantee the freedom of speech and the right to peaceably assemble -- just not on someone else's private property (property rights being an unequally important undergirding of our free society.)

Supermarkets "perform an essential public function," unless food has suddenly gone out of style. Would Judge Pro thus hold that a theater troupe staging satires of current political events is free to start hauling lumber into the local Smith's or Raley's, erecting a stage next to the deli counter and putting on their performances every hour on the hour without the store owners' permission? What if the theater troupe insisted on performing in the nude? And passing out pamphlets of a graphic nature?

No one questions the right of American actors and playwrights to criticize or even ridicule our political leaders. They're even free to strip off their clothes, providing such displays are limited to the company of consenting adults who have knowingly volunteered for the experience. The question is whether they're authorized to piggyback on all the trouble and expense to which a grocery store owner goes to attract a crowd of shoppers to his or her store -- or for that matter, to barge into our living rooms and put on their exhibitions as they please -- without even asking permission.

And mind you, the supermarkets would also meet Justice Rose's test of "central location and important commercial function."

No, in this case Justice Cliff Young, writing for himself, the court, and Justices Deborah Agosti and Nancy Becker, has come closer to the truth of the matter, ruling that private property does not become a "public forum" over which the owners can no longer exercise any control or veto, simply because the public is invited to walk there.

"Privately owned property does not lose its private nature because the public traverses upon it," Justice Young wrote.

Amen to that.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $72 to Privacy Alert, 1475 Terminal Way, Suite E for Easy, Reno, NV 89502. His book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at 1-800-244-2224, or via web site www.thespiritof76.com/wacokillers.html.

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