By David L. Hudson, Jr.

A Clark County, Nev., ordinance restricting the distribution of handbills along the Las Vegas Strip violates First Amendment rights, ruled the U.S. Court of Appeals for the Ninth Circuit in S.O.C., Inc. v. County of Clark.

The ordinance, enacted in January 1997, makes it a misdemeanor to engage in "off-premises canvassing" within the Las Vegas Resort District. Many casino-hotel operators supported the handbill ordinance because they wanted to stop "smut peddlers" from circulating handbills for adult entertainment in the area.

The law defines "off-premises canvassing" as the distribution on public sidewalks of "handbills, leaflets, brochures, pamphlets, or

Many Casino-hotel operators supported the hand-bill ordinance because they wanted to stop "smut peddlers" in the area.

other printed or written literature, materials or information, which advertise or promote services or goods for sale, lease, or rent or which otherwise propose one or more commercial transactions."

The ordinance exempts leaflets in authorized newsracks. County officials claimed the ordinance served four goals: (1) improving the pedestrian environment; (2) maintaining accessible sidewalks; (3) preventing harassment of pedestrians; and (4) reducing litter.

S.O.C., Inc. and Hillsboro Enterprises, two companies that hire canvassers to hand out erotic entertainment ads, challenged the ordinance in federal district court, which denied the companies' motion for a preliminary injunction. The court ruled that the ordinance regulated purely commercial speech and passed the Central Hudson test for such regulations.

On appeal, the appellants contended the ordinance was unconstitutionally overbroad because it restricted more than commercial speech. The ordinance also affected noncommercial speech that was "inextricably intertwined" with commercial speech.

Citing Bates v. State Bar of Arizona, county attorneys pointed out that the overbreadth doctrine is generally inapplicable when examining the constitutionality of commercial speech regulations.

However, the Ninth Circuit determined the doctrine applicable because the ordinance restricted both commercial and noncommercial speech. County attorneys argued that the language of the ordinance tracked the characteristics of commercial speech identified by the U.S. Supreme Court in Bolger v. Youngs Drug Products Corp.: (1) use of an advertising format; (2) reference to a particular product; and (3) economic motive.

While the ordinance did closely track the language of Bolger, the Ninth Circuit noted that it did not contain "any limiting language" referring to commercial speech -- such as the words "solely, exclusively, or primarily"- to make sure the ordinance did not infringe on noncommercial expression.

"Absent such a limitation", the court wrote, "there is a substantial likelihood that the Clark County ordinance could inhibit the expression of fully protected speech intertwined with commercial speech."

According to the court, the ordinance could prohibit distribution of a newspaper devoted primarily to advancing a particular social, religious, or environmental message but which contained commercial advertising.

Determining the "Central Hudson" test inapplicable, the appeals court then asked whether the ordinance, which regulates speech in a public forum (sidewalks), was a reasonable time, place, and manner restriction.

Time, place, and manner restrictions must be content-neutral. "By distinguishing between commercial and noncommercial forms of expression, the Clark County ordinance is content-based," the court wrote.

Presumptively unconstitutional, content-based restrictions must serve a compelling governmental interest by the least restrictive means possible. While the government may have "substantial" interest in protecting pedestrians from harassment and in furthering aesthetic concerns, the county "has not offered any reason why its interests are compelling", the court wrote.

The court then noted that the ordinance is not "narrowly tailored to satisfy either the content-based or content-neutral standard."

All canvassers, whether distributing commercial or noncommercial handbills, contribute to the littering and pedestrian harassment problems. "There is no evidence in the record that only commercial canvassers harass pedestrians," the court wrote. The problem would "occur more frequently when the canvasser was advocating a deep felt, but unpopular, personal, political, or religious belief."

Less restrictive alternatives would be limiting the number of canvassers on a given street corner or establishing a permit system, the court reasoned.

On Jan. 21, 1999, the Ninth Circuit denied the county attorney's petition for en banc review.

This case shows the wisdom of the "inextricably intertwined" argument: that ordinances targeting commercial speech also affect noncommercial speech -- particularly in a jurisprudence that relegates commercial speech to a "subordinate position in the scale of First Amendment values."

Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983)