S.O.C., Inc. v. County of Clark
| Decision Date | 14 August 1998 |
| Docket Number | No. 97-15912,97-15912 |
| Parties | 26 Media L. Rep. 2199, 98 Cal. Daily Op. Serv. 6353, 98 Daily Journal D.A.R. 8799 S.O.C., INC.; Richard Soranno; Hillsboro Enterprises, Inc., Plaintiffs-Appellants, and American Civil Liberties Union, Intervenor-Appellant, v. COUNTY OF CLARK; Las Vegas Metro Police Department; Lorraine Hunt; Myrna Williams; Erin Kenney; Bruce Woodbury; Yvonne Atkinson Gates; Lance Malone; Mary Kincaid; Mirage Casino-Hotel, Defendants-Appellees, and Nevada Resort Association; Flamingo Hilton Corporation; The Mirage Casino-Hotel; Circus Circus Enterprises, Inc.; Las Vegas Convention and Visitors Authority, Intervenors-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dominic P. Gentile and JoNell Thomas, Gentile & Thomas, Las Vegas, Nevada, for plaintiff-appellant S.O.C., Inc.
Stephen Stein, Las Vegas, Nevada, for plaintiff-appellant Hillsboro Enterprises.
Allen K. Lichtenstein, Las Vegas, Nevada, for intervenor-appellant ACLU of Nevada.
David N. Frederick, Lionel, Sawyer & Collins, Las Vegas, Nevada, for defendants-appellees-intervenors-appellees.
Joseph S. Kistler, Gordon & Silver, (brief only) Las Vegas, Nevada, for amicus curiae Las Vegas Chamber of Commerce.
Appeal from the United States District Court for the District of Nevada Lloyd D. George, District Judge, Presiding. D.C. No. CV-97-00123-LDG.
Before: GOODWIN and PREGERSON, Circuit Judges, and GONZALEZ, District Judge. *
Appellants S.O.C., Inc. ("S.O.C."), Richard Soranno ("Soranno"), 1 and Hillsboro Enterprises, Inc. ("Hillsboro") regularly hire canvassers to distribute leaflets that advertise erotic dance entertainment services. 2 These leaflets were handed-out to tourists and others walking along Las Vegas Boulevard, the area commonly known as the Las Vegas "Strip." Appellants filed suits challenging the constitutionality of Clark County Ordinance Section 16.12 ("Clark County Ordinance"), which prohibits off-premises canvassing in areas surrounding the Las Vegas "Strip" and the Las Vegas Convention Center (collectively referred to as the "Las Vegas Resort District"). The American Civil Liberties Union of Nevada ("ACLUN") intervened in the suit filed by S.O.C. Inc. and raised a facial overbreadth challenge to the Clark County Ordinance. This case comes to us as an appeal from a denial of preliminary injunctive relief and denial of a motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
We conclude that the ACLUN has demonstrated probable success on the merits on its claim that Clark County Ordinance Section 16.12 is overbroad because it is likely to restrict not only purely commercial speech, but also fully protected noncommercial speech inextricably intertwined with commercial speech. The Ordinance, as written, is content-based. On the record before us, we also find that Clark County has not met its burden of showing that the Ordinance is the least restrictive means to further a compelling governmental interest. Further, even assuming that the Ordinance's restrictions are content-neutral, the available record indicates that the Ordinance is not narrowly tailored to further Clark County's interests in improving the pedestrian environment, maintaining accessible sidewalks, preventing harassment of pedestrians, and reducing litter in the Las Vegas Resort District. At this early stage in the litigation, the time, place, and manner restrictions imposed by the Clark County Ordinance on fully protected speech conducted in a public forum-the sidewalks of Las Vegas-have not been shown to be reasonable. Therefore, we find that the ACLUN has demonstrated probable success on the merits of its claim that Clark County Ordinance Section 16.12 is overbroad and thus unconstitutional on its face. The ACLUN has also demonstrated the possibility of irreparable harm if Clark County Ordinance Section 16.12 is not preliminarily enjoined. Accordingly, we reverse and remand.
S.O.C. and Hillsboro are corporations that provide referrals for erotic dance entertainment. Before the Clark County Ordinance was enacted, S.O.C. and Hillsboro regularly hired canvassers to distribute handbills, leaflets, and newspapers advertising erotic dance entertainment services to tourists and others walking along the Las Vegas Strip.
On January 21, 1997, following a public hearing, the Clark County Commission adopted Ordinance Section 16.12, which makes it a misdemeanor to engage in "off-premises canvassing" 3 within the Las Vegas Resort District. The Ordinance also permits "owners of private property abutting any On January 31, 1997, S.O.C. and Soranno filed suit in the United States District Court for the District of Nevada to enjoin enforcement of the Clark County Ordinance. S.O.C. and Soranno assert that the Ordinance's prohibition of "off-premises canvassing" in the public streets and sidewalks within the Las Vegas Resort District violates the First and Fourteenth Amendments. Clark County and the Las Vegas Metropolitan Police Department are named defendants. The Nevada Resort Association, Flamingo Hilton, Mirage Casino-Hotel, and Circus Circus Enterprises intervened as defendants (collectively referred to as "Casino Intervenors").
public sidewalk located within the resort district" to enforce the provisions of the Ordinance "by an injunction and by any remedy available at law or equity." C.C.C. § 16.12.060. Clark County's stated aims in passing the Ordinance are: (1) to improve the pedestrian environment; (2) to maintain accessible sidewalks; (3) to prevent harassment of pedestrians; and (4) to reduce litter. See C.C.C. § 16.12.010. The Clark County Ordinance exempts the distribution of leaflets placed in authorized newsracks
On February 3, 1997, Hillsboro filed a separate suit also seeking to enjoin enforcement of the Clark County Ordinance. Hillsboro named Clark County and several Clark County Commissioners as defendants. On February 4, 1997, the Las Vegas Convention and Visitors Authority moved to intervene as a defendant in the S.O.C./Soranno suit. On February 13, 1997, the ACLUN moved to intervene as a plaintiff in the S.O.C./Soranno action. That same day, February 13, 1997, the district court conducted a hearing on both preliminary injunction motions. On March 4, 1997, the court entered a single order (with both docket numbers and both case captions). The March 4, 1997 Order granted the motions for intervention and denied both preliminary injunction motions.
On March 14, 1997, S.O.C. and Soranno filed a notice appealing the March 4, 1997 order denying their motion for preliminary injunction. Neither Hillsboro nor the ACLUN joined in this motion. On March 17, 1997, Hillsboro filed a motion for reconsideration under Rules 52(b), 59(e), and 60(b) of the Federal Rules of Civil Procedure. The ACLUN joined in this motion. The district court denied the motion for reconsideration on May 9, 1997. On May 14, 1997, S.O.C., Hillsboro, and the ACLUN filed a timely notice appealing: (1) the district court's May 9, 1997 Order denying the motion for reconsideration; and (2) the underlying March 4, 1997 Order denying the motions for preliminary injunction.
ANALYSIS
The district court's jurisdiction over the underlying litigation is based on 28 U.S.C. § 1331, federal question jurisdiction. There is no dispute that Hillsboro and the ACLUN filed timely appeals from the May 9, 1997 Order denying the motion for reconsideration. Accordingly, we have jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court's May 9, 1997 order denying the motion for reconsideration and the underlying March 4, 1997 Order denying a preliminary injunction. 4 Clark County and the Casino Intervenors, however, contend that S.O.C. and Soranno failed to file a timely notice of appeal. Because Hillsboro and the ACLUN raise the same issues as S.O.C. and Soranno, we need not resolve the question of
whether S.O.C. and Soranno's joint notice of appeal was timely filed.
To succeed on this appeal from the district court's denial of preliminary injunctive relief, Appellants "must show either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) the existence of serious questions going to the merits and the balance of hardships tipping in their favor." Gilder v. PGA Tour, Inc., 936 F.2d 417, 422 (9th Cir.1991). We review a district court's decision to deny a motion for a preliminary injunction for an abuse of discretion. See San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233 (9th Cir.1997), reh'g and suggestion for reh'g and reh'g en banc denied, 137 F.3d 1090 (1998). But we review the legal issues underlying the district court's decision de novo. See Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1249, 137 L.Ed.2d 330 (1997).
In denying preliminary injunctive relief and the motion for reconsideration, the district court concluded that Clark County Ordinance Section 16.12 imposed permissible restrictions on purely commercial speech. Commercial and noncommercial speech are protected under the First Amendment. See Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 633 n. 7, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). The Constitution, however, accords less protection to commercial speech than to other constitutionally safeguarded forms of expression. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). On appeal, Appellants and the ACLUN contend that the district court erred in reviewing the constitutionality of Clark County Ordinance Section 16.12 as a commercial speech regulation. 5 Specifically, Appellants and the ACLUN contend that the Clark County Ordinance is facially...
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