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Gaming Guru

Sean Whaley

ACLU: Rap Ban Unconstitutional

24 February 2006

CARSON CITY, Nevada – (PRESS RELEASE) -- A representative of the ACLU told the Gaming Commission on Thursday that government agencies and officials are attempting to exert control over the type of entertainment that can be booked into Nevada casinos, an unconstitutional move that could make them liable for lawsuits.

"It really doesn't matter whether there has been an attempt at an outright ban or merely an attempt to influence these properties," said Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada. "We're still talking about action that is taken under the color of the law and is therefore governmental action that is, frankly, censorship."

Lichtenstein said he was referring to the recent discussion in Southern Nevada by law enforcement officials and others about the idea of banning so-called gangsta rap concerts because of concerns about security and the potential for violence.

The commission has great authority to regulate gaming establishments because they have privileged licenses, but that authority does not trump the First Amendment, he said.

"Certainly there is nothing that prohibits the commission or the (Gaming) Control Board from saying to properties, you have to be careful about and responsible for the security of any type of venue," Lichtenstein said. "But it can't go to content."

He referenced a letter written by Clark County Sheriff Bill Young last June about whether the agency could influence the gaming industry to not book gangsta rap acts in Las Vegas.

Lichtenstein made his statement during the public comment portion of the meeting, and asked the commission to post the item on a future agenda for further discussion.

But Gaming Commission Chairman Peter Bernhard said after Lichtenstein's presentation that the issue would not become an agenda item for the panel unless there was a specific issue or complaint it needed to address.

"We really appreciate their input on First Amendment issues," he said. "But at this point, we don't have any item before us, either in the form of a complaint against a licensee or an application that would bring this into play."

And Gaming Control Board Chairman Dennis Neilander disputed Lichtenstein's contention that gaming regulators had in any way singled out a form of music for discrimination by the industry.

The memo issued Feb. 7 by the Gaming Control Board to all nonrestricted casino licensees telling them they are responsible for security and any violations that occur within or outside a nightclub on their property was "content neutral," he said.

"The letter that went out to the industry does not in any way suggest that someone not be able to have a particular act or have a particular act," he said. "It's simply not what we intended to do and I don't believe it's what the letter says."

Neilander said the memo is the result of ongoing discussions with large casinos and law enforcement officials about security concerns. The memo does mention the Young letter and says there have been "numerous incidents of violence before, during and after several 'gangsta rap' concerts, not just in Las Vegas, but nationally as well."

"The Las Vegas Metropolitan Police Department considers these events as serious threats to the community," the gaming memo says.

Neilander said the only purpose of the memo is to ensure that casino operators take the steps necessary to ensure the safety of the public.

"This could be any kind of entertainment," he said. "We've been doing this for boxing for years."

The only exchange during Lichtenstein's presentation was with Bernhard, who asked whether it would be appropriate for gaming regulators to raise concerns with a casino if it learned that a particular event could generate violence.

"Absolutely," Lichtenstein said. "That's perfectly within the realm of what should be done."

Bernard then asked whether it would be appropriate to identify the type of event where violence might occur.

Lichtenstein said such an identification would be appropriate.

But the Gaming Control Board memo and Young's letter go much further, he said.

"To say, 'don't have it', that's censorship," Lichtenstein said. "That's what is being done. That is what is being said by the control board letter and by the sheriff."

Bill Bible, president of the Nevada Resort Association, said he does not believe there is a controversy over the control board memo.

"I think most licensees saw this as a heads-up," he said. "Some types of events may require more security than others.

Bible professed not to know precisely what a gangsta rap group is, but said a higher level of security would likely be appropriate for such a concert than for a symphony concert.