The 9th U.S. Circuit Court of Appeals today upheld a ban on brothel advertising in Nevada counties where prostitution is illegal, overturning a lower court judge’s ruling. An appeal is expected.
(Full disclosure: Las Vegas CityLife, and me as its editor, are named plaintiffs in the case, Coyote Publishing Inc. et. al. v. Ross Miller, et. al.)
The case was filed in 2006, after the Shady Lady Ranch brothel in Nye County sought to advertise in CityLife and other newspapers, but ran up against a ban in state law. While brothels may advertise in the 11 Nevada counties where prostitution is currently legal, they aren’t allowed to run ads for their services in counties where prostitution is illegal, including Clark County. CityLife and the other plaintiffs, represented by the ACLU of Nevada, sued, alleging the ban was a violation of the First Amendment.
U.S. District Court Judge James Mahan in July 2007 struck down the anti-advertising statutes, calling them “overly broad” and thus unconstitutional restrictions of free speech under the First Amendment.
But in a 34-page ruling issued today, a three-judge panel of the Ninth Circuit led by Judge Marsha Berzon ruled that the state’s laws are constitutional, inasmuch as they are tailored to advance Nevada’s interest in prevention of the commodification of sexual activity. Quoting from the ruling:
Banning commodification of sex entirely is a substantial policy goal that all states but Nevada have chosen to adopt. Uniquely among the states, Nevada has not structured its laws to pursue this substantial state interest to the exclusion of all others. Rather, it has adopted a nuanced approach to the sale of sexual services, grounded in part in concern about the negative health and safety impacts of unregulated, illegal prostitution. By permitting some legal prostitution, Nevada has been able to subject a portion of the market for paid sex to extensive regulation, while continuing severely to limit the diffusion of sexual commodification through its banning of prostitution where by far most Nevadans live (and where most outsiders visit), Clark County. (emphasis in original)
Moreover, Berzon adds:
Increased advertising of commercial sex throughout the state of Nevada would increase the extent to which sex is presented to the public as a commodity for sale. The advertising restrictions advance the interest in limiting this commodification in two closely related ways. First, they eliminate the public’s exposure — in some areas entirely, and in others in large part — to advertisements that are in themselves an aspect of the commodification of sex. As the harm protected against occurs in part from the proposal of the transaction, banning or restricting the advertising directly reduces the harm.
Second, the advertising restrictions directly and materially advance Nevada’s interests in limiting commodification by reducing the market demand for, and thus the incidence of, the exchange of sex acts for money, which, by definition, is the commodifying of sex. Nevada might be able to reduce the buying and selling of sex acts to a greater degree by instituting a complete ban on prostitution…. But it has chosen to take an approach to reducing demand that will not short-circuit the health and safety gains that come with partial legalization.” (emphasis in original)
Attorney General Catherine Cortez Masto praised the ruling in a statement released by her office:
“I am glad to see common sense has prevailed,” said Attorney General Masto. “This state has had restrictions on brothel advertising for 40 years. Nevada should have the right to have reasonable limitations on this type of activity. I am pleased the 9th Circuit Court of Appeals corrected the decision by the lower federal court to overturn those long standing restrictions as violating the First Amendment.”
The laws had been challenged by the American Civil Liberties Union, together with the Shady Lady Ranch, a brothel in Nye County, and two newspapers, the High Desert Advocate and Las Vegas City Life. The federal district court in Reno had upheld the challenge and invalidated the laws that prohibit brothel advertising in counties where prostitution is illegal. The laws also prohibit brothel advertising in theaters and on streets and public highways.
“We are pleased that our State’s policies were acknowledged and our laws were upheld,” Masto said. “Free speech is perhaps our most cherished right. But prostitution is a difficult issue in every state. The Circuit’s decision proves there are different ways to deal with the issue without trampling on First Amendment rights.”
But Allen Lichtenstein, general counsel of the ACLU of Nevada, disagreed. He said the U.S. Supreme Court has clearly ruled if a product or service is legal, then advertising about that product or service is First Amendment-protected commercial speech. “Does somebody’s objection to the commodification of sex trump the First Amendment? We believe it does not,” he said. “The social harm of alcohol, cigarettes and gambling is well-documented; no documented social harm of legal brothels exists.”
Lichtenstein added: “The empirical evidence of making into law somebody’s moral judgment is unfortunate.” He said the case will be appealed, either to the full Ninth Circuit or directly to the U.S. Supreme Court.
Now, for my own legal analysis: The state’s legal position is fundamentally flawed. First, the issue of whether sex should be commodified is essentially a moral, not a legal, question. As such, it properly lies with the Legislature when it comes to sex policy. Now, as the court itself noted (see above), the legalization of prostitution is by definition the commodification of sex. Nevada has, therefore, made a policy decision t0 define sex as something that can be bought and sold. Yet, the state now argues there’s a harm that results from the commodification of sex, a harm that is exacerbated by the advertisement of a service that is perfectly legal, at least in those 11 rural counties? If so, the state has the option to simply outlaw prostitution, and thus cure the harm.
But because the state has failed to do so, despite numerous opportunities, it has implicitly and explicitly endorsed the commodification of sex, and should not now be heard to complain about it simply because brothel owners have decided to exercise their First Amendment rights to advertise a perfectly legal product.
Oh, and P.S.: If the commodification of sex is a harm to be prevented, the attorney general has a much larger problem to deal with than ads in the back of CityLife. It’s called “Las Vegas” and pretty much every ad ever run in the history of the town from 1931 to the present day. Good luck with that!