Ninth Circuit denies 1st Amendment protections to brothel advertisements

By J. DeVoy

Last week, the Ninth Circuit ruled in Coyote Publishing Inc. v. Nevada that Nevada’s restrictions on brothel advertising are lawful, holding that the state has an interest in regulating commoditized sex.  This decision overturned the U.S. District Court of Nevada’s decision, which held that such regulations were unconstitutionally overreached pure commercial speech, and that the state had no compelling interest to support the regulations.

The opinion, available here, found that Nevada’s regulations addressed only pure commercial speech.  Consequently, the court applied the intermediate scrutiny test enunciated in Central Hudson Gas & Electric Corporation v. Public Service Commission, which provides:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. 

Applying this standard, the court found that Nevada’s regulation related to the commodification of sex, and that the prohibition of advertisements served to fulfill that goal while keeping the act of prostitution legal.  Indeed, the advertising of prostitution is illegal in only those counties where prostitution itself is illegal, which the court found to be sufficiently restrained in fulfilling the state’s interest.  The Ninth Circuit further found that Nevada’s restrictions on advertising limited the demand for commercial sex, thus curtailing its commoditization.  In light of Coyote Publishing’s facial attack on Nevada’s statute, and its reasonable fit in advancing its stated goals, the appeals court had little choice within precedent but to uphold the law.

Arguably, the county-by-county prohibition of advertising is overbroad in its application.  However, precedent does not require the statute to embrace only the barest means in effecting its ends to be constitutional — it needs only to be reasonable in doing so.

6 Responses to Ninth Circuit denies 1st Amendment protections to brothel advertisements

  1. DMG says:

    Remember when there restrictions on attorney advertising?

    I can’t help it if that’s the first thing I thought of when I red this. :D

    • DMG says:

      Read, even

    • J DeVoy says:

      I’ve seen lawyers’ ads on billboards and phonebooks for as long as I can recall. Everyone I speak to who has been in practice since the late 1970s makes it out like people in my age group missed some kind of golden age.

    • Halcyon 1L says:

      Well I follow your reasoning: in both cases–lawyers and prostitutes–the client is screwed.

  2. smurfy says:

    The cabs in Reno drive around with roof-top signs advertising the World Famous Mustang Ranch Museum*.

    Every now and then my wife will be looking for something to do with the little one and suggests a museum. My suggestion never gets much traction.

    *That may not be the exact name, can’t look it up cause I’m watching my back.

  3. [...] There are also considerable restrictions on brothel advertising. NRS 201.430-40 place significant burdens on the advertising of prostitution and houses of prostitution, which may have a broader reach than the legislature may have ever initially intended.  Despite the First Amendment concerns such restrictions raise, the Ninth Circuit upheld these statutory provisions as constitutional  within the past year. [...]

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