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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.

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