This story from (and involving) CityLife is extremely interesting and meets the “only in Nevada” standard I have come to love about our state.
The sum-up: The 9th U.S. Circuit Court of Appeals just upheld a ban on brothel advertising in Nevada counties where prostitution is illegal (appeal expected). The case was originally filed in 2006, after the Shady Lady Ranch brothel in Nye County tried to advertise in CityLife and other newspapers but ran into a snag in state law.
Brothels are permitted to advertise in the 11 Nevada counties where prostitution is legal, but they can’t do so in counties where prostitution is not allowed — including Clark County. CityLife and others, represented by the ACLU of Nevada, sued, alleging the ban was a First Amendment violation.
In July 2007, the U.S. District Court struck down the anti-advertising statutes, calling them “overly broad.” But in a 34-page ruling issued this week, the Ninth Circuit ruled that the state’s laws are constitutional, in part because they support Nevada’s interest in the prevention of the commodification of sexual activity. 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.
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)
AG Catherine Cortez Masto praised the ruling, but Allen Lichtenstein, general counsel of the ACLU of Nevada, disagrees.
From the CityLife piece:
[Lichtenstein] 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.
It will be interesting to see how the appeal goes. It’s possible the state’s legal position has problems. As Sebelius pointed out in his post, “the legalization of prostitution is by definition the commodification of sex” so Nevada has already made a policy decision t0 define sex as something that can be bought and sold. Can the state reasonably (and legally) argue that the harm that results from the commodification of sex is acceptable, but the harm caused by the advertisement of that commodification is not? And, in any case, that the state’s interest trumps the protections of the First Amendment?