Legal Commentary

The First Amendment and Advertisements of Legal Prostitution

By Eugene Volokh

In today?s Coyote Publishing, Inc. v. Miller, the Ninth Circuit upheld Nevada?s restrictions on advertising legal prostitution; the opinion is long and has much interesting material, but here?s the heart of the analysis:

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 commodifying 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 interest 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 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 (although there has been no showing that the actual incidence of acts of prostitution, legal and illegal, in Nevada is greater than it would be under a total ban). 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....

Nevada?s choice to pursue its state interests by regulating advertising rather than the alternative means of banning all prostitution directly is a unique one in this country, but not one without a well-developed policy basis: partial legalization and regulation serves Nevada?s competing, substantial interests in preventing the spread of sexually transmitted disease and protecting sex workers from abuse. Cf. 44 Liquormart, 517 U.S. at 530 (?The ready availability of [alternatives] ? at least some of which would far more effectively achieve Rhode Island?s only professed goal, at comparatively small additional administrative cost ? demonstrates that the fit between ends and means is not narrowly tailored.?) (O?Connor, J., concurring) (emphasis added). The First Amendment does not require that a regulatory regime single-mindedly pursue one objective to the exclusion of all others to survive the intermediate scrutiny applied to commercial speech regulations.

Query: How would courts decide whether it?s constitutional to ban or limit advertising of some newly and reluctantly legalized drugs?

Thanks to How Appealing for the pointer.

Full post as published by The Volokh Conspiracy on March 11, 2010 (boomark / email).