Legal Commentary

Nevada has partially legalized prostitution, but it has stringent restrictions on brothel advertising.  Specifically, brothels cannot advertise at all in those Nevada counties that make their activities illegal by local ordinance or state statute, and in the counties where the brothels are legal, they cannot engage in "public" advertising, that is, advertising in "any public theater, on the public streets of any city or town, or on any public highway."  Nev. Rev. Stat. Sec. 201.440 and 201.430(1). 

A Ninth Circuit panel (Berzon, Noonan, Smith) recently rebuffed a First Amendment challenge to the brothel advertising restrictions in Coyote Publishing Inc. v. Miller, 38 Med. L.  Rptr.  1385 (9th Cir. 2010).  In doing so, the court relied on a novel "commodification" theory to find that the advertising restrictions satisfied Central Hudson's intermediate scrutiny.

In Coyote Publishing, two newspapers brought a facial challenge to Nevada's restrictions on brothel advertising.  A district court struck down the advertising restrictions, but the Ninth Circuit reversed.  The court accepted the argument that "the sale of sexual services . . . ought to be treated differently than other advertising bans on 'vice' activity" such as gambling, or consumption of tobacco or alcohol.  As opposed to these other forms of vice, prostitution is completely banned in 49 states, and the degree of "condemnation may be relevant to the degree of scrutiny applicable to these advertising restrictions."  Moreover, "sex is not a commodity," and thus the normal concerns expressed in commercial speech decisions over "the risk of distortion of competitive markets" are simply not applicable.  In addition, restrictions on prostitution advertising are not motivated by protecting consumers from their irrational choices but by preventing the "commodification of human sexuality on a society-wide basis."  The Ninth Circuit therefore found that "two of the core justifications for protecting commercial speech--facilitating efficient market exchange and shunning paternalism--apply with less force in th[e] context" of brothel advertising.

The Ninth Circuit nevertheless applied Central Hudson's intermediate scrutiny as "an adequate basis" for its decision to uphold Nevada's advertising restrictions.  The Court held that Nevada's "interest in preventing the commodification of sex is substantial," explaining that this conclusion was based on "two distinctive characteristics of prostitution."  The first is that "prohibitions on prostitution reflect not a desire to discourage the underlying sexual activity itself but its sale."  In other words, sex is fine unless you pay or get paid for it.  The second is that "public disapproval of prostitution's commodifying tendencies has an impressive historical pedigree."  The court conceded that Nevada had struck an "idiosyncratic balance" between "limiting commodification of sex" and subjecting "the market for paid sex to extensive regulation," but believed that the fact the state had partially legalized prostitution did not make its interest in preventing commodification any less substantial.

The court also held that the advertising restrictions directly and materially advanced Nevada's interest in limiting sexual commodification.  First, the court stated, the public would not be exposed "to advertisements that are in themselves an aspect of the commodifying of sex."  Second, the "market demand for,  and thus the incidence of, the exchange of sex acts for money," would decrease.  

Finally, the court concluded that the advertising restrictions were no more extensive than necessary to limit sexual commodification. With regard to advertising in counties where prostitution is illegal, the court found that "[e]very advertisement for prostitution that is not seen contributes to limiting the commodification of sex, both directly and by reducing demand."  The court conceded that the "fit" analysis was more difficult to apply in assesing the ban on "public" advertising in counties where prostitution was legal.  Nonetheless, the court concluded that Nevada was only striking a reasonable balance "between its interest in maintaining economically viable (!!!), legal, regulated brothels and its interest in severely limiting [as opposed to preventing] the commodification of sex."    

Let me say for the record that I am sympathetic to what the Ninth Circuit was trying to do, namely, to allow Nevada to continue with its experiment with legalized prostitution without allowing the experiment (and its secondary effects) to spill over into other locales.  Essentially, however,  the court's novel theory of "limiting commodification of sex" as a substantial state interest allows Nevada to have its cake and eat it, too.  Nevada can permit a degree of commodification of sex but then prohibit speech about it to limit its scope, all in service of its "idiosyncratic" compromise.  This theory is troubling.  Nevada has made a decision that sex CAN be bought and sold, but then it seeks to limit demand for the "commodity" of paid sex by limiting speech about it.  Except for the Supreme Court's largely disavowed Posadas decision, the Supreme Court has been skeptical of state regulations on advertising aimed solely at reducing demand for legal products or services.  As the Court said in 44 Liquormart v. Rhode Island,  ?[t]he First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.?   Admittedly, the Nevada advertising restrictions at issue are different from the ones at issue in previous cases:  the Nevada restrictions seek to protect the SELLERS rather than the buyers of the service from misapprehending their own interests.  But the question still remains:  If the state isn't willing to ban the commodification of sex, why should it be allowed to ban its citizens from receiving information about a lawful commodity?  The Ninth Circuit seemed to assume that banning speech about brothels was a lesser evil than banning brothels.  It was wrong.