9th Circuit: Nevada has right to restrict brothel advertising
Coyote Publishing, Inc. v. Miller, No. 07-16633 (9th Cir. March 11, 2010)
9th Circuit: Nevada’s restrictions on advertising by legal brothels are constitutional.
At issue in this case is whether Nevada’s “restrictions on advertising by legal brothels” violate the First Amendment. Judge Berzon delivered the opinion of the court joined by Judges Smith and Noonan. Judge Noonan delivered a concurring opinion.
The court summarized the Nevada restrictions in question:
First, brothels are banned from advertising at all in counties where the sale of sexual services is prohibited by local ordinance or state statute. Nev. Rev. Stat. § 201.440.3 Second, in counties where the sale of sexual services is permitted, brothels cannot advertise “[i]n any public theater, on the public streets of any city or town, or on any public highway.” The statute further provides that: “Inclusion in any display, handbill or publication of the address, location or telephone number of a house of prostitution or of identification of a means of transportation to such a house, or of directions telling how to obtain any such information, constitutes prima facie evidence of advertising for the purposes of this section.”
Coyote Publishing argued that the restrictions violate the First Amendment of the U.S. Constitution and Article I, Section 9, of the Nevada Constitution. Applying strict scrutiny, the district court held that the regulations reach beyond commercial speech and are unconstitutional. The district court further held that even if the restrictions are limited to commercial speech and intermediate scrutiny is applied pursuant to Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the regulations would still be unconstitutional.
The test in Central Hudson is summarized as follows:
For commercial speech to come within that provision [under First Amendment protection], 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.
Nevada appealed the district court’s ruling and the 9th Circuit reversed. On appeal, Nevada argued:
that (1) intermediate scrutiny (or some lesser level of scrutiny) applies; (2) at least in counties where brothels are prohibited, advertising of brothels does not relate to legal activity and is therefore not protected by the First Amendment; and (3) the substantial state interest in preventing the commodification and commercialization of sex vindicates the advertising restrictions.
Regarding state constitutional provisions, the Court of Appeals noted that analysis under Article I, Section 9 of the Nevada Constitution is identical to First Amendment Analysis under the United States Constitution. Therefore, it analyzed the case under federal precedents.
Commercial speech restrictions are reviewed under intermediate scrutiny. Speech is “commercial” if it does “no more than propose a commercial transaction.” Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762(1976) (citation omitted). The 9th Circuit concluded that the regulations in question were targeted toward commercial speech and after lengthy discussion, it concluded that intermediate scrutiny should apply in accord with the Central Hudson test.
The court then spent some time discussing Nevada’s asserted rationale for the restrictions. Nevada argued that the advertisements commodify sex and that the restrictions “serve to limit prostitution’s profile in society.” Such a rationale, apparently unrepresented in the caselaw, nevertheless can appeal to the 13th Amendment ( which “enshrines the principle that people may not be bought and sold as commodities”), the unenforceability of surrogacy contracts, prohibitions on payment for adoption, prohibitions on the sale of human organs, the illegality of prostitution in every other state–all “these public policies,” Judge Berzon wrote, “may be motivated in part by concerns about the indirect consequences of permitting such sales, but they are also driven by an objection to their inherent commodifying tendencies–to the buying and selling of things and activities integral to a robust conception of personhood.”
Accepting and amplifying this rationale, the Court of Appeals concluded that the state’s interest in restricting prostitution is substantial and the regulations survive the remaining parts of the four part test set forth in Central Hudson.