A federal appeals court ruled that the state of Nevada could regulate brothel ads under the First Amendment owing to the unique social and legal characteristics of prostitution. -db
Courthouse News Service
March 10, 2010
By Elizabeth Banicki
The publishers of two Nevada newspapers that circulate in areas where prostitution is illegal, and the owner of a legal brothel sued Nevada for being too strict in regulating the advertising of prostitution.
The district court ruled that the state’s advertising restrictions were unconstitutional because they reach beyond pure commercial speech. The court concluded that the state failed to offer any compelling interest in support of its policy.
Nevada appealed, and the 9th Circuit reversed the district court’s ruling based on the state’s position that it is largely interested in regulating “the commodification of sex,” according the ruling.
“Taking into account the quite unique characteristics, legal and social, of prostitution, we conclude that Nevada’s regulatory scheme is consistent with the First Amendment,” the three-judge panel ruled.
The newspaper publishers claimed that what they proposed was the advertising of nothing more than information regarding a “commercial transaction,” which is protected by free speech, and that the state’s restrictions single out the advertising of prostitution and place it wrongfully under “strict scrutiny.”
The San Francisco-based appeals panel disagreed and ruled that the state’s regulations might target commercial speech, but that in the case of sex-related activities, legislators have the authority to place greater restrictions because they are generally disfavorable and so should be treated differently.
“Whether the law ought to treat sex as something, like babies and organs, that is ‘market-inalienable,’ or instead should treat it as equivalent to the sale of physical labor, is a question much contested among legal academics and philosophers,” the panel acknowledged.
“Forty-nine of all fifty states today prohibit all sales of sexual services,” she wrote. “The federal government recognizes the link between prostitution and trafficking in women and children, a form of modern day slavery.”
Judge John Noonan concurred, stating that “the United States may constitutionally suppress speech that offers sexual intercourse for sale.”
Copyright 2010 Courthouse News Service
3 Comments
Not an easy one. On the the one hand we want everybody to be equal under the law but in the case of prostitution certain unique anomolies have to be taken into consideration. Maybe the reason why the greater learned have to make the decision. Not sure i agree with “the United States may constitutionally suppress speech that offers sexual intercourse for sale”. Stretching it to say it is a constitutional issue.
I don’t understand how the advertising of legal brothels has to be so strictly regulated in comparison to something as equally or more damaging to society like alcohol or gambling (especially in Nevada).
The court says prostitution is a vice. But it is legal. So the court has made legal, an act which it considers to be a vice. Weird reasoning.
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