Nevada Brothels Aren't Shielded by 1st Amendment, 9th Circuit Rules

SAN FRANCISCO — A federal appeals court ruled Thursday that Nevada's legal brothels aren't backed by 1st Amendment protections when it comes to advertising because prostitution is a vice and that the state has the right to limit it.

The publishers of two newspapers that circulate in areas of Nevada where prostitution is prohibited and the owner of a legal brothel in Nye County brought a challenge to a Nevada statute, alleging that the advertising restrictions violate the 1st Amendment.

The U.S. District Court in Las Vegas 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.

But Nevada appealed, and the 9th U.S. Circuit Court of Appeals reversed the lower-court ruling based on the state's position that it is largely interested in regulating "the commodification of sex, both directly and by reducing demand."

"Nevada’s substantial interest in limiting the commodification of sex is directly and materially advanced by the restrictions on brothel advertising," 9th Circuit judges said in their 3-0 ruling. "Nevada has tailored its restrictions on advertising to attain a reasonable fit between ends and means.

“Vice is treated differently, the state contends, and because prostitution is particularly disfavored, the state’s power to completely ban the activity includes the ability to ban its promotion, maintains the state."

The case is Coyote Publishing vs. Nevada, No. 07-16633.