(CN) – Legal brothels in Nevada cannot publicly advertise under the protection of the First Amendment because prostitution is a “vice” with unique social and legal characteristics that must be regulated by the state, the 9th Circuit ruled.
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.
Judge Marsha Berzon wrote that a strong reason for agreeing with the state’s position “derives from the degree of disfavor in which prostitution is held in our society.
“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.”