Press Release: “Nevada Attorney General Masto Announces Ninth Circuit Court Decision Limiting Brothel Advertising”

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United States Court of Appeals for the Ninth Circuit (07-16633): Coyote Publishing v. Miller (PDF, 148KB, 3/11/10)
…The State of Nevada, alone among the states, [permits] the sale of sexual services in some of its counties.1 Nevada combines partial legalization of prostitution with stringent licensing and regulation, including health screenings for sex workers, measures to protect sex workers from coercion, and — the aspect of Nevada law here challenged — restrictions on advertising by legal brothels. We must decide whether the advertising restrictions violate the First Amendment…

The state’s regulatory regime also restricts advertising by legal brothels. The principal restrictions are two: 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.” Nev. Rev. Stat. § 201.430(1)…4

On summary judgment, the district court declared the advertising restrictions unconstitutional. The court first held that in light of section 201.430(3), which defines prima facie evidence of advertising, the restrictions reach beyond pure commercial speech. The district court therefore applied strict scrutiny and determined that the state did not offer any compelling interest in support of its policy. The district court then concluded, alternatively, that even severing 201.430(3) from the rest of the statute, the restrictions still failed the standard of intermediate scrutiny applicable to commercial speech announced in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

Nevada appeals, arguing 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. 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 and so reverse the ruling of the district court…

…we are not persuaded that section 201.430 burdens any significant quantum of fully protected, noncommercial speech. Importantly, section 201.430(1) prohibits only brothel owners or persons “acting on behalf of” a brothel owner from advertising. (Emphasis added.) Thus, on a plain reading of the statute, the publisher of a news account would not be liable…

…we have no difficulty concluding that Nevada’s advertising restrictions target pure commercial speech. Strict scrutiny, therefore, does not apply.10

Nevada argues, conversely, that something less than the intermediate scrutiny of Central Hudson is applicable. Pointing to Posadas, which upheld Puerto Rico’s restrictions on casino gambling advertising directed at its residents, 478 U.S. at 344, the state urges that legislatures have greater power to regulate the advertising of so-called “vice” activities, which derives from their power to prohibit the underlying activity all together. “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.

Posadas certainly provides support for this proposition: “In our view,” the Supreme Court held, “the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling.” 478 U.S. at 345-46. Indeed, underscoring the applicability of this logic to the present case, Posadas endorsed the presumptive validity of the very Nevada statutes at issue here: Posadas cited Nevada Revised Statute §§ 201.430 & 201.440 and noted that “[i]t would . . . surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising by those who would profit from such increased demand.” 478 U.S. at 346.

Subsequent decisions, however, have cast severe doubt on the rule that restrictions on advertising of vice activity may escape the intermediate scrutiny of Central Hudson simply by virtue of the fact that they target vice…

Nevada also argues for an exception specific to prostitution. We agree that there are strong reasons why the sale of sexual services, in particular, ought to be treated differently than other advertising bans on “vice” activities.

The first derives from the degree of disfavor in which prostitution is held in our society, as reflected in law. In this respect, prostitution is sui generis. Forty-nine of the fifty states today prohibit all sales of sexual services. The federal government acknowledges the link between prostitution and trafficking in women and children, a form of modern day slavery. See U.S. Department of State, The Link Between Prostitution and Sex Trafficking (November 24, 2004). And federal law prohibits the transportation of persons in interstate or foreign commerce for the purpose of prostitution or other illegal sexual activity. White Slave Traffic Act, 36 Stat. 825, 18 U.S.C. § 2421-2124 (1910). Although Nevada has opted for partial legalization, Nevada too has taken significant steps to limit prostitution, including the total ban on the practice in by far the largest population center,11 the permission to other counties to ban the practice, and the advertising restrictions here at issue.

The social condemnation of prostitution, therefore, is vastly more widespread — and vastly more consistent — than in the case of other categories of “vice” that courts have considered, such as alcohol, tobacco products, and gambling. This condemnation may be relevant to the degree of scrutiny applicable to these advertising restrictions…

(“The commercial speech doctrine is . . . based in part on certain empirical assumptions as to the benefits of advertising.”). When the underlying service is of extremely little value, as demonstrated by near consensus within our society, the need for its efficient allocation and distribution is less compelling…

…the bedrock idea that “[t]here are, in a civilized society, some things that money cannot buy” is deeply rooted in our nation’s law and public policy…

In every state but Nevada, that boundary has been drawn so as to forbid such transactions entirely, including the proposing of such transactions through advertising. Nevada has, uniquely for this country, delineated a more nuanced boundary, but still seeks to closely confine the sale of sex acts, geographically, through restrictive licensing where legal, and through the advertising restrictions.16 We conclude that the interest in preventing the commodification of sex is substantial…

…prohibitions on prostitution reflect not a desire to discourage the underlying sexual
activity itself but its sale. Prostitution without the exchange of money is simply sex, which in most manifestations is not a target of state regulators… Speech that “does no more than propose a commercial transaction,” see Virginia Bd. of Pharmacy, 425 U.S. at 762, is particularly susceptible to regulation when the state’s objection is to the commercial transaction itself…

…public disapproval of prostitution’s commodifying tendencies has an impressive historical pedigree. In the minds of early opponents, prostitution was closely bound up with slavery — the paradigmatic case of a dehumanizing market transaction…

The legal condemnation of prostitution as such did not arrive until after the Civil War, when a coalition of prominent abolitionists and feminists defeated attempts to license houses of prostitution in several states… William Lloyd Garrison lent his name to anti-licensing efforts…which often explicitly invoked slavery and the evils of commodification…

The anti-commodification orientation of the early opponents of legalized prostitution was reflected in the nature of the criminal prohibitions adopted early in the twentieth century. Criminal laws were not directed at women themselves but at those profiting from “commercialized forms of vice…”

Central Hudson specifies that if the regulated speech concerns illegal activity or is misleading, the First Amendment extends no protection and the analysis ends…

Nevada contends that the advertising at issue is unprotected, at least in those counties where prostitution is prohibited, because prostitution is not legal activity in those counties…

An advertisement that proposes the sale of a sexual act does not merely create a risk that a consumer of that message will travel in pursuit of such a transaction. Instead, an advertisement for sex itself creates the commodification harm that Nevada seeks to limit. The regulating jurisdiction thus has a different and greater interest, vis-a-vis the jurisdiction where the transaction is proposed, in the context of prostitution than in other commercial speech contexts…

…the Nevada advertising restrictions are valid — because narrowly tailored to advance the interest in limiting commodification of sex — even if we assume that the speech in question is accorded commercial speech protection, rather than ousted from any protection under the illegal transaction exception…

Increased advertising of commercial sex throughout the state of Nevada would increase the extent to which sex is presented to the public as a commodity for sale. The advertising restrictions advance the interest in limiting this commodification in two closely related ways. First, they eliminate the public’s exposure — in some areas entirely, and in others in large part — to advertisements that are in themselves an aspect of the commodifying of sex. As the harm protected against occurs in part from the proposal of the transaction, banning or restricting the advertising directly reduces the harm.

Second, the advertising restrictions directly and materially advance Nevada’s interest in limiting commodification by reducing the market demand for, and thus the incidence of, the exchange of sex acts for money, which by definition is commodifying of sex…

Coyote Publishing suggests that Nevada’s interest in limiting commodification is not materially advanced by the ban on brothel advertising in the counties where they are not legal because sexually suggestive material is already widely displayed in Nevada. The argument misses the point. Nevada seeks to limit the message that sex may be bought and sold. It does not object to sex per se, or to messages that utilize sexual innuendo to sell other products. The persistence of those other elements in Nevada society does not defeat Nevada’s interest…

In permitting some unobtrusive, non-public forms of advertising in counties where brothels are legal, Nevada has achieved “a fit that is not necessarily perfect, but reasonable.” Greater New Orleans Broad., 527 U.S. at 188. By keeping brothel advertising out of public places, see Nev. Rev. Stat. § 201.430(1)(a), where it would reach residents who do not seek it out, but permitting other forms of advertising likely to reach those already interested in patronizing the brothels, Nevada strikes a balance between its interest in maintaining economically viable, legal, regulated brothels and its interest in severely limiting the commodification of sex…

Nevada has tailored its restrictions on advertising to attain a reasonable fit between ends and means.

Orlando Weekly Drops Adult-Services Ads in Wake of Police Sting; “Operation Weekly Shame”
…Orlando Weekly Inc., which had been accused of aiding prostitution through its advertising, made the deal with prosecutors, who dropped 18 charges against the company, including a count of racketeering…

Orlando Sentinel: “3 from Orlando Weekly’s staff charged with aiding prostitution” (10/20/07)
MBI Director Bill Lutz said the unusual arrests had nothing to do with the newspaper’s freedom of speech.

“I don’t see a First Amendment issue here,” Lutz said. “This is strictly an advertising company making money off of prostitution.”

Orlando Sentinel: “Weekly’s publisher: Arrests are payback” (10/23/07)
“First Amendment rights do not protect anyone from committing a crime,” he said.

Pasadena Weekly: “Lives for sale”
“Publications have a choice about whether to run certain ads,” said Suriyopaf. “If they have any reason to believe that businesses are conducting illicit activities, they have a social responsibility to report it to the authorities or, at the very least, not run the business’ advertisements.”


MSNBC Investigates Human Trafficking and Prostitution in the US; Valley Advocate Advertises “Foreign Fantasies” Where “Everything Goes”

Letter to Gazette: “Urges Valley Advocate to stop running escort ads”(11/7/09)
The Gazette writes of past suffering in its Oct. 26 editorial, “Slavery’s unfinished story,” but you can find present-day exploitation in the Gazette’s sister publication – the Valley Advocate – and its massage/escort advertising section. Many of these ads appear to involve prostitution…

As reported by the Chicago Tribune in April 2008, a comprehensive 2004 mortality study, conducted by the American Journal of Epidemiology, shows that workplace homicide rates for women working in prostitution are 51 times that of the next most dangerous occupation for women (which is working in a liquor store) and the average age of death of the women studied was 34.

In one study, 75 percent of women in escort prostitution had attempted suicide and prostituted women comprised 15 percent of all completed suicides reported by hospitals…

Ask the Valley Advocate’s New Owner to Drop the Sex Ads

Gazette: “Hadley prostitution was linked to sprawling criminal enterprise” (2/10/10)
Now if only the Gazette would train its scrutiny on its sister publication down the hall.

“New York Press No Longer Marketing Arm for Prostitution/Trafficking”

Another Victory for NOW-NYC: New York Magazine Drops Sex Ads

Belltown Messenger: “Greed, Lust and Ink”
…the only motivation for running escort ads in the first place is unbridled greed-and these supposedly liberal publications can’t have it both ways when defending the rights of society’s underdogs in their editorial content.

New Book – Prostitution and Trafficking in Nevada: Making the Connections
There is only one place in the US where brothels are legal, and that’s Nevada… There are at least 20 legal brothels in business now…

The brothel prostitutes often live in prison-like conditions, locked in or forbidden to leave…

The rooms all have panic buttons, but many women told her that they had experienced violent and sexual abuse from the customers and pimps…

…[a] pimp told Farley matter-of-factly that many of the women working for him had histories of sexual abuse and mental ill-health. “Most,” he said, “have been sexually abused as kids. Some are bipolar, some are schizophrenic.”

…The women are expected to live in the brothels and to work 12- to 14-hour shifts…

Farley found that the brothel owners typically pocket half of the women’s earnings. Additionally, the women must pay tips and other fees to the staff of the brothel… One former Nevada brothel worker wrote on a website: “After your airline tickets, clothing, full-price drinks and other miscellaneous fees you leave with little. To top it off, you are … fined for just about everything. Fall asleep on your 14-hour shift and get $100 [£50] fine…

More than 80% of those interviewed told Farley they wanted to leave prostitution…

Meanwhile, illegal brothels are on the increase in Nevada, as they are in other parts of the world where brothels are legalised. Nevada’s illegal prostitution industry is already nine times greater than the state’s legal brothels. “Legalising this industry does not result in the closing down of illegal sex establishments,” says Farley, “it merely gives them further permission to exist.”


Sweden’s Prostitution Solution: Why Hasn’t Anyone Tried This Before?
In the fog of clichés despairing that “prostitution will always be with us”, one country’s success stands out as a beacon lighting the way. In just five years Sweden has dramatically reduced the number of women in prostitution. In the capital city of Stockholm, the number of women in street prostitution has been reduced by two thirds, and the number of “johns” has been reduced by 80%. There are other major Swedish cities where street prostitution has all but disappeared. Gone too, for the most part, are the infamous Swedish brothels and massage parlors which proliferated during the last three decades of the twentieth century, when prostitution in Sweden was legal.

In addition, the number of foreign women now being trafficked into Sweden for sex work is almost nil. The Swedish government estimates that in the last few years only 200 to 400 women and girls have been annually sex trafficked into Sweden, a figure that’s negligible compared to the 15,000 to 17,000 females yearly sex trafficked into neighboring Finland. No other country, nor any other social experiment, has come anywhere near Sweden’s promising results…

In 1999, after years of research and study, Sweden passed legislation that a) criminalizes the buying of sex, and b) decriminalizes the selling of sex…

The Guardian, “Ending a trade in misery”
Not only have the Swedes decriminalised the selling of sex; the Swedish government has also made significant resources available to help women leave prostitution. Beside this radical legislation is a public education campaign to debunk the myths and lies about prostitution – for example, that it is a career choice, and an equal exchange between buyer and seller…

The Guardian, “Eradicate the oldest profession”
But why should we take away the livelihoods of women in prostitution? I hear this time and again from those who hand out condoms and clean needles to women on the street and put little effort into helping them escape. Many women support the Swedish law, because it has given them an incentive to ask for support to get out of the sex industry. If the UK, like Sweden, provided readily available drug and alcohol rehabilitation, safe housing and protection from pimps then most women would leave prostitution…

Those hoping to see the government support decriminalisation of brothels will be disappointed by the Home Office review, as will those advocating tolerance zones. Where such zones have been tried they have failed. One zone in Melbourne resulted in street prosti
tution increasing fourfold. In Amsterdam drug dealing, trafficking and violence towards the women and customers in the zone led to it being closed in 2003…