AP Photo/Isaac Brekken
Thursday, March 11, 2010 | 12:01 p.m.
CARSON CITY – A federal appeals court has ruled that Nevada has the right to ban certain advertisements of legal brothels, saying it doesn't violate the First Amendment of free speech.
The U.S. Ninth Circuit Court of Appeals, in a 27-page opinion, said “Nevada has tailored its restrictions on advertising to attain a reasonable fit between ends and means.”
The decision overturns the ruling of Federal District Judge James Mahan of Las Vegas who held the state did not have the right to impose the restrictions on advertisements.
The suit challenging the limits on advertisements was brought by the Las Vegas CityLife newspaper in Las Vegas, the High Desert Advocate in Wendover and by Bobbi Davis, who operates the Shady Lady Ranch brothel in Nye County.
George Flint, a spokesman for the Nevada Brothel Owners Association, said he doubted the ruling by the U.S. Ninth Circuit Court of Appeals would have much effect.
Flint said the brothels, since winning a ruling in the district court in Las Vegas, haven't aggressively promoted an advertising campaign. He said the depressed economy has hurt the brothels and they don’t have as much money to advertise.
Brothels have been permitted in some of Nevada’s rural counties, but the state law prohibits these licenses from being issued in Clark and Washoe counties.
The state law prohibits brothels from advertising in any county where the sale of sexual services is prohibited by state law or local ordinance. And in counties that permit houses of prostitution, advertisements can't be shown in any public theater, on the public streets of any city or town or on any public highway.
C. Wayne Howle, solicitor general in the state Attorney General’s Office, said the opinion is “well studied.” He argued the case before the appeals court in February 2009.
Judge Mahan, in his decision, held the advertising restrictions unconstitutional.
Judge Marsha Berzon, in the appeal court’s unanimous decision, said Nevada’s advertising restrictions target pure commercial speech. The state maintained that it has the power to ban houses of prostitution.
The court said Nevada is the only state to permit houses of prostitution and it’s up to the counties to license them.
The court, citing decisions in other courts, said the First Amendment doesn't come into play in giving states the right to oversee commercial products and services the government regulates.
Judge Berzon said Nevada has taken “significant steps to limit prostitution,” including banning it in Clark County.
She said Nevada has chosen not to ban houses of prostitution but imposing regulations to prevent the spread of sexually transmitted disease and protect sex workers from abuse.
Berzon wrote, “By keeping brothel advertising out of public places 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 commoditization of sex.”