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9th Circuit: World's Oldest Profession Must Limit Ads

By Tanya Roth, Esq. on March 17, 2010 | Last updated on March 21, 2019

The folks on the 9th Circuit Court of Appeals must have enjoyed this one, it's not every day you can sink your teeth into a good fight involving both the First Amendment and the World's Oldest Profession. Well, not unless Larry Flynt's in court. MSNBC reports that on Thursday, the Court of Appeals decided that the brothels of Nevada were not permitted to advertise their goods and services outside of the counties in the state where prostitution is legal.

Despite urban legend to the contrary, prostitution is legal only in certain counties in Nevada. Please note that this does not include Clark County, where Las Vegas is located. According to MSNBC, the plaintiffs in this case were the owners of the Shady Lady Ranch, the newspapers The High Desert Advocate and Las Vegas City Life, and the ACLU. The lower court in the case found for Shady and friends, holding the law restricting brothel ads to the counties were prostitution is legal to be overbroad and vague as written. The 9th Circuit Court of Appeals disagreed.

The court found that although prostitution is legal in some areas of Nevada, the state still has an interest in limiting the sale of sex through the use of licensing and restrictions on ads. Advertisements are considered "commercial speech" which receives a lower standard of First Amendment protection than other forms of speech (political, religious), so the state may limit this speech by merely proving that it has a substantial interest to protect by doing so.

"The Nevada laws appropriately limited commercial speech," the 9th Circuit said. "We conclude that the interest in preventing the commodification of sex is substantial." It seems a bit late for that, but the Nevada Attorney General, Catherine Cortez Masto said the state's forty year history of limiting the ads is reasonable and should continue. "The circuit's decision proves there are different ways to deal with the issue without trampling on First Amendment rights," she said.

MSNBC reports ACLU attorney Allen Lichtenstein is considering appellate options. "It's a violation of the First Amendment for the state to restrict advertising by a legal industry, and it's wrong for a court to make exceptions because the state doesn't want to have it advertised that legalized prostitution exists," Lichtenstein said.

Lawyers know that all kinds of entertaining and interesting asides can be found in the footnotes of court decisions. As a final note, here is a fun fact excavated by the 9th Circuit and popped in to footnote 1 (p.3) of the Opinion. It seems that from 1980 until 2009, something known as "indoor prostitution" was legal in the state of Rhode Island. Was this just a mistake or a subtle acknowledgement by the Rhode Island lawmakers that it is just to cold in R.I. for that kind of outside activity? No matter what you might read into the law, it was amended last year to make all kinds of prostitution, indoors and out, illegal in the littlest state. 

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