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Coyote Publishing, Inc. v. Miller

March 11, 2010

COYOTE PUBLISHING, INC., DBA HIGH DESERT ADVOCATE; HOWARD COPELAN, PUBLISHER OF THE HIGH DESERT ADVOCATE; BOBBI A. DAVIS, DBA THE SHADY LADY RANCH; DR PARTNERS, DBA LAS VEGAS CITYLIFE; STEVE SEBELIUS, EDITOR OF LAS VEGAS CITYLIFE, PLAINTIFFS-APPELLEES,
v.
ROSS MILLER, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE OF THE STATE OF NEVADA; CATHERINE CORTEZ MASTO, IN HER OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEVADA; DAVID ROGER, IN HIS OFFICIAL CAPACITY AS DISTRICT ATTORNEY OF CLARK COUNTY, NEVADA, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding D.C. No. CV-06-00329-JCM/PAL.

The opinion of the court was delivered by: Berzon, Circuit Judge

FOR PUBLICATION

Argued and Submitted February 13, 2009-San Francisco, California.

Before: John T. Noonan, Marsha S. Berzon and N. Randy Smith, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Noonan

OPINION

[A]s long as poverty makes virtue hideous and the spare pocket-money of rich bachelordom makes vice dazzling, [the] daily hand-to-hand fight against prostitution with prayer and persuasion, shelters and scanty alms, will be a losing one.

-George Bernard Shaw, Preface to Mrs. Warren's Profession viii (1902)

The American experience with prostitution over the last hundred years is testament to the sagacity of Mr. Shaw. Even the coercive machinery of the criminal law, not yet arrayed against the sale of sexual services when Shaw penned Mrs. Warren's Profession, has not extinguished the world's oldest profession.

The State of Nevada, alone among the states, accommodates this reality by permitting the sale of sexual services in some of its counties.*fn1 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.

I.

A.

The sale of sexual services in Nevada is prohibited unless conducted in designated brothels licensed by a county. Nev. Rev. Stat. § 201.354(1). State law prohibits counties of more than 400,000 residents from issuing such licenses, Nev. Rev. Stat. § 244.345(8), and counties with fewer than 400,000 residents are free to prohibit the sale of sexual services by local ordinance. The upshot is that licensed brothels do not operate in Clark County, which includes the city of Las Vegas, or in five of the fifteen remaining counties in Nevada.

State law establishes a strict regulatory regime governing brothels in the eleven counties that choose to license them. Sex workers are subject to mandatory health screening for sexually transmitted diseases, including HIV, Nev. Admin. Code §§ 441A.800-802, and brothel owners are liable for damages resulting from exposure to HIV, Nev. Rev. Stat. § 41.1397. Condom use is mandatory, § 441A.805, and all brothels must so notify customers, § 441A.810.

Several statutory provisions are directed to preventing coercion of sex workers by the operators of brothels and others. Section 201.300 makes criminal "pandering," defined to include, among other acts, inducing, persuading, encouraging, inveigling, or enticing a person to engage in the sale of sexual services. Nev. Rev. Stat. § 201.300; see also Nev. Rev. Stat. § 201.360 (prohibiting "placing" a person in a brothel). Detaining a person in a brothel because of debt is also forbidden. Nev. Rev. Stat. § 201.330. Section 201.320 makes it a crime to live from the earnings of a sex worker.*fn2

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.*fn3 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).*fn4

The statutes further provide that:

Inclusion in any display, handbill or publication of the address, location or telephone number of a house of prostitution or of identification of a means of transportation to such a house, or of directions telling how to obtain any such information, constitutes prima facie evidence of advertising for the purposes of this section.

Nev. Rev. Stat. § 201.430(3). Persons in violation of the advertising restrictions are subject to criminal penalties, including fines and imprisonment.

B.

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 (all referred to, collectively, as Coyote Publishing) bring a facial challenge to Nev. Rev. Stat. §§ 201.430-440, alleging that the advertising restrictions violate the First Amendment of the U.S. Constitution and Article I, Section 9, of the Nevada Constitution.*fn5

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.

II.

The threshold question is whether the advertising regulations at issue are subject to strict scrutiny or, as Nevada contends, to some lesser scrutiny.

[1] For much of our history the First Amendment was thought not to apply to advertising. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). More than thirty years ago, however, the Supreme Court determined that commercial speech is within the First Amendment's purview, albeit afforded only "a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). Restrictions on commercial speech are now reviewed under the standard of intermediate scrutiny announced in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-66 (1980).*fn6

[2] Speech is "commercial" if it does "no more than propose a commercial transaction." Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (citation omitted). Coyote Publishing contends that Nev. Rev. Stat. § 201.430(3), which provides that "prima facie evidence" of advertising consists of the publication of the address, location, or telephone number of a brothel, or of directions on how to obtain such information, restricts more than pure commercial speech. They suggest that any publication containing information listed in § 201.430(3) - including, for instance, a hypothetical newspaper article covering the brothel industry - would be covered by the statutes.*fn7

The Nevada courts have not expressly adopted any limiting construction of section 201.430(3) that cabins its reach to only commercial speech.*fn8 Cf. Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340 n.7 (1986) (relying on authoritative statutory constructions that limit the reach of advertising restrictions to purely commercial speech before applying intermediate scrutiny to the speech restrictions). Still, 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 ...


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