American Civil Liberties Union of Nevada lawyers have formally asked a federal appeals court to reconsider its recent ruling on brothel advertising.
In a petition filed Thursday with the 9th U.S. Circuit Court of Appeals in San Francisco, the lawyers argue that the case "involves a question of exceptional importance" and ask for a rehearing "en banc." If granted, an 11-member panel of the court would review the case; the original opinion was issued March 11 by a three-judge panel.
"Frankly, if we don't get an 'en banc' review, our next step would be to attempt to go to the U.S. Supreme Court, because the panel's ruling clearly contradicts well-established Supreme Court jurisprudence protecting commercial speech," said Allen Lichtenstein, general counsel and interim executive director of the ACLU of Nevada.
The appeals court overturned the 2007 ruling of U.S. District Judge James Mahan, who concluded that Nevada laws limiting brothel advertising violate the First Amendment. The laws prohibit brothels from advertising in counties, such as Clark and Washoe, where prostitution is illegal.
Lichtenstein filed a lawsuit in 2006 that challenged the laws. His clients include brothel owner Bobbi Davis, the weekly Las Vegas CityLife newspaper and the weekly High Desert Advocate newspaper in West Wendover. CityLife is owned by Stephens Media, owner of the Review-Journal.
Edie Cartwright, spokeswoman for the Nevada attorney general's office, stated in an e-mail Friday that the ACLU lawyers "are entitled to petition for rehearing."
"However we believe the common sense ruling upholding our state law will stand," she wrote.
In their petition, ACLU lawyers specifically argue that the decision in the brothel advertising case conflicts with the Supreme Court's 1996 decision in 44 Liquormart Inc. v. Rhode Island. In that case, the high court ruled that a law banning the advertisement of alcohol at places where it is not sold violated the First Amendment.
ACLU lawyers argue that the panel's ruling in the brothel advertising case "puts into question the principle set forth in 44 Liquormart."
"The panel opinion, while paying lip service to this critical precedent, reached a holding completely inconsistent with 44 Liquormart, and created a unique vice exception that is not only contrary to Supreme Court precedent, but also threatens to eviscerate constitutional protections for lawful but controversial commercial speech," the attorneys wrote.
In its opinion, the panel agreed with Nevada's argument that its "substantial state interest in preventing the commodification and commercialization of sex vindicates the advertising restrictions."
ACLU lawyers argue that the ban on "truthful, non-misleading advertising of licensed brothels is likely to lead tourists unwittingly to illegal prostitution -- a result that clearly serves no legitimate state interest."
Contact reporter Carri Geer Thevenot at email@example.com or 702-384-8710.