"If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error."
-- John Stuart Mill, 1859
The concept of free speech and press as embodied in the First Amendment is a sham and a mockery if we are not willing to extend it to speech we, or our government representatives, despise.
But few are those who can resist the seductive power of censorship.
It is in this vein that a panel of the 9th U.S. Circuit Court of Appeals earlier this month recognized a "substantial state interest in preventing the commodification and commercialization of sex," justifying a Nevada law prohibiting the advertising of legal brothels in counties in which prostitution is illegal.
The opinion by Judge Marsha Berzon overturns Nevada federal Judge James Mahan, who had ruled the statute an unconstitutional infringement on the First Amendment.
Berzon's rambling opinion includes a history lesson on prostitution, noting how laws have evolved from widespread tolerance to near-universal prohibition.
"In every state but Nevada," the judge writes, "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. We conclude that the interest in preventing the commodification of sex is substantial."
One man's nuance is another's hypocrisy. If the state's compelling interest is to limit prostitution, it could ban it outright. But instead it chooses, under penalty of $1,000 fines and threats of six months in jail, to prohibit advertising that tells potential customers of legal outlets just across the county line.
The lawsuit was brought by a brothel owner and two publications -- including CityLife, which is owned by the same company that publishes the Review-Journal -- who are represented by the American Civil Liberties Union.
In her ruling, Judge Berzon offers this bit of questionable rationale: "Common sense counsels that advertising tends to stimulate demand for products and services. Conversely, prohibitions on advertising tend to limit demand."
Judge Mahan had an opposite, and far more realistic, take.
"Defendants have posited that advertising of licensed brothels in counties that by statute or county option do not have legal prostitution will promote and increase illegal prostitution in those counties ..." Judge Mahan wrote in a July 2007 ruling. "Defendants' suggestion is, at best, highly speculative. The opposite effect is at least as plausible if not more so. It is more likely that tourists who are unclear about what is legal and what is not will be better able to discern, through truthful advertising, which establishments are lawful."
Which better supports the state interest? Alerting would-be customers to the regulated, licensed, medically supervised and taxed legal establishments where willing adults may exchange money for services rendered? Or through enforced ignorance, leaving them to the wiles of illegal prostitutes, replete with the ancillary malefics of women too often forced or coerced into the act by pimps and panderers, underaged hookers, disease, trick rolls and potential for arrest?
Oddly, one court deems it proper to ban ads for legal brothels, while other courts say those tabloids and business cards for out-call services (Who is so naïve as to think they are merely dancers?) constitute protected free speech.
Ignorance is not a virtue, nor a means to making logical decisions.
In their arguments, both Berzon and Mahan cited the same U.S. Supreme Court case, 44 Liquormart v. Rhode Island. In that case, Justice Clarence Thomas said the courts were asked to "weigh incommensurables -- the value of knowledge versus the value of ignorance -- and to apply contradictory premises -- that informed adults are the best judges of their own interests, and that they are not." That made no sense to him, or me.
Allen Lichtenstein, general counsel for the ACLU of Nevada, said he plans to file an appeal on Thursday seeking an en banc hearing by 11 members of the full 9th Circuit Court. "The 9th Circuit (three-judge) panel rather clearly ignored the U.S. Supreme Court rulings that, if a product or service is legal, then it retains First Amendment protection, and there is no vice exception."
The First Amendment was intended to stop the government from engaging in coercive efforts to shape the minds of free citizens by limiting access to ideas and thoughts to which the powers that be object.
That includes thoughts that take the mind to ethereal heights -- and those that merely titillate.
Thomas Mitchell is editor of the Review-Journal and writes about the role of free speech and press, as well as access to public information. He may be contacted at 383-0261 or via e-mail at firstname.lastname@example.org. Read his blog at lvrj.com/blogs/mitchell.