Appeals court reinstates limits on brothel ads

A federal appeals court reinstated Nevada's restrictions on brothel advertising Thursday in an opinion that overturns the 2007 ruling of a Las Vegas judge.

The 9th U.S. Circuit Court of Appeals reversed the ruling of U.S. District Judge James Mahan, who concluded that Nevada laws limiting brothel advertising violated the First Amendment.

"I am glad to see common sense has prevailed," Nevada Attorney General Catherine Cortez Masto said in a statement. "This state has had restrictions on brothel advertising for 40 years. Nevada should have the right to have reasonable limitations on this type of activity."

The appeals court, which is based in San Francisco, agreed with Nevada's argument that its "substantial state interest in preventing the commodification and commercialization of sex vindicates the advertising restrictions."

"Increased advertising of commercial sex throughout the state of Nevada would increase the extent to which sex is presented to the public as a commodity for sale," the court reasoned.

Allen Lichtenstein, an attorney with the American Civil Liberties Union of Nevada, vowed to appeal the decision.

"In this decision, the Court of Appeals created new law that runs contrary to established Supreme Court precedent," Lichtenstein said. "The Supreme Court has established that if a product or service is legal, even if the government has the right to ban it but chooses not to, then the advertising of that legal product or service is constitutionally protected."

Judge Marsha Berzon wrote the opinion for the three-judge panel that issued the ruling. Lichtenstein did not say whether he would seek a rehearing from an 11-member panel of the court or appeal the decision directly to the U.S. Supreme Court.

In July 2007, Mahan struck down two state laws that prohibit bordellos from advertising in counties, such as Clark and Washoe, where prostitution is illegal. The Nevada Legislature enacted the laws banning such ads in 1979.

Lichtenstein filed a lawsuit in 2006 that challenged the two 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.

Davis and her husband, Jim, have owned the Shady Lady Ranch north of Beatty for about 17 years. Since Mahan's ruling, they have advertised regularly in CityLife.

"It was their desire to advertise that gave rise to this case," CityLife editor Steve Sebelius said.

Sebelius said the appeals court's decision disappointed and surprised him.

If the state were truly concerned about the commodification of sex, he said, it could outlaw prostitution entirely.

"Given the fact that it is a commodity, I think it's inappropriate for the state to restrict First Amendment-protected advertising about that commodity," he said.

However, according to the court's opinion, "the fact that banning the underlying activity outright would also promote the interest advanced by restricting advertising does not by itself render a commercial speech regulation unconstitutional."

Brothel industry lobbyist George Flint said the decision troubled him but will make little difference to owners of the state's 24 legal brothels.

"Nobody's doing any aggressive advertising, which is what I'd hoped would happen," he said. "The other thing is that the economy's so bad right now that most of my brothels don't have any money to spend on advertising."

Carl Tobias, a law professor at the University of Richmond in Virginia, said he doubts the nation's highest court will choose to consider the issue.

"I just don't think it's really that important," said Tobias, a former law professor at the University of Nevada, Las Vegas. "It's really restricted to Nevada."