First Amendment battle over brothel advertising — Round 3

The First Amendment battle over brothel advertising ain't over yet.

Allen Lichtenstein, general counsel for the ACLU of Nevada, says an appeal of the ruling reinstating the ban on cathouse teasers will be filed by the March 25 deadline. He plans to ask for an "en banc" hearing by 11 members of the 9th U.S. Circuit Court of Appeals. A three-judge panel of the appellate court on March 11 reversed Nevada federal Judge James Mahan's 2007 ruling that declared the state's prohibition on advertising of legal brothels in counties where they are not legal is an unconstitutional infringement on the First Amendment.

The San Francisco-based panel bought into the Nevada attorney general's argument that the state's "substantial state interest in preventing the commodification and commercialization of sex vindicates the advertising restrictions."

But Lichtenstein, right, said the panel clearly ignored U.S. Supreme Court rulings that have said there is First Amendment protection for legal products and services.

For example, the court noted in a case, 44 Liquormart, that overturned a Rhode Island ban on liquor price advertising:

"Advertising has been a part of our culture throughout our history. Even in colonial days, the public relied on 'commercial speech' for vital information about the market. Early newspapers displayed advertisements for goods and services on their front pages, and town criers called out prices in public squares. ... Indeed, commercial messages played such a central role in public life prior to the Founding that Benjamin Franklin authored his early defense of a free press in support of his decision to print, of all things, an advertisement for voyages to Barbados."

And in Virginia State Board of Pharmacy:

"The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment."

Or try on this passage talking about the Virginia attempt to quelch pharmacy ads:

"There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that information is not in itself harmful, that people will perceive their own best interests, if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. ... It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us. ... Virginia is free to require whatever professional standards it wishes of its pharmacists; it may subsidize them or protect them from competition in other ways. But it may not do so by keeping the public in ignorance of the entirely lawful terms that competing pharmacists are offering. In this sense, the justifications Virginia has offered for suppressing the flow of prescription drug price information, far from persuading us that the flow is not protected by the First Amendment, have reinforced our view that it is."

After the appeals court ruling, Attorney General Catherine Cortez Masto, left, issued a statement: "I am glad to see common sense has prevailed. 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."

Antiquity does not give cachet.

Read more on this topic in Sunday's column.