Prostitution Advertising in Nevada and Commodification of Sex
Since Rhode Island amended its law and closed its indoor prostitution loophole in November 2009 (See RegState.net discussion), Nevada is the only state that legally accommodates prostitution. Nevada's legalized prostitution regime relies on licensing and regulation, including health screenings for sex workers and restrictions on advertising by legal brothels.
In Coyote Publishing v. Miller (2010), newspaper publishers challenged the restrictions on advertising arguing that they violated the First Amendment.
The sale of sexual services in Nevada is prohibited unless conducted in designated brothels licensed by a county. State law prohibits counties of more than 400,000 residents from issuing such licenses, 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.
Eleven counties in Nevada chose to license brothels. State law establishes a strict regulatory regime governing these brothels. Sex workers are subject to mandatory health screening for sexually transmitted diseases, including HIV, and brothel owners are liable for damages resulting from exposure to HIV, Condom use is mandatory, and all brothels must so notify customers. This is the law of the State of Nevada.
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. 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).
In Coyote Publishing v. Miller (2010), the Ninth Circuit examined the restrictions on advertising prostitution in Nevada. Specifically, the Court addressed the question of whether the state should limit the commodification of sex and "to treat sex as something, like babies and organs, that is 'market-inalienable,' or instead should treat it as equivalent to the sale of physical labor."
The Court, therefore, concluded that:
"In every state but Nevada, that boundary has been drawn so as to forbid [sex for money] 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."
The Court further emphasized two characteristics of prostitution:
— I thank my friend and colleague Dave Marcus for bringing this case to my attention.
In Coyote Publishing v. Miller (2010), newspaper publishers challenged the restrictions on advertising arguing that they violated the First Amendment.
The sale of sexual services in Nevada is prohibited unless conducted in designated brothels licensed by a county. State law prohibits counties of more than 400,000 residents from issuing such licenses, 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.
Eleven counties in Nevada chose to license brothels. State law establishes a strict regulatory regime governing these brothels. Sex workers are subject to mandatory health screening for sexually transmitted diseases, including HIV, and brothel owners are liable for damages resulting from exposure to HIV, Condom use is mandatory, and all brothels must so notify customers. This is the law of the State of Nevada.
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. 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).
In Coyote Publishing v. Miller (2010), the Ninth Circuit examined the restrictions on advertising prostitution in Nevada. Specifically, the Court addressed the question of whether the state should limit the commodification of sex and "to treat sex as something, like babies and organs, that is 'market-inalienable,' or instead should treat it as equivalent to the sale of physical labor."
The Court, therefore, concluded that:
"In every state but Nevada, that boundary has been drawn so as to forbid [sex for money] 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."
The Court further emphasized two characteristics of prostitution:
- Prohibitions on prostitution do no reflect a desire to discourage the underlying sexual activity itself but its sale. Prostitution without the exchange of money is simply sex, which in most manifestations is not a target of state regulators.
- Public disapproval of prostitution’s commodifying tendencies has an impressive historical pedigree.
— I thank my friend and colleague Dave Marcus for bringing this case to my attention.
Posted by Barak Orbach at Sunday, March 14. 2010 
Categories: Imperfect Information, Morality, Suppression of Information, Preference Shaping, Paternalism, Licensing
Tags: Advertising Soft Paternalism Market Inalienability Prostitution
Categories: Imperfect Information, Morality, Suppression of Information, Preference Shaping, Paternalism, Licensing
Tags: Advertising Soft Paternalism Market Inalienability Prostitution
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