Brothel ad ban tossed out

When Nevadans legalized prostitution for the smaller counties, decades ago, the consensus was that the ancient trade would be tolerated so long as it kept a low profile — no one wanted the kids asking what services the nekkid women on the billboards were offering. Such ads in “illegal” jurisdictions were, obviously, judged even more objectionable.

That restriction is codified in Nevada Revised Statutes 201.430 and 201.440, which make it illegal “knowingly to prepare or print an advertisement concerning a house of prostitution … in any county, city or town where prostitution is prohibited.”

But times have changed. While prostitution remains technically illegal in Clark County, most visitors (and residents) would find it a challenge to navigate 21st century Las Vegas without spotting numerous “unseemly” advertisements for all manner of establishments whose main attraction appears to be women (and occasionally men) in various states of sweaty undress, with a clear implication of more to come. And that’s before we even get to the “outcall dancers.”

Which leaves the question of whether this hopelessly dated geographic ban violates constitutional protections for commercial speech.

Of course it does. Nevada casinos advertise — and should remain free to advertise — in many a jurisdiction where full-fledged casino gambling remains proscribed. Why is this tolerated? Because everyone understands the activity advertised will be legal if and when those prospective customers arrive here to enjoy it.

The federal case on point is the 1996 ruling in 44 Liquormart v. Rhode Island, in which the U.S. Supreme Court properly held a Rhode Island law against advertising liquor prices (apparently intended to prevent Ocean State teetotalers from growing so excited at the prospect of bargain booze that they would race to jump off the wagon) violated the First Amendment right of a nearby Massachusetts liquor store to place advertisements that informed Rhode Island consumers of their competitive prices.

Comes now Bobbi Davis, proprietor of the Shady Lady Ranch, a legal brothel near Scotty’s Junction in Nye County, 130 miles northwest of Las Vegas.

Ms. Davis wishes to advertise her business in the pages of the High Desert Advocate, a newspaper based in West Wendover that circulates in parts of Northern Nevada where prostitution is legal, as well as in areas where it is not legal.

She also wishes to advertise in Las Vegas CityLife, a weekly tabloid owned by Stephens Media, parent company of the Review-Journal.

And — in a lawsuit filed in Nevada federal court in March 2006 — the publishers and editors of the newspapers assert they wish to accept and publish those ads.

In response, U.S. District Judge James Mahan of Las Vegas struck down the two 1979 laws Thursday, declaring them “overly broad” and thus unconstitutional.

Senior Deputy Attorney General Edward Reed had argued in a Thursday hearing that children still needed to be “protected” from prostitution — though it’s highly unlikely proprietors in this state-regulated industry will be placing “help wanted” ads targeting minor children.

ACLU attorney Allen Lichtenstein, who brought the lawsuit on behalf of Ms. Davis and the newspapers, responded that other Nevada laws still bar the public display of material deemed harmful to children. (Will someone please advise Metro to have a chat with those porn-peddlers on the Strip?)

Mr. Lichtenstein and Judge Mahan both argued that allowing legal brothels to advertise in Clark County — thus differentiating themselves from businesses here that either intend to break the law or else falsely imply they offer prostitution services — will help educate visitors who arrive with the misunderstanding that bordellos are legal in Clark County.

Deputy Attorney General Reed argued that the ads may trigger an interest in prostitution among those who have never previously dreamed of such things.

Yes, lawyers are trained to defend any position they’re assigned. But please.

“The government certainly is entitled to appeal if they want to,” comments Gary Peck, executive director of the American Civil Liberties Union of Nevada, “but I would hope that the people in charge would have the good sense not to waste their time and the taxpayers’ money trying to defend the indefensible. They ought to instead spend their time and energy trying to craft regulations that are reasonable and constitutional.”

Mr. Peck’s enthusiasm for state regulation may itself be overbroad. No industry has any incentive to gratuitously offend the public or its own potential customers. Why not wait to see if any excesses surface that truly require “regulating”?

Many forms of advertising once either outlawed or barred by consensus as “tasteless” ended up providing useful information once those barriers were breached. Advertising for feminine hygiene products is one example often cited, as are advertisements for various forms of birth control — information illegal to mail even to married Connecticut couples as recently as 1962.

Most Nevadans are not children and do not deserve to be treated as children. Judge Mahan has done the right thing not only under the U.S. and Nevada constitutions, but also in the service of adulthood and common sense.