Coyote Publishing v. Ross Miller: 9th Circuit Upholds Restrictions on Ads for Prostitution

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The opinion is available here. The ads at issue were characterized as “pure commercial speech.” Below are two excerpts in which the court explains the ways that legalized prostitution drives the demand for sex slaves and sex trafficking:

The federal government acknowledges the link between prostitution and trafficking in women and children, a form of modern day slavery. See U.S. Department of State, The Link Between Prostitution and Sex Trafficking (November 24, 2004). And federal law prohibits the transportation of persons in interstate or foreign commerce for the purpose of prostitution or other illegal sexual activity. White Slave Traffic Act, 36 Stat. 825, 18 U.S.C. § 2421-2124 (1910). Although Nevada has opted for partial legalization, Nevada too has taken significant steps to limit prostitution, including the total ban on the practice in by far the largest population center, the permission to other counties to ban the practice, and the advertising restrictions here at issue. [page 4123].

And

We emphasize that our holding is grounded in two distinctive characteristics of prostitution, each of which is critical to our conclusion: First, prohibitions on prostitution reflect not 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. But cf. Lawrence v. Texas, 539 U.S. 558 (2003). The risk that states will cite the risk of commodification as a fig leaf for hostility to the underlying”product,”so to speak : which might be present if an anti-commodification rationale were advanced to justify bans on other types of advertising : is minimal here. More fundamentally, this genuine objection to buying and selling means that in the context of prostitution an advertisement is an integral aspect of the harm to be avoided. In contract terms, an advertisement is an invitation to deal and may operate as an offer, though in the typical case it does not bind the seller. See Joseph M. Perillo, I CORBIN ON 16Nevada’s approach of partial legalization and strict regulation does find analogues in several foreign jurisdictions. See, e.g., Prostitution Reform Act 2003, 2003 S.N.Z. No. 28 (N.Z.); Prostitution Act, 1992 (Austl.); Mohamed Y. Mattar, Trafficking in Persons, Especially Women and Children, in Countries of the Middle East: The Scope of the Problem and the Appropriate Legislative Responses, 26 FORDHAM INT’L L. J. 721, 735 (2003) citing Law of 6 February 1931, art. 7 (Leb.). Speech that”does no more than propose a commercial transaction,”see Virginia Bd. of Pharmacy, 425 U.S. at 762, is particularly susceptible to regulation when the state’s objection is to the commercial transaction itself.

Second, public disapproval of prostitution’s commodifying tendencies has an impressive historical pedigree. In the minds of early opponents, prostitution was closely bound up with slavery : the paradigmatic case of a dehumanizing market transaction. See Maude E. Miner, The Slavery of Prostitution: A Plea for Emancipation ix (1916) (doctoral thesis at Columbia University) (“[Women Offenders'] demoralization of character has constituted moral enslavement.”); Amy Dru Stanley, FROM BONDAGE TO CONTRACT 219 & 237 (1998) (citing Massachusetts Bureau of Statistics of Labor, Third Annual Report 117 (1872) (lamenting that prostitution implied”the necessity of making merchandise of body and soul”)). The sale of sex was not widely criminalized for much of our nation’s history. Prostitution was instead covered only by prohibitions on vagrancy and”streetwalking”; the bans did not extend to brothels or other indoor locations in which sale of sex occurred. See Howard B. Woolston, PROSTITUTION IN THE UNITED STATES 25 (1920); Ruth Rosen, THE LOST SISTERHOOD 36 (1982). The legal condemnation of prostitution as such did not arrive until after the Civil War, when a coalition of prominent abolitionists and feminists defeated attempts to license houses of prostitution in several states. David J. Pivar, PURITY CRUSADE: SEXUAL MORALITY AND SOCIAL CONTROL, 1868-1900, 52, 55, 67 (1973). William Lloyd Garrison lent his name to anti-licensing efforts, id. at 67, which often explicitly invoked slavery and the evils of commodification, see Stanley, FROM BONDAGE TO CONTRACT at 257-58 (quoting Elizabeth Blackwell, The Purchase of Women: The Great Economic Blunder (1916) (originally published 1886) (“[T]he slaveholding principle that the human body may be an article of merchandise is still applied to women.”)). The anti-commodification orientation of the early opponents of legalized prostitution was reflected in the nature of the criminal prohibitions adopted early in the twentieth century. Criminal laws were not directed at women themselves but at those profiting from”commercialized forms of vice.”See Woolston at 32.”Between 1911 and 1915, . . . practically every state in the Union [passed] laws punishing those guilty of forcing girls and women into prostitution, those guilty of pandering, and those living off the earnings of prostitution.”Id. In 1910, Congress passed the White Slave Traffic Act, underscoring the extent to which policymakers associated prostitution with involuntary servitude and the overriding concern with commercial manifestations of the practice, especially interstate and international trafficking in women. Stat. 825 (1910).

Though attitudes towards the sale of sexual services have continued to change and evolve since the early twentieth century, this history reinforces the conclusion that Nevada’s objection is genuinely to the buying and selling of sex. Banning commodification of sex entirely is a substantial policy goal that all states but Nevada have chosen to adopt. Uniquely among the states, Nevada has not structured its laws to pursue this substantial state interest to the exclusion of all others. Rather, it has adopted a nuanced approach to the sale of sexual services, grounded in part in concern about the negative health and safety impacts of unregulated, illegal prostitution. By permitting some legal prostitution, Nevada has been able to subject a portion of the market for paid sex to extensive regulation, while continuing severely to limit the diffusion of sexual commodification through its banning of prostitution where by far most Nevadans live … [p. 4129 et. seq.]

I particularly appreciate the way that Peggy Radin’s important work influenced the court.

–Ann Bartow

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