ACLU appeals federal court decision upholding Nevada’s brothel ad ban

By Cy Ryan

Thursday, March 25, 2010 | 5:56 p.m.

The owner of a Nye County brothel says her legal business is being punished by a state ban on advertising "while the illegal trade goes hog wild in Las Vegas."

Bobbi A. Davis, who operates the Shady Lady Ranch, blames Attorney General Catherine Cortez Masto for backing a ban on prostitution advertising that she says "promotes trafficking in women."

The American Civil Liberties Union, on behalf of Davis and two newspapers, today asked the full U.S. Ninth Circuit Court of Appeals to rehear the case and overturn a decision by a three-judge panel of the court upholding the state's ban on prostitution ads.

ACLU lawyer Allen Lichtenstein wrote in his petition: "Because brothels are licensed in Nevada, commercial speech concerning them is constitutionally protected." Judges may find legal prostitution "personally distasteful, immoral or even socially harmful as public policy," but "neither the panel's own moral judgment, nor the social condemnation of prostitution by other states, can appropriately serve to justify a ban on truthful, lawful speech."

A panel of three judges of the court ruled March 11 that the state ban does not violate the First Amendment Right of free speech. "Nevada has tailored its restrictions on advertising to attain a reasonable fit between ends and means," wrote Judge Marsha Berzon in the decision.

Davis said the ban on advertisement killed her effort to promote a male prostitute at her business. She said he got 10-15 female customers but that wasn't enough to make it a going concern.

She said the ban damages the legal business, while illegal prostitution flourishes through advertising in Las Vegas.

The appeals court decision acknowledged that, saying "We are, of course, aware of the existence of a vast illegal market in sexual acts in Nevada and elsewhere," but this case is not concerned with that issue.

Lichtenstein filed suit in March 2006 in behalf of Davis, Las Vegas CityLife and the high Desert Advocate on grounds it was a violation of free speech.

U.S. District Judge James Mahan voided the state ban on advertising by legal brothels on grounds the state did not offer any compelling interest in support of the policy. But the panel of U.S Court of Appeals for the Ninth Circuit upheld the state law.

Houses of prostitution are allowed in 11 counties but prohibited in Las Vegas and Reno. The state law bans advertising in all counties. In counties where prostitution is legal, brothels cannot advertise in any public theater, or the public streets of any city or town or on any public highway.

Lichtenstein said both the federal government and state could ban the legal brothels but they have not chosen to. The Constitution, he said, does not allow the state to "ban truthful, non-misleading commercial speech concerning its experiment with legal brothels."