Coyote Publishing, Inc. v. Miller

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

COYOTE PUBLISHING, INC., dba High 
Desert Advocate; HOWARD
COPELAN, Publisher of the High
Desert Advocate; BOBBI A. DAVIS,
dba the Shady Lady Ranch; DR
PARTNERS, dba Las Vegas CityLife;
STEVE SEBELIUS, Editor of Las
Vegas CityLife,
No. 07-16633
Plaintiffs-Appellees,
D.C. No.
v.
 CV-06-00329-
ROSS MILLER, in his official JCM/PAL
capacity as Secretary of State of
OPINION
the State of Nevada; CATHERINE
CORTEZ MASTO, in her official
capacity as Attorney General of
the State of Nevada; DAVID ROGER,
in his official capacity as District
Attorney of Clark County,
Nevada,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted
February 13, 2009—San Francisco, California

Filed March 11, 2010

Before: John T. Noonan, Marsha S. Berzon and
N. Randy Smith, Circuit Judges.

4109
 COYOTE PUBLISHING v. MILLER 4113
Opinion by Judge Berzon;
Concurrence by Judge Noonan

COUNSEL

Allen Lichtenstein, Lee Rowland & Margaret A. McLetchie,
ACLU of Nevada for the plaintiffs-appellees.

C. Wayne Howle, Esquire, Solicitor General of Nevada for
the defendant-appellant.

OPINION

BERZON, Circuit Judge:

[A]s long as poverty makes virtue hideous and the
spare pocket-money of rich bachelordom makes vice
4114 COYOTE PUBLISHING v. MILLER
dazzling, [the] daily hand-to-hand fight against pros-
titution with prayer and persuasion, shelters and
scanty alms, will be a losing one.

—George Bernard Shaw, Preface to Mrs.
Warren’s Profession viii (1902)

The American experience with prostitution over the last
hundred years is testament to the sagacity of Mr. Shaw. Even
the coercive machinery of the criminal law, not yet arrayed
against the sale of sexual services when Shaw penned Mrs.
Warren’s Profession, has not extinguished the world’s oldest
profession.

The State of Nevada, alone among the states, accommo-
dates this reality by permitting the sale of sexual services in
some of its counties.1 Nevada combines partial legalization of
prostitution with stringent licensing and regulation, including
health screenings for sex workers, measures to protect sex
workers from coercion, and — the aspect of Nevada law here
challenged — restrictions on advertising by legal brothels.
We must decide whether the advertising restrictions violate
the First Amendment.
1
From 1980 to 2009, so-called “indoor prostitution” was legal in Rhode
Island. Due to a statutory amendment in 1980, prostitution itself was not
expressly prohibited, although related activities such as “streetwalking”
were. Whether this state of the law was an oversight is not altogether
clear. Nevertheless, in 2009 the law was again amended and Rhode Island
now outlaws prostitution as does every other state except Nevada. See R.I.
Gen. Laws § 11-34.1-2 (2009); see also Lynn Arditi, Bill signing finally
outlaws indoor prostitution in R.I., Projo 7 to 7 News Blog, available at
http://newsblog.projo.com/2009/11/governor-carcieri-signed-into.html
(last visited March 2, 2010).
 COYOTE PUBLISHING v. MILLER 4115
I.

A.

The sale of sexual services in Nevada is prohibited unless
conducted in designated brothels licensed by a county. Nev.
Rev. Stat. § 201.354(1). State law prohibits counties of more
than 400,000 residents from issuing such licenses, Nev. Rev.
Stat. § 244.345(8), and counties with fewer than 400,000 resi-
dents 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, or in
five of the fifteen remaining counties in Nevada.

State law establishes a strict regulatory regime governing
brothels in the eleven counties that choose to license them.
Sex workers are subject to mandatory health screening for
sexually transmitted diseases, including HIV, Nev. Admin.
Code §§ 441A.800-802, and brothel owners are liable for
damages resulting from exposure to HIV, Nev. Rev. Stat.
§ 41.1397. Condom use is mandatory, § 441A.805, and all
brothels must so notify customers, § 441A.810.

Several statutory provisions are directed to preventing coer-
cion of sex workers by the operators of brothels and others.
Section 201.300 makes criminal “pandering,” defined to
include, among other acts, inducing, persuading, encouraging,
inveigling, or enticing a person to engage in the sale of sexual
services. Nev. Rev. Stat. § 201.300; see also Nev. Rev. Stat.
§ 201.360 (prohibiting “placing” a person in a brothel).
Detaining a person in a brothel because of debt is also forbid-
den. Nev. Rev. Stat. § 201.330. Section 201.320 makes it a
crime to live from the earnings of a sex worker.2
2
Enforcement of these laws to protect sex workers appears to be lack-
ing. Alexa Albert’s study of one prominent brothel reports that pimps
remained common and some assaults against sex workers still occurred,
yet the authorities were rarely notified of these criminal violations. See
Alexa Albert, BROTHEL: MUSTANG RANCH AND ITS WOMEN 71-73, 153-54,
194 (2001).
4116 COYOTE PUBLISHING v. MILLER
The state’s regulatory regime also restricts advertising by
legal brothels. The principal restrictions are two: First, broth-
els are banned from advertising at all in counties where the
sale of sexual services is prohibited by local ordinance or state
statute. Nev. Rev. Stat. § 201.440.3 Second, in counties where
the sale of sexual services is permitted, brothels cannot adver-
tise “[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).4
3
Nev. Rev. Stat. § 201.440(1) provides:
In any county, city or town where prostitution is prohibited by
local ordinance or where the licensing of a house of prostitution
is prohibited by state statute, it is unlawful for any person, com-
pany, association or corporation knowingly to allow any person
engaged in conduct which is unlawful pursuant to paragraph (b)
of subsection 1 of NRS 207.030, or any owner, operator, agent
or employee of a house of prostitution, or anyone acting on
behalf of any such person, to advertise a house of prostitution in
his place of business.
4
Nev. Rev. Stat. § 201.430 provides:
Unlawful advertising of prostitution; penalties
1. It is unlawful for any person engaged in conduct which is
unlawful pursuant to paragraph (b) of subsection 1 of NRS
207.030 [prohibiting prostitution solicited on the street], or any
owner, operator, agent or employee of a house of prostitution, or
anyone acting on behalf of any such person, to advertise the
unlawful conduct or any house of prostitution:
(a) In any public theater, on the public streets of any city or
town, or on any public highway; or
(b) In any county, city or town where prostitution is prohib-
ited by local ordinance or where the licensing of a house of
prostitution is prohibited by state statute.
2. It is unlawful for any person knowingly to prepare or print
an advertisement concerning a house of prostitution not licensed
for that purpose pursuant to NRS 244.345, or conduct which is
unlawful pursuant to paragraph (b) of subsection 1 of NRS
207.030, in any county, city or town where prostitution is prohib-
ited by local ordinance or where the licensing of a house of pros-
titution is prohibited by state statute.
 COYOTE PUBLISHING v. MILLER 4117
The statutes further provide that:

Inclusion in any display, handbill or publication of
the address, location or telephone number of a house
of prostitution or of identification of a means of
transportation to such a house, or of directions tell-
ing how to obtain any such information, constitutes
prima facie evidence of advertising for the purposes
of this section.

Nev. Rev. Stat. § 201.430(3). Persons in violation of the
advertising restrictions are subject to criminal penalties,
including fines and imprisonment.

B.

The publishers of two newspapers that circulate in areas of
Nevada where prostitution is prohibited and the owner of a
legal brothel in Nye County (all referred to, collectively, as
Coyote Publishing) bring a facial challenge to Nev. Rev. Stat.
§§ 201.430-440, alleging that the advertising restrictions vio-
late the First Amendment of the U.S. Constitution and Article
I, Section 9, of the Nevada Constitution.5

3. Inclusion in any display, handbill or publication of the
address, location or telephone number of a house of prostitution
or of identification of a means of transportation to such a house,
or of directions telling how to obtain any such information, con-
stitutes prima facie evidence of advertising for the purposes of
this section.
***
5
Article I, Section 9 of the Nevada Constitution provides, in relevant
part: “Every citizen may freely speak, write and publish his sentiments on
all subjects being responsible for the abuse of that right; and no law shall
be passed to restrain or abridge the liberty of speech or of the press.”
Because “Article I, Section 9 affords no greater protection to speech
activity than does the First Amendment to the United States Constitu-
4118 COYOTE PUBLISHING v. MILLER
On summary judgment, the district court declared the
advertising restrictions unconstitutional. The court first held
that in light of section 201.430(3), which defines prima facie
evidence of advertising, the restrictions reach beyond pure
commercial speech. The district court therefore applied strict
scrutiny and determined that the state did not offer any com-
pelling interest in support of its policy. The district court then
concluded, alternatively, that even severing 201.430(3) from
the rest of the statute, the restrictions still failed the standard
of intermediate scrutiny applicable to commercial speech
announced in Central Hudson Gas & Electric Corp. v. Public
Service Commission, 447 U.S. 557 (1980).

Nevada appeals, arguing that (1) intermediate scrutiny (or
some lesser level of scrutiny) applies; (2) at least in counties
where brothels are prohibited, advertising of brothels does not
relate to legal activity and is therefore not protected by the
First Amendment; and (3) the substantial state interest in pre-
venting the commodification and commercialization of sex
vindicates the advertising restrictions. Taking into account the
quite unique characteristics, legal and social, of prostitution,
we conclude that Nevada’s regulatory scheme is consistent
with the First Amendment and so reverse the ruling of the dis-
trict court.

II.

The threshold question is whether the advertising regula-
tions at issue are subject to strict scrutiny or, as Nevada con-
tends, to some lesser scrutiny.

tion[,] . . . under the Nevada Constitution, the appropriate analysis of . . .
restrictions [on speech] is identical to that under the First Amendment.”
Univ. & Cmty. Coll. Sys. of Nev. v. Nevadans for Sound Gov’t, 100 P.3d
179, 187 (Nev. 2004) (citations omitted). We therefore address the issues
in this appeal under federal constitutional standards.
 COYOTE PUBLISHING v. MILLER 4119
[1] For much of our history the First Amendment was
thought not to apply to advertising. See, e.g., Valentine v.
Chrestensen, 316 U.S. 52, 54 (1942). More than thirty years
ago, however, the Supreme Court determined that commercial
speech is within the First Amendment’s purview, albeit
afforded only “a limited measure of protection, commensurate
with its subordinate position in the scale of First Amendment
values.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456
(1978). Restrictions on commercial speech are now reviewed
under the standard of intermediate scrutiny announced in Cen-
tral Hudson Gas & Electric Corp. v. Public Service Commis-
sion, 447 U.S. 557, 563-66 (1980).6

[2] Speech is “commercial” if it does “no more than pro-
pose a commercial transaction.” Va. State Bd. of Pharmacy v.
Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762
(1976) (citation omitted). Coyote Publishing contends that
Nev. Rev. Stat. § 201.430(3), which provides that “prima
facie evidence” of advertising consists of the publication of
the address, location, or telephone number of a brothel, or of
directions on how to obtain such information, restricts more
than pure commercial speech. They suggest that any publica-
tion containing information listed in § 201.430(3) — includ-
ing, for instance, a hypothetical newspaper article covering
the brothel industry — would be covered by the statutes.7

The Nevada courts have not expressly adopted any limiting
construction of section 201.430(3) that cabins its reach to only
commercial speech.8 Cf. Posadas de Puerto Rico Assocs. v.
6
Several justices criticized Central Hudson in subsequent cases, and the
Court as a whole has acknowledged that criticism. See Thompson v. W.
States Med. Ctr., 535 U.S. 357, 367-68 (2002). Nevertheless, Central
Hudson remains the governing precedent. See Metro Lights, L.L.C. v. City
of Los Angeles, 551 F.3d 898, 903-04 (9th Cir. 2009).
7
We note that such articles are not merely hypothetical. See, e.g., Steve
Friess, Brothels Asked To Be Taxed, but Official Sees a Catch, N.Y. TIMES,
Jan. 26, 2009, at A11 (featuring a picture of a brothel that reveals its web
address and phone number).
8
Princess Sea Industries, Inc. v. State, 635 P.2d 281 (Nev. 1981) sug-
gests such a limitation but does not make it explicit. In that case, the
4120 COYOTE PUBLISHING v. MILLER
Tourism Co. of Puerto Rico, 478 U.S. 328, 340 n.7 (1986)
(relying on authoritative statutory constructions that limit the
reach of advertising restrictions to purely commercial speech
before applying intermediate scrutiny to the speech restric-
tions). Still, we are not persuaded that section 201.430 bur-
dens any significant quantum of fully protected, non-
commercial speech. Importantly, section 201.430(1) prohibits
only brothel owners or persons “acting on behalf of” a brothel
owner from advertising. (Emphasis added.) Thus, on a plain
reading of the statute, the publisher of a news account would
not be liable.

Moreover, under Nevada law, where a statutory provision
makes certain facts “prima facie evidence” of other facts and
the presumed facts establish guilt or an element of a criminal
offense, a judge may only submit the presumption to the jury
if “a reasonable juror on the evidence as a whole, including
the evidence of the basic facts, could find guilt or the pre-
sumed fact beyond a reasonable doubt.” Nev. Rev. Stat.
§ 47.230(2). In other words, only where the evidence, viewed
as a whole, would permit a reasonable juror to conclude that
the material was “advertising” would the prima facie provi-
sion have effect.9

[3] For these reasons and in the context of the present
facial challenge, we have no difficulty concluding that

Nevada Supreme Court upheld the statutes at issue here against a First
Amendment challenge, treating Bigelow v. Virginia, 421 U.S. 809 (1975),
and other commercial speech precedents as controlling. See Princess Sea,
635 P.2d at 283. A concurring Justice “perceive[d] the advertisement as
proposing no more than simply a commercial transaction, markedly differ-
ent from advertising which contains factual material of clear ‘public inter-
est.’ ” Id. at 287 (Manoukian, J., concurring) (citing Bigelow, 421 U.S. at
822).
9
Plainly, therefore, the regulations may not be applied to newspaper
articles — or, for that matter, postings on internet message boards — by
individuals acting independently of the brothels.
 COYOTE PUBLISHING v. MILLER 4121
Nevada’s advertising restrictions target pure commercial
speech. Strict scrutiny, therefore, does not apply.10

Nevada argues, conversely, that something less than the
intermediate scrutiny of Central Hudson is applicable. Point-
ing to Posadas, which upheld Puerto Rico’s restrictions on
casino gambling advertising directed at its residents, 478 U.S.
at 344, the state urges that legislatures have greater power to
regulate the advertising of so-called “vice” activities, which
derives from their power to prohibit the underlying activity all
together. “Vice is treated differently,” the state contends, and
because prostitution is particularly disfavored, the state’s
power to completely ban the activity includes the ability to
ban its promotion, maintains the state.

Posadas certainly provides support for this proposition: “In
our view,” the Supreme Court held, “the greater power to
completely ban casino gambling necessarily includes the
lesser power to ban advertising of casino gambling.” 478 U.S.
at 345-46. Indeed, underscoring the applicability of this logic
to the present case, Posadas endorsed the presumptive valid-
ity of the very Nevada statutes at issue here: Posadas cited
Nevada Revised Statute §§ 201.430 & 201.440 and noted that
“[i]t would . . . surely be a strange constitutional doctrine
which would concede to the legislature the authority to totally
ban a product or activity, but deny to the legislature the
authority to forbid the stimulation of demand for the product
or activity through advertising by those who would profit
from such increased demand.” 478 U.S. at 346.
10
Coyote Publishing briefly argues that strict scrutiny applies because
the advertising restrictions are content-based or because they comprise a
total ban on truthful advertising. As to the first argument, “whether or not
the . . . regulation is content-based, the Central Hudson test still applies
because of the reduced protection given to commercial speech.” Metro
Lights, 551 F.3d at 903 n.6. Plaintiff’s second argument is subsumed
within the Central Hudson analysis, which considers at step four whether
the restriction is “more extensive than . . . necessary.” Central Hudson,
447 U.S. at 566.
4122 COYOTE PUBLISHING v. MILLER
Subsequent decisions, however, have cast severe doubt on
the rule that restrictions on advertising of vice activity may
escape the intermediate scrutiny of Central Hudson simply by
virtue of the fact that they target vice. Edge Broadcasting, a
case challenging restrictions on broadcast advertisements for
state-run lotteries, did not reach the question, as it upheld the
restrictions under the Central Hudson test. United States v.
Edge Broad. Co., 509 U.S. 418, 425 (1993).

In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484
(1996), a plurality of the Court considered and rejected the
argument that the power to ban a vice activity necessarily
includes the power to ban the accompanying commercial
speech. Id. at 511. The plurality expressly disavowed Posa-
das, declaring that “it is no answer [to First Amendment chal-
lenges] that commercial speech concerns products and
services that the government may freely regulate . . . .” Id. at
512.

[4] Decisions since 44 Liquormart have applied intermedi-
ate scrutiny to strike down restrictions on the advertising of
“vice activities,” indicating by necessary implication that a
more lenient standard than Central Hudson is not applicable.
See Greater New Orleans Broad. Ass’n, Inc. v. United States,
527 U.S. 173, 195-96 (1999) (gambling); Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 566 (2001) (tobacco products). As
we are constrained to follow Greater New Orleans Broadcast-
ing and Lorillard, we may not apply a general “vice excep-
tion” to the protections accorded to commercial speech.

Nevada also argues for an exception specific to prostitu-
tion. We agree that there are strong reasons why the sale of
sexual services, in particular, ought to be treated differently
than other advertising bans on “vice” activities.

The first derives from the degree of disfavor in which pros-
titution is held in our society, as reflected in law. In this
respect, prostitution is sui generis. Forty-nine of the fifty
 COYOTE PUBLISHING v. MILLER 4123
states today prohibit all sales of sexual services. 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,11 the permission to other
counties to ban the practice, and the advertising restrictions
here at issue.

The social condemnation of prostitution, therefore, is vastly
more widespread — and vastly more consistent — than in the
case of other categories of “vice” that courts have considered,
such as alcohol, tobacco products, and gambling. This con-
demnation may be relevant to the degree of scrutiny applica-
ble to these advertising restrictions. The protection of
commercial speech is at least in part instrumental, in the sense
that courts are concerned about the efficient allocation of the
underlying good or service. As the Supreme Court recognized
in Virginia State Board, 425 U.S. at 765,

[a]dvertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemination
of information as to who is producing and selling
what product, for what reason, and at what price. So
long as we preserve a predominantly free enterprise
economy, the allocation of our resources in large
measure will be made through numerous private eco-
11
Clark County is home to 1,865,746 of the 2,600,167 people in
Nevada, or approximately 72 percent of the state’s population. U.S. Cen-
sus Bureau, Clark County, Nevada Quickfacts, http://quickfacts.
census.gov/qfd/states/32/32003.html (January 21, 2010).
4124 COYOTE PUBLISHING v. MILLER
nomic decisions . . . . To this end, the free flow of
commercial information is indispensable.

See also In re R. M. J., 455 U.S. 191, 201 n.11 (1982) (“The
commercial speech doctrine is . . . based in part on certain
empirical assumptions as to the benefits of advertising.”).
When the underlying service is of extremely little value, as
demonstrated by near consensus within our society, the need
for its efficient allocation and distribution is less compelling.

The nature of the market in sexual services, such as it is,
provides an additional reason why the goal of efficiency
applies with less force. In light of prevailing sexual mores, a
highly transparent, and thus efficient, market for sex is a chi-
mera. In this respect, sex is not a commodity.12 Commercial
speech decisions routinely display concern over the risk of
distortion of competitive markets. Greater New Orleans
Broadcasting, 527 U.S. at 189-91, for example, struck down
a restriction on advertising of gambling in large part because
it favored tribal commercial casinos over non-tribal commer-
cial casinos; 44 Liquormart, 517 U.S. at 502, invalidated a
ban on price advertising of liquor that “like a collusive agree-
ment among competitors . . . [would] tend to mitigate compe-
tition and maintain prices at a higher level than would prevail
in a completely free market”; and Central Hudson, 447 U.S.
at 570, disapproved a ban on advertising electricity because
of the risk that it would stifle innovation in the energy sector.
In the context of the legal sale of sexual acts, in contrast, there
is relatively little market competition to distort.13
12
Avoiding the complete commodification of sex is the state interest that
Nevada asserts in support of its advertising restrictions. We assess the sub-
stantiality of this interest in Part II-A of this opinion.
13
We make this observation in part because of the limited extent of the
market, but also because of the lack of transparency inherent in commer-
cial sexual transactions. Even in legal brothels in Nevada, for example,
prices typically are not agreed upon until after a sex worker and client
have removed to a private room. See Alexa Albert, BROTHEL 19-20.
 COYOTE PUBLISHING v. MILLER 4125
Commercial speech doctrine also has been driven in part by
objections to paternalistic regulatory policies, which assume
that individual consumers need to be protected from their own
choices. See Virginia State Bd., 425 U.S. at 770; 44 Liquor-
mart, 517 U.S. at 503 (plurality opinion). Nevada’s advertis-
ing restrictions, however, are not based on the premise that
consumers of the advertising will act “irrationally” to their
own detriment. See id. Instead, as developed later, a central
premise of the restrictions is that the advertising of prostitu-
tion is an integral aspect of, and exacerbates, the commodifi-
cation of human sexuality on a society-wide basis.
Regulations that are addressed to the third-party effects of pri-
vate transactions, not to protecting people from themselves,
are more likely to be consonant with First Amendment values.

[5] Thus, two of the core justifications for protecting com-
mercial speech — facilitating efficient market exchange and
shunning paternalism — apply with less force in this context.
Nevertheless, we follow the Supreme Court’s lead and apply
Central Hudson where it provides “an adequate basis for deci-
sion.” Lorillard, 533 U.S. at 554-55; Greater New Orleans
Broad., 527 U.S. at 184. The distinctive contours of the prob-
lem of prostitution outlined above are relevant to the Central
Hudson analysis. But they do not require that we discard the
overall standard altogether rather than incorporating the
points of distinction where they fit when applying that stan-
dard, as we shall do later in this opinion.

We are, of course, aware of the existence of a vast illegal market in sex-
ual acts, in Nevada and elsewhere. See id. at 171 (describing the abun-
dance of advertisements for “Entertainers” in the Las Vegas Yellow
Pages). Commercial speech doctrine, however, is not concerned with the
efficient operation of illegal, “black” markets. See United States v. Wil-
liams, 128 S.Ct. 1830, 1841 (2008) (“Offers to engage in illegal transac-
tions are categorically excluded from First Amendment protection.”). In
any event, these markets, precisely because they are illegal, are less trans-
parent and efficient than their size would otherwise predict.
4126 COYOTE PUBLISHING v. MILLER
[6] We therefore apply the familiar four-part test:

At the outset, we must determine whether the
expression is protected by the First Amendment. For
commercial speech to come within that provision, it
at least must concern lawful activity and not be mis-
leading. Next, we ask whether the asserted govern-
mental interest is substantial. If both inquiries yield
positive answers, we must determine whether the
regulation directly advances the governmental inter-
est asserted, and whether it is not more extensive
than is necessary to serve that interest.

Central Hudson, 447 U.S. at 566.

Because, as will appear, Nevada’s interest in limiting the
commodification of sex is important to the analysis at each
step, we begin by assessing the substantiality of that interest.
We then turn to the remaining steps of Central Hudson.

A.

We first consider whether Nevada has asserted substantial
state interests in support of its advertising restrictions. Nevada
relies largely on an asserted interest in limiting the commodi-
fication of sex.14
14
In their submissions, Coyote Publishing characterizes this interest as
“not allowing minors to learn of the existence of legal brothels.” We do
not understand Nevada’s argument to be so narrow. Nevada’s opening
brief explains that the advertising restrictions serve to “limit[ ] prostitu-
tion’s profile in society.” Thus, although Nevada does argue in particular
that children should not be exposed to prostitution advertisements, the
state’s concern over sex commodifying advertisements goes beyond chil-
dren to encompass society in general.
To the extent that Nevada asserts an interest in protecting minors from
age-inappropriate messages, the advertising restrictions may well be over-
broad with respect to such an interest because not sufficiently tailored to
avoid infringing on advertising directed to adults. See Lorillard, 533 U.S.
 COYOTE PUBLISHING v. MILLER 4127
We are aware of no case that considers the substantiality of
a state’s interest in preventing commodification — the turning
of a good or service into a commodity to be bought and sold
— for purposes of constitutional balancing. But the bedrock
idea that “[t]here are, in a civilized society, some things that
money cannot buy” is deeply rooted in our nation’s law and
public policy. See In re Baby M, 537 A.2d 1227, 1249 (N.J.
1988). The Thirteenth Amendment to the U.S. Constitution
enshrines the principle that people may not be bought and
sold as commodities. Payment for consent to adoption of a
child is widely prohibited. E.g., Cal. Pen. Code § 273; see
also In re Adoption of Paul, 550 N.Y.S.2d 815, 817-18 (N.Y.
Fam. Ct. 1990). In many states, surrogacy contracts are unen-
forceable, e.g., Mich. Comp. Laws § 722.855 (“A surrogate
parentage contract is void and unenforceable as contrary to
public policy.”), and payment of money in exchange for sur-
rogacy is prohibited, e.g., Ariz. Rev. Stat. § 25-218 (abrogated
on other grounds by Soos v. Superior Court, 897 P.2d 1356
(Ariz. Ct. App. 1994)); see generally Noa Ben-Asher, The
Curing Law: On the Evolution of Baby-Making Markets, 30
CARDOZO L. REV. 1885, nn.128-131 (2009). Federal law for-
bids the sale of human organs. National Organ Transplant
Act, Pub. L. No. 98-507, 98 Stat. 2339, 42 U.S.C. § 274e
(1984).15

at 564-65; see also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
73-74 (“The level of discourse reaching a mailbox simply cannot be lim-
ited to that which would be suitable for a sandbox.”). We need not decide
whether that is so or not, as we conclude that the restriction is valid with-
out regard to the asserted state interest in protecting children in particular.
15
We do not mean by recording these somewhat analogous circum-
stances to suggest that the same considerations that apply to evaluating
bans on advertising prostitution would apply with equal force in other con-
texts. As to surrogacy, for example, there are swiftly evolving public pol-
icy approaches in various states, including an extensive, fully legal
market. See Gestational Surrogacy Act, 750 Ill. Comp. § 47/1514-190.9
(2003); N.H. Rev. Stat. § 168-B:16 (1990). Many of the key consider-
ations we rely on here with regard to prostitution therefore do not apply.
4128 COYOTE PUBLISHING v. MILLER
These public policies may be motivated in part by concerns
about the indirect consequences of permitting such sales, but
they are also driven by an objection to their inherent com-
modifying tendencies — to the buying and selling of things
and activities integral to a robust conception of personhood.
See Baby M, 537 A.2d 1227, 1234 (declaring paid surrogacy
contracts “potentially degrading to women”); see also Marga-
ret Jane Radin, Market-Inalienability, 100 HARV. L. REV.
1849, 1912 (1987) (“[W]e accept an inferior conception of
personhood . . . if we suppose people may freely choose to
commodify themselves.”).

Whether the law ought 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, is a
question much contested among legal academics and philoso-
phers. Compare Radin at 1924-25 (advocating a system of
incomplete commodification of sexuality in which decrimi-
nalization of prostitution is coupled with restrictions on capi-
talist entrepreneurship and advertising — a system much like
Nevada’s) with Ann Lucas, The Currency of Sex: Prostitution,
Law, and Commodification, in RETHINKING COMMODIFICATION
248, 254-58 (Ertman & Williams eds., 2005) (arguing that the
idea that the sale of sex is damaging to personhood is cultur-
ally contingent and paternalistic). And it may well be that lim-
iting the commodification of human sexuality is in some
tension with other ostensible goals of Nevada’s scheme, such
as protecting women from being forced into prostitution and
empowering them to make choices in the course of selling
sexual services. See Martha C. Nussbaum, Taking Money for
Bodily Services, in RETHINKING COMMODIFICATION 243, 246-47
(Ertman & Williams eds., 2005) (arguing that failure to recog-
nize that the sale of sexual services is akin to the sale of any
other manual labor is the largest obstacle to improving condi-
tions for sex workers). But these questions are not for us to
decide. In most cases that we can imagine — slavery, given
the Thirteenth Amendment, being an obvious exception —
including this one, it belongs to the political branches to fix
 COYOTE PUBLISHING v. MILLER 4129
the boundary between those human interactions governed by
market exchange and those not so governed. In every state but
Nevada, that boundary has been drawn so as to forbid such
transactions entirely, including the proposing of such transac-
tions through advertising. Nevada has, uniquely for this coun-
try, 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.16 We conclude that the interest in preventing the
commodification of sex is substantial.

We emphasize that our holding is grounded in two distinc-
tive characteristics of prostitution, each of which is critical to
our conclusion:

[7] 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 regula-
tors. 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
16
Nevada’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.).
4130 COYOTE PUBLISHING v. MILLER
CONTRACTS § 2.4 (1993). Speech that “does no more than pro-
pose a commercial transaction,” see Virginia Bd. of Phar-
macy, 425 U.S. at 762, is particularly susceptible to regulation
when the state’s objection is to the commercial transaction
itself.

[8] Second, public disapproval of prostitution’s com-
modifying 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 Pros-
titution: 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) (cit-
ing 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 coali-
tion 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 pub-
lished 1886) (“[T]he slaveholding principle that the human
 COYOTE PUBLISHING v. MILLER 4131
body may be an article of merchandise is still applied to
women.”)).

The anti-commodification orientation of the early oppo-
nents of legalized prostitution was reflected in the nature of
the criminal prohibitions adopted early in the twentieth cen-
tury. 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, espe-
cially interstate and international trafficking in women. 36
Stat. 825 (1910).

[9] 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. Ban-
ning 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 sex-
ual 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 (and where most outsiders
visit), Clark County.17
17
We note that although official enforcement of some of the prostitution
regulations may be inconsistent, see supra note 2, the sociological evi-
4132 COYOTE PUBLISHING v. MILLER
[10] Nevada has therefore struck its own idiosyncratic bal-
ance between various important but competing state interests.
The state’s dual approach does not make its asserted interest
in limiting commodification of sex any less substantial than
in the states that ban commercial sex transactions entirely.
Instead, it is the other primary aspects of the Central Hudson
analysis that may be implicated by Nevada’s divided
approach — whether the speech regulations “directly and
materially” advance the state’s interest in limiting commodifi-
cation of sex, and whether the regulations are narrowly tai-
lored. See Greater New Orleans Broad., 527 U.S. at 188.

Before addressing those questions, however, we pause
briefly to consider whether prostitution is “legal activity” in
Nevada, a threshold requirement for speech to receive consti-
tutional protection under Central Hudson, concluding that the
complexities of Nevada’s regulatory scheme make the ques-
tion a difficult one and one unnecessary to decide in this case.

B.

Central Hudson specifies that if the regulated speech con-
cerns illegal activity or is misleading, the First Amendment
extends no protection and the analysis ends. 447 U.S. at
563-64. Nevada does not assert that the advertising of prosti-
tution is false, deceptive, or misleading, so we confine our
discussion at this step to the legality of prostitution.

Nevada contends that the advertising at issue is unpro-
tected, at least in those counties where prostitution is prohib-

dence suggests that the effort to fight sexually transmitted diseases and
violence in brothels has been highly successful overall. See Alexa E.
Albert, David Lee Warner & Robert Hatcher, Facilitating Condom Use
with Clients during Commercial Sex in Nevada’s Legal Brothels, 88 AM.
J. PUB. HEALTH 643, 644 (1998); Alexa Albert, BROTHEL at 153; Barbara
Brents & Kathryn Hausbeck, Violence and Legalized Brothel Prostitution
in Nevada: Examining Safety, Risk, and Prostitution Policy, 20 J.
INTERPERSONAL VIOLENCE 270, 286 (2005).
 COYOTE PUBLISHING v. MILLER 4133
ited, because prostitution is not legal activity in those
counties. Prostitution is legal, however, in the counties that
house licensed brothels, and it is made legal pursuant to the
laws of Nevada, not the laws of some other jurisdiction.

The question whether a state can ban advertising of a trans-
action legal where it is finally carried out but not where it is
proposed through advertising does not arise in the typical
commercial speech case. Often, the two jurisdictions are one
and the same. See, e.g., Lorillard, 533 U.S. at 533-34 (consid-
ering intra-state tobacco advertising and sales). In other
instances, the laws of the two jurisdictions do not materially
differ. For example, in Bigelow v. Virginia, involving a chal-
lenge to Virginia’s attempt to restrict the advertising of abor-
tion services available in New York, there was “[n]o claim . . .
that the advertisement . . . related to a commodity or service
that was then illegal in either Virginia or New York.” 421
U.S. 809, 828 (1975). In both Edge Broadcasting and Greater
New Orleans Broadcasting, involving challenges to federal
restrictions on gaming advertisements, individual states had
banned the gaming activities at issue, but it was the federal
government that was regulating speech, and federal law did
not ban the activities. 509 U.S. at 426; 527 U.S. at 180, 183.
Here, by contrast, the regulating jurisdiction — the state of
Nevada — has made prostitution illegal, at least in its major
population center.

Moreover, in Bigelow, Edge Broadcasting, and Greater
New Orleans Broadcasting, the interests asserted to justify the
restrictions had nothing to do with the direct effects of the
advertising at the time and place of consumption of those
advertisements, i.e., in the jurisdiction where the advertised
activity was illegal. Rather, those restrictions were justified in
terms of the negative consequences that might flow from resi-
dents of one state traveling to another to obtain a service. See
Bigelow, 421 U.S. at 824 (“A State does not acquire power or
supervision over the internal affairs of another State merely
because the welfare and health of its own citizens may be
4134 COYOTE PUBLISHING v. MILLER
affected when they travel to that State.”); Edge Broad., 509
U.S. at 433-34 (describing the restrictions’ purpose as “dis-
couraging [non-lottery state residents’] participation in lot-
teries”); Greater New Orleans Broad., 527 U.S. at 185
(describing the restrictions’ purpose as “reducing the social
costs associated with [casino gambling]”).18 It is consistent
with fundamental precepts of our federal system that the law
of the jurisdiction where the transaction is proposed should
govern the legality of those transactions, as citizens of one
state ordinarily are free to travel to another state and have
their behavior governed by the law of that second state. See
Saenz v. Roe, 526 U.S. 489, 500-02 (1999).

Nevada’s asserted interest in limiting commodification of
sex differs in a significant respect from the interests consid-
ered in Bigelow, Edge Broadcasting, and Greater New Orle-
ans Broadcasting. An advertisement that proposes the sale of
a sexual act does not merely create a risk that a consumer of
that message will travel in pursuit of such a transaction.
Instead, an advertisement for sex itself creates the commodifi-
cation harm that Nevada seeks to limit. The regulating juris-
diction thus has a different and greater interest, vis-a-vis the
jurisdiction where the transaction is proposed, in the context
of prostitution than in other commercial speech contexts.

There may, therefore, be some merit to Nevada’s novel
argument that the legality of prostitution ought to be assessed
by reference to the law of the counties in which the advertis-
ing occurs, rather than the law of the counties in which the
proposed transaction would take place. We need not decide,
18
In Washington Mercantile Association v. Williams, 733 F.2d 687, 691
(9th Cir. 1984), we upheld a restriction on the advertising of drug para-
phernalia under Central Hudson. In the course of that decision, we
observed, “[T]he advertiser who proposes a transaction in a state where
the transaction is legal is promoting a legal activity.” As in the Supreme
Court cases we have discussed, the regulating state in Washington Mer-
cantile did not assert any interest in preventing harms inherent in the
advertising messages.
 COYOTE PUBLISHING v. MILLER 4135
however, how the illegality concept applies in this case. Even
if we agreed with Nevada, the fact remains that Nevada’s
position on the legality of prostitution in much of the state is
essentially agnostic: county governments are free to license or
prohibit brothels at their option. See Nev. Rev. Stat.
§ 244.345. We would therefore have to proceed to the remain-
ing steps of the Central Hudson analysis in any event. And as
we develop in the ensuing discussion, the Nevada advertising
restrictions are valid — because narrowly tailored to advance
the interest in limiting commodification of sex — even if we
assume that the speech in question is accorded commercial
speech protection, rather than ousted from any protection
under the illegal transaction exception. There is therefore no
need to decide whether some of the advertising is entirely
unprotected speech under the Central Hudson illegality prong,
and we do not do so.

C.

At step three of Central Hudson, we ask whether Nevada’s
commercial speech restrictions “directly and materially
advance[ ]” its asserted interest in limiting the commodifica-
tion of sex. See Greater New Orleans Broad., 527 U.S. at
188.

[11] Increased advertising of commercial sex throughout
the state of Nevada would increase the extent to which sex is
presented to the public as a commodity for sale. The advertis-
ing restrictions advance the interest in limiting this commodi-
fication in two closely related ways. First, they eliminate the
public’s exposure — in some areas entirely, and in others in
large part — to advertisements that are in themselves an
aspect of the commodifying of sex. As the harm protected
against occurs in part from the proposal of the transaction,
banning or restricting the advertising directly reduces the
harm.

[12] Second, the advertising restrictions directly and mate-
rially advance Nevada’s interest in limiting commodification
4136 COYOTE PUBLISHING v. MILLER
by reducing the market demand for, and thus the incidence of,
the exchange of sex acts for money, which by definition is
commodifying of sex. Nevada might be able to reduce the
buying and selling of sex acts to a greater degree by institut-
ing a complete ban on prostitution (although there has been no
showing that the actual incidence of acts of prostitution, legal
and illegal, in Nevada is greater than it would be under a total
ban). But it has chosen to take an approach to reducing
demand that will not short-circuit the health and safety gains
that come with partial legalization.

Nevada’s chosen approach directly and materially advances
the state’s policy of limiting commodification without under-
mining its competing health and safety goals. Common sense
counsels that advertising tends to stimulate demand for prod-
ucts and services. Conversely, prohibitions on advertising
tend to limit demand. See Edge Broad., 509 U.S. at 434
(“[T]he Government may be said to advance its purpose [of
reducing demand for lotteries] by substantially reducing lot-
tery advertising . . . .”); Posadas, 478 U.S. at 344; Valley
Broad. Co. v. United States, 107 F.3d 1328, 1334 (9th Cir.
1997); see also Rubin v. Coors Brewing Co., 514 U.S. 476,
489 (1995) (“It is assuredly a matter of ‘common sense’ . . .
that a restriction on the advertising of a product characteristic
will decrease the extent to which consumers select a product
on the basis of that trait.”). Reducing the demand for commer-
cial sex acts in turn limits the commodification of sex.

At the same time, Nevada’s decision to legalize prostitution
obviously contributes to some extent to the commodification
of sex. See Michael Shapiro, Regulation as Language: Com-
municating Values by Altering the Contingencies of Choice,
55 U. PITT. L. REV. 681, 687 (1994). Yet, as will appear from
our discussion of tailoring, infra, this is not a case where the
advertising restrictions themselves contain exceptions that so
“undermine and counteract” the asserted interest that the
restrictions fail the tailoring requirement. See Metro Lights,
L.L.C. v. City of Los Angeles, 551 F.3d 898, 905 (9th Cir.
 COYOTE PUBLISHING v. MILLER 4137
2009) (quoting Rubin, 514 U.S. at 487); cf. Greater New
Orleans Broad., 527 U.S. at 194-95. As the cases bearing on
tailoring illustrate, incoherence in the operation of speech reg-
ulations can be fatal to the constitutionality of a scheme of
regulation. In contrast, the fact that banning the underlying
activity outright would also promote the interest advanced by
restricting advertising does not by itself render a commercial
speech regulation unconstitutional. To so hold would be tanta-
mount to requiring that government utilize the least speech
restrictive means, which the Supreme Court has made clear is
not a sine qua non under Central Hudson. See Greater New
Orleans Broad., 527 U.S. at 188. Rather, at step three of Cen-
tral Hudson, we need only examine the contribution that the
advertising restrictions make to advancing the interest. Here,
the restrictions on prostitution advertising directly and materi-
ally advance Nevada’s interest in limiting the commodifica-
tion of sex.

Coyote Publishing suggests that Nevada’s interest in limit-
ing commodification is not materially advanced by the ban on
brothel advertising in the counties where they are not legal
because sexually suggestive material is already widely dis-
played in Nevada. The argument misses the point. Nevada
seeks to limit the message that sex may be bought and sold.
It does not object to sex per se, or to messages that utilize sex-
ual innuendo to sell other products. The persistence of those
other elements in Nevada society does not defeat Nevada’s
interest.

To be sure, there are goods and services for sale in the state
of Nevada whose advertisement may contribute to the com-
modification of human sexuality but that escape the advertis-
ing ban at issue here — for example, shows featuring nude
dancers. But Nevada asserts an interest in limiting the com-
modification of sexual acts; the buying and selling of nude
images is a different concern. Nor is this distinction too fine
for purposes of the First Amendment. It is the very distinction
4138 COYOTE PUBLISHING v. MILLER
that drives the legislative choices of the many states that per-
mit nude dancing but not prostitution.19

[13] In sum, we conclude that Nevada’s substantial interest
in limiting the commodification of sex is directly and materi-
ally advanced by the restrictions on brothel advertising.

D.

[14] Finally, we must assess whether the restrictions on
advertising are “more extensive than necessary” in light of
Nevada’s interests. Central Hudson, 447 U.S. at 566. “The
Government is not required to employ the least restrictive
means conceivable,” but “it must demonstrate narrow tailor-
ing of the challenged regulation to the asserted interest — a
fit that is not necessarily perfect, but reasonable . . . .” Greater
New Orleans Broad., 527 U.S. at 188 (internal quotation
marks omitted).

[15] Nevada bans brothel advertising completely in coun-
ties where prostitution is illegal. In light of the fact that prosti-
tution advertisements are themselves an aspect of the
commodification harm that Nevada seeks to limit, we have no
trouble concluding that the advertising restrictions are nar-
rowly tailored. Every advertisement for prostitution that is not
seen contributes to limiting the commodification of sex, both
directly and by reducing demand. Coyote Publishing points to
no application of the law that would fail to advance Nevada’s
interest. Cf. Lorillard, 533 U.S. 561-64 (striking down restric-
tions on tobacco advertising justified only with respect to pro-
tecting children because the restrictions infringed
19
See Cal. Penal Code § 318.5; N.C. Gen. Stat. Ann. § 14-190.9; Mass.
Gen. Laws Ann. ch. 140, § 183A; Federal Heights Mun. Code ch. XII, art.
XII, § 12-12-11(B), cited in Essence, Inc. v. City of Fed. Heights, 285 F.3d
1272, 1279 n.5 (10th Cir. 2002) (Colorado).
 COYOTE PUBLISHING v. MILLER 4139
substantially on communications that targeted adults, not chil-
dren).20

Nevada’s approach in counties where prostitution is legal
is less straightforward. In those counties, legal brothels may
advertise, but may not do so “[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)(a). This aspect of Nevada’s
scheme requires a more in-depth analysis of tailoring, which
has proven the most exacting requirement of Central Hudson
in recent cases. In 44 Liquormart, for example, the opinions
that made up the Court’s fractured disposition agreed that
Rhode Island had offered no satisfying reason why its pur-
ported goal of increasing liquor prices was better served by
advertising restrictions than by “obvious” alternative means.
See 517 U.S. at 507, 530. And in Greater New Orleans
Broadcasting, the regulatory scheme failed the tailoring
requirement because it arbitrarily discriminated between tribal
and non-tribal commercial casinos and fell short of “a rough
approximation of efficacy.” 527 U.S. at 189-91, 194-95.

Nevada’s scheme does not suffer from these infirmities.
Nevada’s choice to pursue its state interests by regulating
advertising rather than the alternative means of banning all
prostitution directly is a unique one in this country, but not
one without a well-developed policy basis: partial legalization
and regulation serves Nevada’s competing, substantial inter-
20
We note that for a state that uniformly prohibits both prostitution and
prostitution advertising, the tailoring inquiry would end there. There can
be no question that a decision by California or Arizona to ban within their
borders the advertising of prostitution legal in Nevada would survive this
step — and the foregoing steps — of Central Hudson, just as there can be
no question that the United States would not be prevented by the First
Amendment from banning advertising within its borders of child prostitu-
tion establishments located in an overseas jurisdiction where such estab-
lishments are legal. Where a regulating jurisdiction seeks to limit the
commodification of sex, a uniform ban on prostitution advertising is well-
tailored to that goal.
4140 COYOTE PUBLISHING v. MILLER
ests in preventing the spread of sexually transmitted disease
and protecting sex workers from abuse. Cf. 44 Liquormart,
517 U.S. at 530 (“The ready availability of [alternatives]—at
least some of which would far more effectively achieve
Rhode Island’s only professed goal, at comparatively small
additional administrative cost—demonstrates that the fit
between ends and means is not narrowly tailored.”)
(O’Connor, J., concurring) (emphasis added). The First
Amendment does not require that a regulatory regime single-
mindedly pursue one objective to the exclusion of all others
to survive the intermediate scrutiny applied to commercial
speech regulations.

[16] In permitting some unobtrusive, non-public forms of
advertising in counties where brothels are legal, Nevada has
achieved “a fit that is not necessarily perfect, but reasonable.”
Greater New Orleans Broad., 527 U.S. at 188. By keeping
brothel advertising out of public places, see Nev. Rev. Stat.
§ 201.430(1)(a), where it would reach residents who do not
seek it out, but permitting other forms of advertising likely to
reach those already interested in patronizing the brothels,
Nevada strikes a balance between its interest in maintaining
economically viable, legal, regulated brothels and its interest
in severely limiting the commodification of sex.

[17] Especially in light of the fact that this is a facial chal-
lenge, we are unable to strike down these regulations. As we
held in rejecting another First Amendment challenge to adver-
tising restrictions, “the overbreadth of a statute must not only
be real, but substantial as well, judged in relation to the stat-
ute’s plainly legitimate sweep to justify invalidating the stat-
ute on its face.” Wash. Mercantile, 733 F.2d at 692 (internal
quotation marks omitted). Nevada has tailored its restrictions
on advertising to attain a reasonable fit between ends and
means.
 COYOTE PUBLISHING v. MILLER 4141
III.

[18] In sum, we hold that the restrictions on brothel adver-
tising contained in Nevada Revised Statute §§ 201.430-440
are consistent with the First Amendment.

REVERSED.

NOONAN, Circuit Judge, concurring:

I agree with the result of Judge Berzon’s thoughtful opin-
ion. I take a different route to reach it.

Nevada states that its advertising restrictions are intended
to protect minors. But such a rationale scarcely suffices to jus-
tify restrictions on speech intended for adults. See, e.g., Reno
v. Am. Civil Liberties Union, 521 U.S. 844, 875 (1997) (The
“governmental interest in protecting children from harmful
materials . . . does not justify an unnecessarily broad suppres-
sion of speech addressed to adults.”). Nevada’s other articula-
tion of Nevada’s interest in restricting advertising in Nevada
by brothels licensed as lawful by Nevada counties is that
Nevada seeks “to limit the profile of prostitution” in Nevada.
Obviously that limitation is the purpose of the Nevada stat-
utes. But the purpose of the statutes is not the same as the
interest that the state is seeking to protect. Nevada, in the pre-
sentation of its case to us, has not articulated the state’s inter-
est as fully as one might hope.

Neither Judge Berzon nor I takes this failing to be the end
of state’s case. Judge Berzon finds the state’s interest implicit
in its other arguments. The state, she says, has an interest in
preventing the sale of sexual intercourse by human beings.
The state could prohibit such sale entirely. Forty-nine states
and six Nevada counties, including the county containing Las
Vegas, do. But the state may take a half-step: it may ban the
4142 COYOTE PUBLISHING v. MILLER
advertising of brothels in counties where they are unlawful,
and limit the advertising of brothels where they are permitted.

I agree with the offered rationale, but recognize that to use
it we are relying on a kind of state interest not heretofore
addressed in the Central Hudson line of cases. We recognize
that the sexual intercourse of human beings is not like gam-
bling, drinking, or smoking. As Nevada tells us in its brief, it
is sui generis. It is an act performed in private. It is an act not
usually engaged in with strangers. It is an act limited by law
as to age and blood relationship. It is the way that human life
is usually propagated. It is the way that families are usually
formed. It is the way in which human love finds its fullest
physical expression.

The state of Nevada has proclaimed its interest in this activ-
ity by its statutes regulating the creation of marriage, Nev.
Rev. Stat. §§ 122.002-122.270; by its statutes governing the
dissolution of marriage, id. §§ 125.005-125.560; by its stat-
utes specifying the devolution of intestate property, id.
§§ 134.005-134.210; by its statutes governing the emancipa-
tion of minors, id. §§ 129.080-129.140; and by its statute
shielding spouses from testifying against each other, id.
§ 49.295. The network of laws setting off married couples
from unmarried individuals testifies to the central role of sex-
ual intercourse in civil society in Nevada as elsewhere in the
United States. Nevada’s interest in preventing advertisements
for the sale of an activity central to the domestic life of its
inhabitants does not need to be spoken by its attorney general.
Its interest is stated in its statutes.

No need to go further to defend the Nevada statutes at
issue. I strengthen the argument by noting Footnote 20 of
Judge Berzon’s opinion. It states, there is no question that
California or Arizona could constitutionally ban the advertis-
ing of the legal Nevada brothels and that the United States
similarly could ban the advertisement of child prostitution that
was lawful in a foreign jurisdiction. I agree. But why can such
 COYOTE PUBLISHING v. MILLER 4143
activity lawful in one jurisdiction be kept from being adver-
tised in another jurisdiction? The answer, implicit in Judge
Berzon’s opinion, is that California, Arizona, or the United
States may constitutionally suppress speech that offers sexual
intercourse for sale.