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Golden Gate University Law Review

Authors

Nicole E. Wolfe

Abstract

In Coyote Publishing, Inc. v. Miller, the Ninth Circuit considered the constitutionality of a Nevada statute that regulates commercial advertising of legal brothels. The Ninth Circuit held that severe restrictions on brothel advertising, even in counties where brothels are legal, are valid under the First Amendment. The court concluded that Nevada Revised Statutes sections 201.430(1) and 201.440, which largely prohibit the advertising of licensed brothels, met the four prongs of the Central Hudson test. Although the Ninth Circuit held that Nevada Revised Statutes section 201.430(1) was constitutional, the facts of the case did not apply to Nevada Revised Statutes section 201.430(2) and therefore the Ninth Circuit never addressed the constitutionality of this portion of the statute. Nevada Revised Statutes section 201.430(2) nevertheless facially restricts more than just purely commercial speech. Consequently, section 201.430(2) is over broad and should be subject to a strict scrutiny analysis, as opposed to the more moderate Central Hudson test.

This Note discusses how Nevada Revised Statutes section 201.430(2) facially restricts more than just purely commercial speech and would fail strict scrutiny analysis. The Ninth Circuit in Coyote Publishing, Inc. v. Miller did not address the constitutionality of this section because the facts of the case pertained to advertising of licensed brothels, which is regulated by section 201.430(1), as opposed toadvertising of unlicensed brothels, which is regulated by section201.430(2). Part I of this Note gives a brief history of prostitution, outlines the constitutionality of commercial speech regulations pursuant to the Central Hudson test and explains the Ninth Circuit’s reasoning in Coyote Publishing for concluding that Nevada Revised Statutes section 201.430(1) applies solely to commercial speech. Part II argues that although the Ninth Circuit held that Nevada Revised Statutes section 201.430(1) applies solely to commercial speech, section 201.430(2) should be invalidated by the doctrine of overbreadth because it regulates commercial as well as noncommercial speech. Finally, Part III proposes that a strict scrutiny analysis is the appropriate level of scrutiny to analyze Nevada Revised Statutes section 201.430(2). This Part also argues that section 201.430(2) would fail a strict scrutiny analysis because it is not narrowly tailored to achieve a compelling state interest.

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