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
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

COYOTE PUBLISHING v. MILLER 4113
dazzling, [the] daily hand-to-hand fight against prostitution 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, accommodates 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.

1From 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). 

4114 COYOTE PUBLISHING v. MILLER
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 residents 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 coercion 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 forbidden. Nev. Rev. Stat. § 201.330. Section 201.320 makes it a

crime to live from the earnings of a sex worker.2

2Enforcement of these laws to protect sex workers appears to be lacking. 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). 

COYOTE PUBLISHING v. MILLER 4115
The state’s regulatory regime also restricts advertising by

legal brothels. The principal restrictions are two: First, brothels 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 advertise “[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

3Nev. 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, company, 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. 

4Nev. 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 prohibited 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 prohibited by local ordinance or where the licensing of a house of prostitution is prohibited by state statute. 

4116 COYOTE PUBLISHING v. MILLER
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 telling 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 violate 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, constitutes prima facie evidence of advertising for the purposes of

this section. 

* * * 

5Article 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 ConstituCOYOTE PUBLISHING v. MILLER 4117
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 compelling 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 preventing 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 district court.

II.

The threshold question is whether the advertising regulations at issue are subject to strict scrutiny or, as Nevada contends, 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. 

4118 COYOTE PUBLISHING v. MILLER
[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 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563-66 (1980).6

[2] Speech is “commercial” if it does “no more than propose 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 publication containing information listed in § 201.430(3) — including, 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.

6Several 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). 

7We 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). 

8Princess Sea Industries, Inc. v. State, 635 P.2d 281 (Nev. 1981) suggests such a limitation but does not make it explicit. In that case, the

COYOTE PUBLISHING v. MILLER 4119
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 restrictions). Still, we are not persuaded that section 201.430 burdens any significant quantum of fully protected, noncommercial 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 presumed 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 provision 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 different from advertising which contains factual material of clear ‘public interest.’ ” Id. at 287 (Manoukian, J., concurring) (citing Bigelow, 421 U.S. at

822). 

9Plainly, 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. 

4120 COYOTE PUBLISHING v. MILLER
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. Pointing 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 validity 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. 

10Coyote 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. 

COYOTE PUBLISHING v. MILLER 4121
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 Posadas, declaring that “it is no answer [to First Amendment challenges] that commercial speech concerns products and

services that the government may freely regulate . . . .” Id. at

512.

[4] Decisions since 44 Liquormart have applied intermediate 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 Broadcasting and Lorillard, we may not apply a general “vice exception” to the protections accorded to commercial speech. 

Nevada also argues for an exception specific to prostitution. 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 prostitution is held in our society, as reflected in law. In this

respect, prostitution is sui generis. Forty-nine of the fifty

4122 COYOTE PUBLISHING v. MILLER
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 condemnation may be relevant to the degree of scrutiny applicable 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 eco11Clark 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. Census Bureau, Clark County, Nevada Quickfacts, http://quickfacts.

census.gov/qfd/states/32/32003.html (January 21, 2010). 

COYOTE PUBLISHING v. MILLER 4123
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 chimera. 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 commercial casinos; 44 Liquormart, 517 U.S. at 502, invalidated a

ban on price advertising of liquor that “like a collusive agreement among competitors . . . [would] tend to mitigate competition 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

12Avoiding the complete commodification of sex is the state interest that

Nevada asserts in support of its advertising restrictions. We assess the substantiality of this interest in Part II-A of this opinion. 

13We make this observation in part because of the limited extent of the

market, but also because of the lack of transparency inherent in commercial 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.

4124 COYOTE PUBLISHING v. MILLER
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 Liquormart, 517 U.S. at 503 (plurality opinion). Nevada’s advertising 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 prostitution is an integral aspect of, and exacerbates, the commodification of human sexuality on a society-wide basis.

Regulations that are addressed to the third-party effects of private 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 commercial 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 decision.” Lorillard, 533 U.S. at 554-55; Greater New Orleans

Broad., 527 U.S. at 184. The distinctive contours of the problem 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 standard, as we shall do later in this opinion. 

We are, of course, aware of the existence of a vast illegal market in sexual acts, in Nevada and elsewhere. See id. at 171 (describing the abundance 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. Williams, 128 S.Ct. 1830, 1841 (2008) (“Offers to engage in illegal transactions are categorically excluded from First Amendment protection.”). In

any event, these markets, precisely because they are illegal, are less transparent and efficient than their size would otherwise predict. 

COYOTE PUBLISHING v. MILLER 4125
[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 misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield

positive answers, we must determine whether the

regulation directly advances the governmental interest 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 commodification of sex.14

14In 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[ ] prostitution’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 children 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 overbroad with respect to such an interest because not sufficiently tailored to

avoid infringing on advertising directed to adults. See Lorillard, 533 U.S.

4126 COYOTE PUBLISHING v. MILLER
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 unenforceable, 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 surrogacy 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 forbids 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 limited 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 without regard to the asserted state interest in protecting children in particular.

15We do not mean by recording these somewhat analogous circumstances to suggest that the same considerations that apply to evaluating

bans on advertising prostitution would apply with equal force in other contexts. As to surrogacy, for example, there are swiftly evolving public policy 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 considerations we rely on here with regard to prostitution therefore do not apply.

COYOTE PUBLISHING v. MILLER 4127
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 commodifying 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 Margaret 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 philosophers. Compare Radin at 1924-25 (advocating a system of

incomplete commodification of sexuality in which decriminalization of prostitution is coupled with restrictions on capitalist 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 culturally contingent and paternalistic). And it may well be that limiting 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 recognize that the sale of sexual services is akin to the sale of any

other manual labor is the largest obstacle to improving conditions 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

4128 COYOTE PUBLISHING v. MILLER
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 transactions through advertising. Nevada has, uniquely for this country, 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 distinctive 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 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.). 

COYOTE PUBLISHING v. MILLER 4129
CONTRACTS § 2.4 (1993). 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.

[8] 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

4130 COYOTE PUBLISHING v. MILLER
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. 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. 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 (and where most outsiders

visit), Clark County.17

17We note that although official enforcement of some of the prostitution

regulations may be inconsistent, see supra note 2, the sociological eviCOYOTE PUBLISHING v. MILLER 4131
[10] Nevada has therefore struck its own idiosyncratic balance 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 commodification of sex, and whether the regulations are narrowly tailored. 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 constitutional protection under Central Hudson, concluding that the

complexities of Nevada’s regulatory scheme make the question a difficult one and one unnecessary to decide in this case.

B.

Central Hudson specifies that if the regulated speech concerns 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 prostitution 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 unprotected, at least in those counties where prostitution is prohibdence 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). 

4132 COYOTE PUBLISHING v. MILLER
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 transaction 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 (considering 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 challenge to Virginia’s attempt to restrict the advertising of abortion 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 residents 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

COYOTE PUBLISHING v. MILLER 4133
affected when they travel to that State.”); Edge Broad., 509

U.S. at 433-34 (describing the restrictions’ purpose as “discouraging [non-lottery state residents’] participation in lotteries”); 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 considered in Bigelow, Edge Broadcasting, and Greater New Orleans 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 commodification harm that Nevada seeks to limit. The regulating jurisdiction 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 advertising occurs, rather than the law of the counties in which the

proposed transaction would take place. We need not decide,

18In Washington Mercantile Association v. Williams, 733 F.2d 687, 691

(9th Cir. 1984), we upheld a restriction on the advertising of drug paraphernalia 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 Mercantile did not assert any interest in preventing harms inherent in the

advertising messages. 

4134 COYOTE PUBLISHING v. MILLER
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 remaining 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 commodification 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 advertising restrictions advance the interest in limiting this commodification 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 materially advance Nevada’s interest in limiting commodification

COYOTE PUBLISHING v. MILLER 4135
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 instituting 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 undermining its competing health and safety goals. Common sense

counsels that advertising tends to stimulate demand for products 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 lottery 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 commercial 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: Communicating 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.

4136 COYOTE PUBLISHING v. MILLER
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 regulations 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 tantamount 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 Central Hudson, we need only examine the contribution that the

advertising restrictions make to advancing the interest. Here,

the restrictions on prostitution advertising directly and materially advance Nevada’s interest in limiting the commodification of sex. 

Coyote Publishing suggests that Nevada’s interest in limiting 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 displayed 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 sexual 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 commodification of human sexuality but that escape the advertising ban at issue here — for example, shows featuring nude

dancers. But Nevada asserts an interest in limiting the commodification 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

COYOTE PUBLISHING v. MILLER 4137
that drives the legislative choices of the many states that permit 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 materially 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 tailoring 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 counties where prostitution is illegal. In light of the fact that prostitution advertisements are themselves an aspect of the

commodification harm that Nevada seeks to limit, we have no

trouble concluding that the advertising restrictions are narrowly 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 restrictions on tobacco advertising justified only with respect to protecting children because the restrictions infringed

19See 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). 

4138 COYOTE PUBLISHING v. MILLER
substantially on communications that targeted adults, not children).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 purported 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 inter20We 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 prostitution establishments located in an overseas jurisdiction where such establishments are legal. Where a regulating jurisdiction seeks to limit the

commodification of sex, a uniform ban on prostitution advertising is welltailored to that goal. 

COYOTE PUBLISHING v. MILLER 4139
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 singlemindedly 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 challenge, we are unable to strike down these regulations. As we

held in rejecting another First Amendment challenge to advertising restrictions, “the overbreadth of a statute must not only

be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep to justify invalidating the statute 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.

4140 COYOTE PUBLISHING v. MILLER
III.

[18] In sum, we hold that the restrictions on brothel advertising 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 opinion. 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 justify 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 suppression of speech addressed to adults.”). Nevada’s other articulation 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 statutes. But the purpose of the statutes is not the same as the

interest that the state is seeking to protect. Nevada, in the presentation of its case to us, has not articulated the state’s interest 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

COYOTE PUBLISHING v. MILLER 4141
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 gambling, 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 activity 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 statutes specifying the devolution of intestate property, id.

§§ 134.005-134.210; by its statutes governing the emancipation 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 sexual 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 advertising 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

4142 COYOTE PUBLISHING v. MILLER
activity lawful in one jurisdiction be kept from being advertised 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.

COYOTE PUBLISHING v. MILLER 4143