The Printing Press to the Internet
15. Commercial Speech
C H A P T E R F I F T E E N Commercial Speech CONTROVERSY: If a business sells a legal product or activity, can government stop it from advertising that product or activity? What if it is widely accepted that the legal product or activity is a “vice,” such as liquor, alcohol, or gambling? What if the product were sex? In 11 counties in Nevada, customers are allowed to buy the services of pros- titutes employed at state-regulated brothels. But the state severely restricts advertising for paid sex in the 11 counties and bans it in the rest of the state. High Desert Advocate and Las Vegas City Life, owned by Coyote Publishing, and the Shady Lady Ranch brothel, challenged the Nevada advertising ban on First Amendment free speech grounds in a lawsuit filed in 2006. They won at the federal trial level. But the publisher and brothel owner lost in March 2010 before the U.S. Court of Appeals for the Ninth Circuit in Coyote Publishing, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010). In a 3–0 ruling, the court upheld the ban. That ruling is consistent with the U.S. Supreme Court’s widely criticized ruling on the constitutionality of bans on advertising of “vice” products and activities in Posadas de Puerto Rico Associates v. Tourism Co. of PR, 478 U.S. 328 (1986). But Posadas is a wobbly precedent. In Posadas, a majority of the Court held that, “the greater power to completely ban casino gambling...
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