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Surrogacy & Brothels Make Strange Bedfellows

What does the surrogate industry have in common with Nevada’s Chicken Ranch? Well, according to the Ninth Circuit Court of Appeals, laws restricting advertising for both do not violate the First Amendment:

Nevada permits prostitution in six lightly-populated counties, while subjecting the act to a significant amount of regulation. This regulation includes laws that restrict the advertisement of prostitution. Brothels cannot advertise in counties where prostitution is banned by state statute or local ordinance, and brothels cannot advertise in a public theater, on public streets, or on public highways.

The publishers of two newspapers (that circulate where prostitution is illegal) and a brothel owner sued the state of Nevada, arguing that its advertising restrictions violate the First Amendment. The federal district court agreed and struck down the laws as unconstitutional.

The Ninth Circuit reversed. It concluded that the Nevada laws appropriately limited commercial speech. The court reasoned that Nevada has a substantial interest in working to prevent the commodification of sex within the state. The court concluded that the advertising restrictions advanced that interest, since increased advertising of prostitution would increase the extent to which sex is presented to the public as a commodity for sale. The court rejected the plaintiffs’ argument that sex is already commodified in Nevada due to available sexually suggestive material for sale. It noted that Nevada’s interest is in protecting against the idea that sex can be bought and sold, not in protecting against public exposure to sex itself.

Judge Noonan concurred. He emphasized that Nevada’s interest in regulating “the sale of an activity central to the domestic life of its inhabitants” is manifest and justifies the advertising restrictions.

In the Majority’s opinion, Judge Marsha Berzon cited Noa Ben-Asher’s law review article, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) in support of the proposition that the Constitution permits a variety of restrictions on commercial speech, including those imposed upon the surrogacy industry.


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