## Facts

- Nevada permits prostitution only in licensed brothels in certain counties; counties above a population threshold, including Clark County, cannot license brothels.
- Nevada statutes restricted brothel advertising by (i) banning brothel ads in counties where prostitution is illegal and (ii) limiting ads in specified public places even in counties where brothels are legal.
- The statutes also treated inclusion of a brothel’s name or address in a publication as prima facie evidence of an advertisement, exposing publishers to potential liability.
- Two newspaper publishers and a licensed brothel owner sought to publish brothel advertisements, including in Clark County, and challenged the restrictions under the First Amendment and the Nevada Constitution’s free-speech provision.
- The district court held the restrictions were not limited to commercial speech, applied strict scrutiny, and invalidated the statutes; the state appealed.

## Issues

1. Whether the challenged restrictions regulate commercial speech and therefore are reviewed under the Central Hudson test rather than strict scrutiny.
2. Whether the restrictions satisfy Central Hudson by serving substantial governmental interests, directly advancing those interests, and being no more extensive than necessary.
3. Whether Nevada’s constitutional free-speech provision requires invalidation of the restrictions even if they satisfy the First Amendment.

## Decision

- The Ninth Circuit reversed the district court and upheld the statutes.
- The court held the advertisements at issue were commercial speech proposing a commercial transaction and were properly analyzed under Central Hudson.
- Applying Central Hudson, the court concluded Nevada’s interests were substantial, the restrictions directly advanced those interests, and the fit between means and ends was reasonable.
- The court rejected the Nevada constitutional claim, finding no basis to apply a more protective standard for commercial speech than the federal framework.

## Legal Principles

- Advertising that proposes a commercial transaction is commercial speech and is generally reviewed under the Central Hudson intermediate-scrutiny framework.
- Under Central Hudson, a state may restrict non-misleading commercial speech concerning lawful activity if the state shows (1) a substantial interest, (2) direct advancement of that interest, and (3) a reasonable fit that does not burden substantially more speech than necessary.
- A state may limit promotion of conduct that is legal only in some jurisdictions by restricting advertisements in jurisdictions where the conduct is illegal, when the restriction reasonably serves the state’s regulatory aims.
- Absent clear state-law authority providing greater protection, federal courts generally apply the federal commercial-speech analysis to parallel state constitutional free-speech claims involving commercial speech.

## Conclusion

The Ninth Circuit treated licensed-brothel advertising as commercial speech and upheld Nevada’s location-based advertising restrictions as a permissible regulation under Central Hudson, reversing the district court and rejecting broader protection under the Nevada Constitution.


Coyote Publ’g, Inc. v. Miller, 598 F.3d 592 (9th Cir. 2010)