Earlier this month, the Ninth Circuit Court of Appeals upheld a Nevada law that forbids legal brothels from advertising in Washoe and Clark counties, the only two counties where prostitution is illegal. For those unfamiliar with Nevada, the city of Reno is in Washoe county and Las Vegas is in Clark county.
This is yet another case where the courts simply brush aside the First Amendment as being inoperative because the state has a conflicting interest.
Thomas Mitchell has a nice editorial blasting the decision in the Las Vegas Review-Journal, picking apart the high points of the court’s opinion. The decision weighs the pros and cons of whether there is a benefit to be realized by the banning of the ads. But the First Amendment doesn’t provide for an exception if the government can cook up a good reason to ban speech.
What is stunning about cases like this is the fact that the courts often invent exceptions like this to the First Amendment’s prohibition against government regulation of press freedom and the very institutions that depend on those freedoms remain largely mute. In other words, the courts will do whatever they can get away with and, given the silence of the public, they can get away with a lot.