In today’s Coyote Publishing, Inc. v. Miller, the Ninth Circuit upheld Nevada’s restrictions on advertising legal prostitution; the opinion is long and has much interesting material, but here’s the heart of the analysis:
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.Second, the advertising restrictions directly and materially advance Nevada’s interest in limiting commodification 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 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 interests 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 single-mindedly pursue one objective to the exclusion of all others to survive the intermediate scrutiny applied to commercial speech regulations.
Query: How would courts decide whether it’s constitutional to ban or limit advertising of some newly and reluctantly legalized drugs?
Thanks to How Appealing for the pointer.
Denver says:
So are state laws banning Viagra ads on TV next? Can we hope it is so?
March 11, 2010, 3:11 pmcboldt says:
See too puritanical restrictions on advertising the legal substances “tobacco” and “alcohol.”
March 11, 2010, 3:13 pmHow courts decide is 1) choose the outcome, 2) cherry pick phrases from legal opinions, that support the desired outcome in the case in hand.
Allan Walstad says:
The government had no proper business in the first place meddling in people’s freedom to engage in sexual activity where money changes hands. The assault on freedom of speech merely piles injustice on injustice.
March 11, 2010, 3:25 pmSoronel Haetir says:
You forgot #3, hope a higher court with different outcome desires doesn’t notice.
March 11, 2010, 3:25 pmruuffles says:
Have there been any cases on ads selling condoms?
March 11, 2010, 3:25 pmArthur Kirkland says:
The establishments, their employees and their customers could protect their First Amendment right of expression by forming a religious organization.
The church’s signature sacred utterance, naturally, to be invoked at moments of heightened communion with nature and enlightenment, would be “Oh God, I’m . . .”
If faith healers, televangelists and the like are permitted to express ridiculous statements about investments, predictions, morality, superstitution and the like, and to scam the gullible at a fearsome clip, how could the government restrain truthful statements from the Church Of The Personal Temple?
On a legal level, the described reasoning seems unusually lame and result-driven.
March 11, 2010, 3:29 pmCalderon says:
I haven’t read the entire decision, but the logic in the section Eugene posted above seems difficult to square with Lorillard v. Reilly (among other cases). Adults have a protected constitutional interest in receiving information about buying cigarettes, and government restrictions that ban a large portion of advertisements aimed at adult are unconstitutional. Likewise, if prostitution is legal in a state, then it seems like under the same logic adults would have an interest in receiving information about that potential transaction and a law that “in some areas entirely, and in others in large part” eliminated such advertising would be unconstitutional. I’d think the State’s interest in reducing cigarette use would be at least as great as its interest in curbing prostitution, so the strength of the State’s interests shouldn’t make a difference.
March 11, 2010, 3:48 pmMike McDougal says:
Maybe the judges like legal prostitution and are worried that undermining the advertising restrictions would lead to increased legislative pressure on prostitution itself.
March 11, 2010, 4:02 pmAdam J says:
Allan Walstead- “The government had no proper business in the first place meddling in people’s freedom to engage in sexual activity where money changes hands. The assault on freedom of speech merely piles injustice on injustice.”
Allan- I’m not a huge fan of senseless regulation, but failing to regulate commercial sexual activity could create a public health hazard. You have to admit that government has some place in the prevention of health hazards. Heck, required licensing & regular STD tests actually increases the value of their “product” by reducing the risks of a customer buying far more then he/she bargained for.
March 11, 2010, 4:57 pmDjDiverDan says:
Gee, by that logic, the Federal Government ought to be banning the sale of sweet, salty or fatty treats and sweetened soft drinks to children, or at least banning the advertisement of such products, since childhood obesity is at an all-time high, leading to ever-increasing rates of Type-2 Diabetes.
As to the claim that “commercial sexual activity” is a threat to public health, just which part of the activity should the government ban? Any exchange of cash? While it’s been well established that currency is unusually dirty, I’m not aware of any epidemic of infection being spread by the exchange of dollar bills. And the government cannot ban sex – see Lawrence v. Texas. And much non-commercial sex – the closing-call pickup of the drunk chick at a sleazy bar, while perfectly legal, poses just as great a risk, perhaps greater, of spreading STDs. Indeed, the commercial sex available legally in Nevada, where condoms are mandatory, the women are tested monthly to keep their licenses, and the pre-deal inspection is required of every cutomer, is a whole lot safer that the usual random hook-up. So the claim that a ban on prostitution is for “public health reasons” is just a vapid rationalization for legislatively imposing your moral standards on others. And I reject the claim that I need the government to tell me what is good for me, or to compel my behavior through criminal sanctions.
March 11, 2010, 5:21 pmDon de Drain says:
Weak reasoning, indeed. But I’ll concur in the result if it means no more Viagra advertisements.
This is not the most interesting 9th Circuit opinion issued today, however. The Newdow Pledge of Allegiance case was decided today, with a 100+ page dissent by Judge Reinhardt. I skimmed both majority and dissenting opinions. The dissent quotes Sarah Palin and refers to the Tea Party Movement. This is gonna be a good read when I can find the time.
March 11, 2010, 5:23 pm......stays in vegas says:
DJdiverdan
“legislatively imposing your moral standards on others”
Isn’t this what most/all laws are? Society imposing standards of what is and is not permissible, usually measured against some (moral?) standard?
The problem is legislatively imposing restrictions on voluntary/consensual acts between two adults.
March 11, 2010, 5:37 pmLymis says:
In what sense? I’ve seen ads on TV for condoms. They don’t appear to be banned. They aren’t common, but they’re out there. And fairly creative.
March 11, 2010, 5:41 pmLymis says:
As people have said, whatever is supporting the restrictions on alcohol and tobacco ads would seem to support restricting these ads.
March 11, 2010, 5:42 pmDavid M. Nieporent says:
“Difficult to square with” is one of those lawyerly euphemisms. The (terrible) ruling flatly contradicts Lorillard (among other cases). It basically says, “We don’t care about those cases, because there’s a sex exception to the first amendment.” (Noonan’s concurrence doesn’t “basically” say that; it does say that, explicitly. That’s it’s entire argument.)
March 11, 2010, 5:47 pmNigel Kearney says:
Of course they should be able to advertise but a big part of the problem is that people have used harm minimisation arguments to justify legalization of prostitution and drug use, instead of just saying that private acts by consenting adults are none of the government’s business. People can hardly rely on harm minimisation arguments to get something legalized and then turn around and complain when the government wants to ban advertisements promoting it.
March 11, 2010, 5:56 pmCalderon says:
Having skimmed the opinion, I agree with you completely. There’s probably some argument that the advertising could be banned in counties where prostitution is illegal (though even that’s debatable), but the severe restrictions on advertising in counties where prostitution is legal are unconstitional under Supreme Court precedents.
Moreover, the majority opinion literally creates a prostitution (or commodification of sex) exception to commercial speech:
To me, that’s just astounding to create an exception out of whole cloth. There’s no precedent cited anywhere in the opinion to support that kind of justification. Moreover, much of the reasoning (such as it is) directly contradicts SC precedent. For example, this gem: “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.” Are you kidding me? Any half-competent attorney could argue that cigarettes, liquor, and gambling all have harmful third party effect and thus advertising of those products could be banned or severely limited to protect third parties. But the Supreme Court has decided otherwise for each of these products.
March 11, 2010, 6:07 pmThe Volokh Conspiracy » Blog Archive » More on Information About Prostitution says:
[...] the Law comments, apropos the prostitution advertising case, “If you need advertisements to help point you in the direction of prostitutes in a state where [...]
March 11, 2010, 6:12 pmPersonFromPorlock says:
Just another example of a ‘complex’ decision produced by the court’s trying to have it both ways.
Out of curiosity, can anyone here functionally distinguish a whorehouse from, say, a restaurant? In both cases what ought, ideally, to be given freely is sold, and there are potential health problems.
Not that I personally ever eat out.
March 11, 2010, 6:28 pmMalvolio says:
This decision seems DTSW (difficult to square with) Central Hudson Gas & Electric Corp. v. Public Service Commission (the basis for Lorillard v. Reilly). To prevail, the government should have had to show the law was narrowly tailored to advance the government interest in reducing commercial sex — but since every brothel is licensed and tax by the state of Nevada, the state had the ability to advance that goal in many ways that did not implicate free speech. I suppose it could be counter-argued that the state could only restrict supply and that the advertisements would stir up demand for commercial sex that would then be satisfied only on the black market.
The whole thing feel pretextual. Doesn’t it seem likely that Nevada (or the tourist industry in Nevada) feels that the ads are “unseemly”, that they give Nevada “a bad name”?
On the other hand (was it LBJ who longed for a one-armed economist, one who wouldn’t keep saying “On the other hand…”?), the facts seem almost identical to Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico — the vice in question was gambling, but the verdict was the same.
I was just in a city (Bangkok) where prostitution is technically illegal (a law considerably less well-respected than the 55-MPH speed limit ever was here) and I saw ads for brothels on taxis and buses.
March 11, 2010, 6:53 pmJohn Herbison says:
The linked opinion speaks of the state’s interest in limiting the commodification of sexual services. If sex is a commodity, can we buy and sell futures in it?
March 11, 2010, 8:11 pmJohn Herbison says:
I have tried to think of services or activities, other than engaging in sex, that it is lawful to perform gratis, but unlawful (in most jurisdictions) to perform for pay. The only other one that comes readily to mind is voting.
Organ donation qualifies in part, but there are some body parts or components that it is lawful to sell (e.g., blood, eggs, sperm).
Payment for the provision of governmental services is sometimes criminalized, as in bribery, but it is not unlawful to charge user fees, nor to pay salaries to governmental decisionmakers.
Anyone have any ideas?
March 11, 2010, 8:20 pmJust Dropping By says:
Yes, but only if you’re licensed as a commodities broker and comply with all CFTC regulations.
March 11, 2010, 8:22 pmMalvolio says:
Most official duties of public employees and certain private employees. You may not pay a police officer not to arrest you or to arrest someone else, but you are certainly allowed to try to convince him to do so by appealing to reason or sentiment.
March 11, 2010, 8:28 pmDr. Caligari says:
“I have tried to think of services or activities, other than engaging in sex, that it is lawful to perform gratis, but unlawful (in most jurisdictions) to perform for pay. The only other one that comes readily to mind is voting.”
Well, you can give your child up for adoption to a willing adoptive parent(s), but I think you’d get in trouble if you tried to sell Junior.
March 11, 2010, 8:29 pmMalvolio says:
It would add a whole new dimension to the phrase “going long”. And “naked put”. And “straddle”. And “open position”.
I’ll stop now.
Ooh, “price spread”! OK, I’m done now, I swear.
March 11, 2010, 8:32 pmJohn Herbison says:
As I noted, the police officer receives a salary, whether he makes a particular arrest or not. So his services are not gratis.
March 11, 2010, 8:36 pmLior says:
@Calderon:
But the law is rife with “exceptions” of all kinds, and every exception must be created at one point or another — it cannot simply be “turtles all the way down”. For example, the text of §1983 doesn’t have an “absolute immunity” exception or a “qualified immunity” exception — so some court must have invented them. The Sherman Act didn’t have a “baseball exception” until the courts said it did.
These exceptions are as American as apple pie. What’s so different about a “prostitution exception”? In fact, there is reasonable debate on whether the First Amendment covers commercial advertising at all. If it doesn’t, then the legislature should be able to issue these regulations.
[My personal opinion is that the First Amendment does cover advertising just like any other form of speech, including advertising of services which are unpopular with the legislators in their official capacity. But then I also have an extremely low opinion of the other exceptions mentioned above, exceptions that SCOTUS is enthusiastic about].
March 11, 2010, 8:38 pmSam Hall says:
You can make beer and wine at home and give it away, but you can’t sell it.
March 11, 2010, 8:39 pmJim Moran Is An Idiot says:
Why wait for state laws when Congress is already on the job? See H.R.2175
March 11, 2010, 8:42 pmLarryA says:
Why do I keep wanting to compare this to limits on advertising by lawyers?
March 11, 2010, 8:48 pmJohn Herbison says:
There is an old joke to the effect that prostitutes and lawyers each screw people for money.
Another joke comes to mind. Two older lawyers were crossing the street, when a winsome young woman bounced past in the opposite direction. One lawyer said to the other, “I sure would love to screw her.” His colleague replied, “Outta what?”
March 11, 2010, 8:54 pmRicardo says:
Obesity is not contagious, STDs are.
I’ve long been in favor of legalizing prostitution. However, every society that has done so has imposed requirements that prostitutes undergo periodic STD checking and that they insist on condoms with every client. The Netherlands also has a problem with organized crime smuggling in Eastern European women illegally to work as prostitutes with the smugglers taking a huge cut of their earnings — background checks and licensing requirements would be useful to help stop this.
50% of American women have 4 or fewer lifetime sexual partners while 90% have fewer than 15 lifetime partners. By contrast, the average prostitute will have hundreds of sexual partners during her career. That not only puts her at a very high risk of contracting STDs but also makes her a “vector” for STD transmission — her clients will then go on to infect their wives or girlfriends.
March 11, 2010, 9:26 pmCalderon says:
Lior — the point of my post was that the Ninth Circuit was creating an exception against a background of Supreme Court opinions that had not recognized such exceptions in similar circumstances. Moreover, the reasoning the Ninth Circuit used to create such an exception seems inconsistent with the Supreme Court’s reasoning. If a court is going to cut against Supreme Court precedents, it should be the Supreme Court. The duty of lower courts is to look at Supreme Court precedents as authoritative (and those from other courts as persuasive) in determining what the law should be.
I’m also puzzled by your statement that “In fact, there is reasonable debate on whether the First Amendment covers commercial advertising at all.” As a matter of positive law, this is not correct. The Supreme Court has repeatedly held that advertising is entitled to First Amendment protection — there’s no debate. Likewise, the point of my post was to talk about the Ninth Circuit decision in positive terms, rather than normative ones (though normatively I oppose both prohibitions on prostitution and prohibitions on advertising prostitution).
Finally, on the two examples you give, the situation for each is more complicated than a court inventing them. To give the short summaries, my understanding is that qualified immunity was a concept that existed at common law for tort actions that was then applied to Section 1983, which created an action for constitutional torts. Thus, the courts that first considered qualified immunity under 1983 had precedents for that decision. Similarly, my understanding of the baseball exemption is that it originated in Lochner-era decisions that had a more limited view of commerce that could be regulated by federal law than what we have today. The decision was consistent with that understanding of commerce, though how it survived after 1937 is an oddity … But in both cases, those decisions have more grounding than an unprecedented prostitution exception created by the Ninth Circuit against a backdrop of inconsistent S Ct decisions.
March 11, 2010, 11:06 pmAllan Walstad says:
John Herbison says:
A service, not a commodity. Anyway, futures markets arise where there is uncertainty in future supply or demand–so no, probably not ;-)
March 11, 2010, 11:26 pmreadery says:
I disagreed with the Supreme Court’s ruling that Puerto Rico couldn’t legalize gambling but ban gambling advertising, but that seems to be the starting point of analysis. Given that starting point, it seems to me that Nevada’s ban might be upholdable under obscenity or obscenity-penumbra ‘secondary effects’ precedents. States have long been able to ban obscenity while legalizing fornication, and the Court’s precedents have long been clear that sexual matters represent a special, sui generis area of First Amendment jurisprudence.
Under the Roth v. United States ‘original intent’ formulation of obscenity, there’s little doubt that many states would have considered prostitution advertising obscene, and a number of states banned prostitution publicity during the 19th century even while they quietly let prostitution itself be legal.
Given this precedent, and the fact that prostitution advertising remains banned in most states (perhaps all but Rhode Island) so that there’s no community consensus of acceptance, it’s not at all clear to me that such laws would be unconstitutional today.
March 12, 2010, 12:07 amRicardo says:
The Thai police make far too much money out of the business to force the owners to stop advertising.
As for Nevada, my understanding is that there is a nice political equilibrium at the moment. Prostitution is legal in Nevada as long as the brothels are located in out-of-the-way rural areas in non-descript buildings and don’t openly advertise their existence. Upsetting this peaceful equilibrium by allowing brothels to advertise might antagonize the voters to recriminalize prostitution.
I understand that’s a pragmatic rather than Constitutional argument, but it will certainly come up if we ever reach the point where there is serious debate about whether or not to legalize marijuana. People are going to be more tolerant of prostitution and drugs if they are kept out of sight and out of mind. We’d be better off permitting these political compromises in my opinion. The oldest profession in the world does not really need advertising.
March 12, 2010, 12:19 amJohn Herbison says:
I am puzzled. What on earth are “obscenity-penumbra ‘secondary effects’ precedents”?
The law of obscenity deals with determining whether a particular printed or pictorial work is or is not First Amendment protected. The so-called “secondary effects” doctrine deals with whether a regulation of protected expression, which on its face appears to be content-based, can be justified without regard to content. And a penumbra is a different kettle of fish entirely–the metaphor was used by Justice Douglas in Griswold v. Connecticut and partakes more of substantive due process than anything else.
March 12, 2010, 12:25 amreadery says:
The line of cases beginning with City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) and including Erie v. Pap’s A. M., 529 U.S. 277 (2000).
March 12, 2010, 1:08 amJohn Herbison says:
I am familiar with Renton and Pap’s. What I don’t understand is the juxtaposition of obscenity law, which deals with what expression is or is not protected, with the “secondary effects” cases, which (disingenously) purport to involve time, place and manner regulations of protected expression.
March 12, 2010, 1:15 amreadery says:
As a practical matter it does appear that the Court, and the Constitution, treat sexual matters differently from other matters for First Amendment purposes. While in theory the “secondary effects” cases could apply to any expression with secondary effects, in reality there is no “secondary effects” jurisprudence on depictions of, say, gambling or smoking or alcohol in anything like the way there is on depictions of sex. There’s a question about crush videos, but perhaps that’s because they are perceived as involving a sexual fetish rather than just animal cruelty.
Given that under Erie the “secondary effects” concept can support a complete ban rather than just time, place, and manner restrictions, one way of looking at the “secondary effects” jurisprudence is as creating an intermediate category of semi-obscenity which gets more First Amendment protection than full obscenity, but less than ordinary speech.
March 12, 2010, 1:27 amLior says:
Calderon: I agree that having a “prostitution exception” to the First Amendment would contradict existing Supreme Court precedent. I also agree that the Supreme Court has decided the issue of protection for commercial advertising (rightly, in my opinion). But note that Supreme Court decisions only “ends the debate” for lower courts; they don’t end the actual debate that you and I can have.
What bothered me was your objection to courts creating exceptions without citing a precedent for these exceptions — what I jokingly called the “turtles all the way down” approach to the law. I read you to mean that since this court didn’t cite any prior “prostitution exception” it shouldn’t be able to create one. But this argument would preclude any new exceptions ever being created. Assume, for example, that the Supreme Court would reverse itself about commercial speech, leaving the door open for regulation of such speech in principle. There would still be no citations for a “prostitution exception” before the first court recognized it, but by your argument no court would be able to recognize it for lack of prior citation.
March 12, 2010, 2:40 amJoeSixpack says:
You forgot the old adage that when a woman tells you how many sexual partners she has had, you should always multiply that number by three to come up with the true number (for men, you divide by three).
March 12, 2010, 12:14 pmwhiskey says:
under Citizen’s United: Keep Prostitution Legal by supporting your local brothel, brought to you by BROTHEL NAME, ADDRESS
March 12, 2010, 12:40 pmwlpeak says:
Agreed.
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March 12, 2010, 3:12 pmCalderon says:
Lior — I think we’re on the same page. My sentence about there being no precedent for the decision was meant to be read in conjunction with the following sentence about a lack of appropriate reasoning. That is, the Ninth Circuit did not support its decision with precedent, did not support its decision with some reasoning or analogies from precedent, and the “pure” reasoning it offered is difficult to square with (or to be less charitable, simply contradicts) the reasoning of various Supreme Court cases.
readery — I don’t think the SC’s decision on advertising of gambling in Puerto Rico (Posadas de Puerto Rico Associates, dba Condado Holiday Inn v. Tourism Company of Puerto Rico) is the starting point. That case has been severely undercut by subsequent decisions such as 44 Liquormart, which struck down restrictions on commercial advertising of alcohol even though under the 21st amendment states clearly have the power to prohibit the use of alcohol within their borders. Indeed, even the Ninth Circuit decisions under discussion here rejects the use of Posadas because of how badly it’s been undermined by subsequent decisions.
March 12, 2010, 4:36 pmBecky says:
We’ve come a long way baby. And now we are just a short hop from this being considered a valid job opportunity that must be accepted before being eligible for unemployment benefits? Nothing says civilized society like promoting the use of women for sex. Maybe you just think it is going to be someone else’s daughter that will wind up being recruited to lay under all the fat slobs too lame to get a date.
March 12, 2010, 5:17 pmJohn A says:
Precedent? Search “community standard” rulings.
Which are being used in efforts to shut down Internet access, similar in effect to some other countries which ban things we take for granted such as TV shows showing people kissing non-relatives.
Heck, Australia has proposed, if not passed, legislation that all media outlets, even foreign. must pay a fee to be accessible: do the pols really think the Klamath Falls Gazette will pay up? Will they shut down an ISP that allows access?
March 12, 2010, 6:32 pmDavid Perry says:
To be precise, antitrust doctrine at the time did not consider entities which had locations only in one state to be in interstate commerce, even if they sent people to other states to do business. As the opinion states, law firms sending out attorneys to argue cases in other states weren’t considered in interstate commerce if they had offices only in one state; same for Chatauqua sending lecturers outside of New York.
March 12, 2010, 7:26 pmAs I recall, this doctrine started to fall apart literally within about six months after the baseball decision. The exemption has survived because a) MLB has done a good job of defusing every serious expansion threat since the Federal League; b) In Flood v. Kuhn (if The Brethren is to be believed), MLB talked Blackmun into believing that baseball would die without the exemption, and White voted against Flood because he had been a football player himself and thought modern athletes were prima donnas (eye roll); and c) since Flood, the players have kicked the owners’ butts sufficiently that they haven’t felt the need to litigate.
Ricardo says:
In that survey, the median answer for women was 4 while the median answer for men was 7. I was surprised the difference was not larger — the surveyors were very good about eliciting truthful answers from respondents. So let’s split the difference and say the true answer for women is 5 or 6.
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March 14, 2010, 8:17 amreadery says:
The difficulty with 44 Liquormart as the analogy is with viewing prostitution speech as commercial speech. The court’s jurisprudence regards certain things as “inherently” commercial and other things as “inherently” non-commercial based on the Justice’s view of their nature rather than by any particular use people happen to make of them. Since the Court sees marijuana as inherently commercial in its nature, it can be regulated no matter how privately or non-commercial the particular use people make of it may happen to be, since non-commercial use fungibly subsitutes for commercial use.
But the Court doesn’t see sex this way. Rather, it sees it as something inherently non-commercial no matter how how commercial the use people may happen to make of it. The Court has decided that marriage and spousal sex cannot be regulated by the federal government as a fungible substitute for commercial sex in the same way that non-commercially produced marijuana can be regulated as a fungible substitute for commercial marijxuana, because it regards sex as having a different nature from marijuana, and is being non-commercial by its very nature. It regards marriage (or at least non-commercial activity) as the ‘natural’ way to do sex, with commercial sex the exception which has to be looked at in terms of how it affects the ‘natural’ behavior, while it regards interstate commerce as the ‘natural’ domain of marijuana, with private non-commercial activity similarly regarded in terms of its affect on the ‘natural’ activity. Under the inherent-nature-of-thing approach, it’s quitel logical that caselaw about commercial activity simply never applies to “inherently” non-commerical activity, just as per Raich non-commercial caselaw simply never applies to “inherently” commercial activity. Under current caselaw, it simply doesn’t matter what the particular circumstances of a thing’s use in a particular case may be. What matters is the judiciary’s beliefs about the inherent nature of the thing.
I don’t agree with this view. In my view, the decision to classify one thing one way and the other the other way is a moral decision, and should be recognized as such. Both could and have long been done both ways. There have societies where sex has been mostly commercial, just as there have been societies where mind-altering drugs have played primarily religous or other non-commercial roles rather than economic ones.
Indeed, there is a certain quaintness and pre-modern naivite in the court’s tendency to look at the role it would prefer things play in our society as being inherent in the nature of the thing itself rather than as being a social construct reflecting a social role that could be otherwise. The certainty justices impart when they claim their views reflect the inherent nature of things, whether on the nature of marriage or the nature of marijuana, reflects an immediate connection with their own emotions which, while understandable and part of human nature, reflects a lack of self-reflection and an unwillingness to consider the possibility that others may have different emotions, and also that their own emotions are to some degree a social construct reflecting previous moral choices,
I certainly believe that societies can and sometimes do choose to change, and may perhaps sometimes need to change, their moral foundations, to organize people’s emotions differently to serve different purposes and needs. We have to be honest about the fact our emotions and our social constructs have a sort of chicken-and-egg roll — they affect each other in ways hard to separate out.
But how that change happens matters. The Court has, through its commerce jurisprudence every bit as much as its privacy jurisprudence, taken on itself the task of deciding on what the fundamental emotional make-up of our society ought to be, with the justices essentially reifying their private emotions and treating them as objectively true, and imposintgthem on society. Religious prophets can do this, but judges in a secular society should not be permitted to believe that they alone are capable of “I know it when I see it”, or even that their private revelations have more inherent value than those of others. I believe the role they have taken on is an illegitimate role, and their tendency to decide cases based on their feelings about the inherent nature of things is, when not authorized by society as a whole, a usurpation of power.
Societies may well need some shared emotions to function. This is not necessariy a rational need, but it may be an irrational need in the same way food and health care are irrational needs. It may well not be rational that people should have bodies or that we should need food to live or that we should get sick and die, just as it may make no sense to us that the earth should go around the sun rather than the other way around. We live in a world where empirical evidence often shows that the world we observe doesn’t conform to the way our intellect, deducing from abstract principles or beliefs, concludes it ought to. This is particularly true when we deal with our own nature. Our nature is in part irrational. To the extent that, by requiring laws to be “rational”, we forbid laws which attempt to take the irrational aspects of our nature into account, we are handicapping ourselves just as much as if we prohibited laws that take into account the earth’s orbit around the sun on grounds that rationally the sun ought to orbit around the earth. Ultimately a society unwilling to deal with the world as it is, which will accept only views conforming to fixed principles and shuts the door on evidence that says otherwise, risks perishing if those principles turn out to be too out of alignment with the situation on the ground.
Human societies may need a morality to function. They may need to be organized in ways that tend to reinforce and create shared emotions about certain particular views, such as that marijuana growing ought to be a commercial activity or that sex ought to be a non-commercial activity. In my, view, however, it is not the role of the judiciary to decide or impose what that morality ought to be. That should be the job of legislatures and framers in the first instance. Changing morality is never a certain or sure business. It may seem that continuing the dam in the desert or the elephant whistle in repair is a rediculous waste of time and we ought to abolish the relics forthwith, but we could always get that thousand-year flood or elephant charge. Holding on to practices that once kept us alive but now seem nothing more than a drain will annoy but won’t destroy us, but getting rid of things we may find we need could seal our doom and whipe us out entirely. It’s not nearly as easy a decision as it may seem, and the truth is, have no ability to see the future, we can never know for sure. Yet societies have to make these decisions all the time. In my view, these decisions are always legislative decisions and they are always rational either way. People may feel certain, but feeling that it’s so doesn’t make it so. One thinks one knows it when one sees it. One feels one knows it when one sees it. One feels really, really, really strongly one knows it when one sees it. But it may turn out one actually doesn’t. Just feeling or believing that something is so doesn’t make so. And this is true even for Supreme Court Justices.
Nonetheless, under the Court’s jurisprudence as it is (rather than as I might think it ought to be), commercialness is to be decided by things’ inherent nature, and sex is regarded as having an inherently a non-commercial nature. Given this, it must follow that the commercial-speech line of cases simply does not apply to speech about sex, however commercially done in any particular instance, just as because marijuana is “inherently” commercial, commercial jurisprudence always applies to marijuana however non-commercial a role it may have in any particular instance.
Given all this, the 9th Circuit was likely quite right to consider commercial sex in terms of its affects on non-commercial sexual activity. In doing so, it is simply applying the logical analog of Raich v. Ashcroft, where if the court determines that activity is inherently commercial it can uphold regulation of particular non-commercial instances based on their effects on commerce. Here, given that the activity is “inherently” non-commercial, it seems logical that states could similarly regulate commercial activity based on its effects on non-commercial uses.
And if we accept that the correct category is sex and that it is “inherently” non-commercial, it follows that the commercial-speech cases can never apply to inherently non-commercial activity however commercial-seeming the particular use. Since sex speech also has its own sui generis line of First Amendment jurisprudence involving both obscenity and “secondary effects” cases which give the state more regulatory powers in non-sexual speech matters, it seems logical that that line of cases applies.
March 14, 2010, 3:24 pmreadery says:
In my view, the commercial-non-commercial dichotomy should be based on the particular use of a thing in the case at hand rather than a moral belief about its inherent nature. Commercial sex is an is example of the fact that everything potentially can be used commercially or non-commercially. Nothing is inherently commercial or non-commercial: a decision to treat it either way is a choice, either a private or a social one.
This is not, however, the view of the Court’s jurisprudence.
It should be noted that the Mann Act’s commerce clause nexis is based on interstate travel alone. It is written to prohibit a certain kind of interstate travel, not a certian kind of sex. What the act prohibits doesn’t depend on whether sex occurring during that travel is for pay or not.
March 14, 2010, 3:34 pmJohn Herbison says:
Well, Chief Justice Marshall did opine in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189, 6 L.Ed.23, 77 (1824), that “Commerce, undoubtedly, is traffic, but it is something more: it is intercourse.” ;-)
March 14, 2010, 4:29 pmDrib says:
This.
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July 9, 2010, 1:46 am