Princess Sea Industries, Inc. v. State, Clark County, 12252

Citation635 P.2d 281,97 Nev. 534
Decision Date28 October 1981
Docket NumberNo. 12252,12252
Parties, 7 Media L. Rep. 2474 PRINCESS SEA INDUSTRIES, INC., Mead Publishing, Inc., d/b/a Las Vegas Panarama; and Galaxy Composition, Inc., d/b/a Las Vegas Mirror, Appellants, v. STATE of Nevada, CLARK COUNTY, a political subdivision of the State of Nevada, Board of Clark County Commissioners, Robert H. Broadbent, Jack R. Petitti, Thalia Dondero, R. J. Ronzone, Manuel Cortez, Samuel Bowler, and David Canter, constituting the members of said Board; Robert Miller, District Attorney, Clark County, Nevada, Richard Bryan, Attorney General, State of Nevada, and John McCarthy, Sheriff of Clark County, Nevada, Respondents.
CourtSupreme Court of Nevada
OPINION

MOWBRAY, Justice:

Appellants, plaintiffs below, sought to have Assembly Bill 141, 1979 Nev.Stats., declared unconstitutional, and to obtain an injunction against enforcement of its provisions. The district court denied the relief requested. We affirm its judgment.

THE FACTS

The appellants include the owner of a legal Nye County brothel, and two newspaper publishing concerns which have published and are willing to publish advertisements concerning the brothel. The legislation in question purports to prohibit advertising of any house of prostitution: "Anywhere in any county, city or town where prostitution is prohibited by local ordinance or where the licensing of a house of prostitution is prohibited by state statute." The enactment also undertakes to punish: "Any person, company, association or corporation who knowingly allows any owner, operator, agent or employee of a house of prostitution, or anyone acting on behalf of any such person, to advertise a house of prostitution in his place of business ..." Appellants have challenged these legislative provisions, contending that advertisements they wish to publish are commercial speech protected by the First Amendment to the United States Constitution.

THE CONSTITUTIONALITY OF THE LEGISLATION

NRS 201.430 and 201.440, as amended, do prohibit a variety of commercial speech, i. e., advertisements containing information concerning houses of prostitution, in certain areas within the State of Nevada. 1 This Court's task is to determine whether the quoted legislative proscriptions must be declared unconstitutional, pursuant to principles heretofore articulated by the United States Supreme Court.

Expression concerning purely commercial transactions may fall within the ambit of the First Amendment's protection. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). Still, the United States Supreme Court recognizes a " 'commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Id. at 455-56, 98 S.Ct. at 1918-19. Accordingly, commercial speech is afforded only, "a limited measure of protection commensurate with its subordinate position in the scale of First Amendment values." Furthermore, "modes of regulation that might be impermissible in the realm of non-commercial expression" are permitted. Id.

As this Court has said repeatedly, an "act of the legislature is presumed to be constitutional and should be so declared unless it appears to be clearly in contravention of constitutional principles." State ex rel. Tidvall v. District Court, 91 Nev. 520, 526, 539 P.2d 456 (1975). In cases of doubt, every possible presumption and intendment will be made in favor of constitutionality. "Courts will interfere only in cases of clear and unquestioned violation of fundamental rights." Id., 91 Nev. at 526-527, 539 P.2d at 460; see also Anthony v. State of Nevada, 94 Nev. 337, 341, 580 P.2d 939 (1978); Damus v. County of Clark, 93 Nev. 512, 516, 569 P.2d 933 (1977); City of Las Vegas v. Ackerman, 85 Nev. 493, 499, 457 P.2d 525 (1969). The issue before us, then, is whether Assembly Bill 141 clearly contravenes constitutional principles heretofore established as to commercial speech.

Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), is distinctly the Supreme Court case closest to the instant one on its facts. Still, that precedent is readily distinguishable. Bigelow involved an effort to bar advertising of a clinic offering legal abortions, i. e., a medical service over which a state government has but narrowly circumscribed power. See, e. g., Bellotti v. Baird, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844 (1976); Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Moreover, in Bigelow the high court explicitly stated that it was not deciding, "the precise extent to which the First Amendment permits regulation of advertising that is related to activities the State may legitimately regulate or even prohibit." 421 U.S. at 825, 95 S.Ct. at 2234.

Prostitution is an activity which the State of Nevada may choose either to regulate or to prohibit entirely. See NRS 244.345; see also Nye County v. Plankinton, 94 Nev. 739, 587 P.2d 421 (1978). Thus, at this time, absent further guidance from the Supreme Court, it appears neither necessary nor wise for this Court to construe either Bigelow or other commercial speech holdings as providing constitutional protection to advertising of prostitution. Cf. St. Pierre v. State, 92 Nev. 546, 548, 554 P.2d 1126 (1976).

In sum, the legislative enactment in question does not clearly contravene constitutional principles as thus far articulated by the United States Supreme Court. Other constitutional challenges are unmeritorious and require no discussion.

GUNDERSON, C. J., BATJER, J., and BEKO, 2 District Judge, concur.

MANOUKIAN, Justice, concurring:

I concur in the result. However, I believe that those in the majority fail to sufficiently address the important First Amendment issue of this appeal. This Court has not had occasion to decide a "pure" First Amendment question since our holding in Viale v. Foley, 76 Nev. 149, 350 P.2d 721 (1960). In light of the many recent United States Supreme Court holdings bearing on this vital question, it is incumbent on this Court to re-examine and fully discuss the First Amendment when it is dispositive of the case at hand.

The primary question presented and the sole issue confronted by my brethren, is whether NRS 201.430 violates the First and Fourteenth Amendments because it substantially bans advertising by a brothel in certain public areas and anywhere in counties where prostitution is illegal. Additional issues raised for our consideration are: whether NRS 201.430 constitutes a taking of property without due process of law; and whether the proscriptions of NRS 201.430 are unconstitutionally vague and overbroad.

Princess Sea Industries, Inc., a Nevada corporation, (hereinafter Princess Sea) is the owner and operator of "The Chicken Ranch" brothel in Nye County, Nevada, situated approximately 65 miles northwest of Las Vegas, located in Clark County. The brothel appears to have complied fully with all licensing and regulatory requirements applicable to it by reason of its location in Nye County. Mead Publishing, Inc., d/b/a Las Vegas Panorama, (hereinafter Mead) and Galaxy Composition, Inc., d/b/a Las Vegas Mirror, (hereinafter Galaxy) are in the newspaper business, and there is evidence that Galaxy has in the past published advertising for houses of prostitution, including Princess Sea. The distribution and content of the papers particularly focus on the tourist industry of Clark County. Clark County has a population of more than 250,000 people; therefore, prostitution is unlawful according to state statute, NRS 244.345(8). Additionally, a Clark County ordinance proscribes prostitution and solicitation for purposes of prostitution. The record reflects that a substantial amount of the business of southern Nevada brothels is derived from Clark County.

In 1979, the state legislature enacted Assembly Bill No. 141, amending NRS 201.430 and NRS 201.440. The amendment limits commercial advertising of prostitution to areas of the state where prostitution may be permitted and proscribes it entirely in any county, city or town where prostitution is prohibited by local ordinance or state statute. 1 Thereafter, plaintiff-appellants sought declaratory and injunctive relief from enforcement of the amended statute. These three cases were consolidated and a hearing for injunction was held. The trial court denied the request for injunctive relief and declared the legislation constitutional.

1. First Amendment Rights

Appellants contend that the advertising regulation scheme of the amended statutes violates their First Amendment rights to provide a "free flow of commercial information." Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 764, 96 S.Ct. 1817, 1827, 48 L.Ed.2d 346 (1976). Although Princess Sea is identified as the source of the advertisement, and Mead and Galaxy as past and would-be future carriers of the ads, I perceive no significant difference among them in terms of First Amendment protection. If the speech qualifies for protection under the First Amendment, as made applicable to the states through the due process clause of the Fourteenth Amendment (see Bigelow v. Virginia, 421 U.S. 809, 811, ...

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