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
Princess Sea Industries, Inc. v. State
Gunderson, C. J., and Batjer, J., and Beko, D. J., concur.
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.
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.
No. 12252
October 28, 1981
635 P.2d 281
Smith, Maurer & Cremen, Las Vegas, for Appellant Princess Sea Industries, Inc.; Edward Bernstein, Las Vegas, for Appellants Mead Publishing, Inc. and Galaxy Composition, Inc.
Richard Bryan, Attorney General, Carson City, and Josh Landish, Deputy Attorney General, Las Vegas, for Respondent State of Nevada; Robert Miller, District Attorney, Clark County, and S. Mahlon Edwards, Deputy District Attorney, Las Vegas, for Respondents Clark County, Board of County Commissioners, and Sheriff John McCarthy.
The Governor designated the Honorable William P. Beko, Judge of the Fifth Judicial District Court, to sit in the place of The Honorable Gordon Thompson, Justice. Nev. Const., art. 6, § 4.
OPINION
By the Court,
Mowbray, J.:
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. 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 (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. 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 (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 (1976); Singleton v. Wulff, 428 U.S. 106 (1976); Connecticut v. Menillo, 423 U.S. 9 (1975); Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (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.
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., and Batjer, J., and Beko, D. J., concur.
NRS 201.430(2) details certain specific information sought to be proscribed from distribution to the public, i.e.:
Inclusion in any display, handbill or publication of the address, location or telephone number of a house of prostitution or of identification of a means of transportation to such a house, or of directions telling how to obtain any such information, constitutes prima facie evidence of advertising for the purposes of this section.