Lorillard, Bolger line of cases, and the application of Central Hudson to advertising that may lead to illegal transactions.

This week I have a self-assignment to explore the touchy implications of Posadas v Tourism Co, 478 US 328 (US 1986), http://laws.findlaw.com/us/478/328.html, to advertising escort services. This topic has always been lurking in the background as a potential problem in this industry. If legal casino advertising can be broadly banned, then can advertising that leads to illegal activity be even more broadly curtailed?
Or can only incitement be banned? Ads and reviews do not do that.

Just curious if others have researched this in serious depth and whether there might already be some juicy treatise hot off the press, such as "Developments in the Law - Advertising Escort Services that might Lead to Boinking for Dollars," *** Harv L Rev *** (2002). LOL

I'm off to the Library of Congress to study and learn.
I keep having this nightmare of Justice Scalia saying:

"Advertising and information about escort services are not 'speech' protected by the First Amendment because a  significant proportion of the information leads inexorably to blowjobs, noisy and slurpy ones, that violate local noise control ordinances."

Or the Mad Hatter saying: "Tis not speech, though spoken, nor press though written. Can't be abridged if it's not speech!"


-- Modified on 10/23/2002 2:58:20 PM

-- Modified on 10/23/2002 9:29:19 PM

Seems like potential failure in the first prong of the test, in that the advertising must be for a lawful activity.  Then we get into the issue of legal services (escorting) vs illegal (prostitution), whether the old "fees are time and companionship only" disclaimer has any real legs, etc.  Looks like a string of interesting cases could result...

either. Prosecutors would say that escort ads are thinly disguised offers for illegal activity.
The only clear vote we have is Justice Stevens, and he is 84 albeit healthy. Others are problematical. Breyer and Ginsburg I would count favorably however. There needs to be a Justice-by-Justice study of what persuades them individually in the areas closest to this.

No Justice has ever said that advertising or communications about illegal activity would be protected by the First Amendment, except in the political speech area, where incitement is required of the Brandenburg v Ohio variety. Hmm.

The Edge reasoning is particularly bothersome. It seems to assume that people respond to advertising like robots. Edge allows control of the advertising instead of subsequent conduct.
It banned a Virginia station from advertising the Virginia lottery because people in North Carolina could receive the station. That is a severe restriction on communication.

Boards would be better off with increased discussion of legalization and political issues, and less of inconsequential matters. The Florida LE people seem to think that communications are just part of a conspiracy to violate the prostitution laws.
All the more reason to have boards and other websites hosted offshore.

Central Hudson, says that ads are not entitled to commercial speech protection if they are for unlawful activities.

In Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376 (1973 the ct said "We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes."

The first issue is whether a ban on "escort" advertising would be found over broad or overly vague, since it would apply to legal escort activities that did not involve prostitution.  This would depend on how the law was drafted.

The argument of overbreath would also be raised with respect to whether the government had satisfied the 4th requirement of the Central Hudson test, e.g. did it adopt the "least restrictive" means to advancing its legitimate interest in reducing prostitution.  

One could also argue that the ban would not "materially advance" the government's interest (the 3rd requirement of the Central Hudson test) because it would just drive prostitution to the streets.


BTW the S.Ct. struck down a ban on casino ads in the Greater New Orleans case, and seemed to back off its deference to the government expressed in the Edge case.

BWT2,  I don't think off Shore bds would protect escorts from being prosectuted for placing ads on those bds.

There is much that I agree is accurate in your post, Officer Crawford. I realize now you are not with the FBI. I have a pic of you (below) in your surveillance vehicle disguised as a donut truck. Also the writing would not pass  muster at the Quantico Academy, much less a freshman law school writing class at UW. Citing a 1973 case that has been all but overruled and where only one of the Justices is still alive! Shame! Scalia would mace you! Rehnquist would moon you!

If several US states had legalized prostitution, and if escort advertising were based there, then there might be a better First Amendment claim.

If the Court could be persuaded to apply the Brandenburg v Ohio incitement case today, that too would work. Ads do not incite bbjs without independent intervening causes that you usually study in torts.

If review boards were more educational, informational, and less obvious in discussing plainly illegal activity, with fewer posts on "farting," fisting, and golden showers, then they might have a stronger First Amendment claim in the eyes of stodgy much older Justices not in their sexual primes. The Supreme Court will be the final word on the existence of escort advertising and review boards, like it or not.

However, some US Courts of Appeal have taken judicial notice that escort agencies are thinly disguised fronts for prostitution. Duh. So, the advertising never gets to first base under the First Amendment. Though speech, and spoken, it is not protected speech, said the Mad Hatter, despite the plain language of the First Amendment. You can speak and advertise all you want, but it's not speech in the eyes of Rehnquist, not even close.

Historically, also, the First Amendment should protect speech about illegalities because early political and commercial speech were about overthrowing the British rule of the colonies, and obstructing British restraints on commerce. The speech advocated illegal stuff, such as the Boston Tea Party. That's from the Benjamin Franklin  Schlong biography of recent note.

The First Amendment would be narrow indeed if it only protected that which was currently legal. A state could undercut the First Amendment by declaring something to be a vice, and banning its discussion or advertising. Justice Stevens said that. Some others agreed.

The point of offshore activity is to protect assets from seizure and make it more difficult for persons to invade your privacy.
An offshore server cannot be seized, as were those of TBD.
An offshore bank account cannot be frozen, as were those of TBD. You still pay taxes of course.
Offshore e-mail is also more difficult to access, especially if encrypted to avoid interception by big brother.

The overbreadth doctrine is very subjective and rarely if ever used in commercial speech cases. Nice try, Officer Crawford, my compliments. You should go to law school, and graduate, and practice, since you apparently want to participate in legal analysis.





-- Modified on 10/26/2002 4:48:46 PM

and we can see whether you are "TheLostCollieDog" who failed a simple test of reading a statute or the "Law Librarian" who shows promise that he can read and understand a court opinion.

So to sharpen the question which you were asking in your initial post:

May the government (state or federal) ban "escort" ads such as appear on eros.com (not on a message board) without running afoul of the protection afforded "commercial speech" under the cases we have been discussing?

So give us your reasoning and the key case(s) that support it and I will give you mine.


As a preliminary matter, I think it will be almost impossible to draft a clearly defined statute that bans only "prostitution" ads (and such a ban would clearly be legal).  Such a statute will also have to ban ads for "female companionship" and escort services which would be legal and possibly subject to protection as "commercial speech".

The bigger question is why do we want to spend taxpayer money, public resources, and protracted legislative activity on trying to ban something that is, and properly should be protected in the first place (speech).  This is a big waste of time and money.

Crawford admits that it will be virtually impossible for a statutory definition to legitimately differentiate between a ban on protected advertising of lawful activities (escorting); vs. unlawful (prost).  Any possible statute will be both unconstitutionally vague; and will be subject to arbitrary enforcement in the hands of local officials.

Any possible preclusive statute will only generate litigation; and the first amendment attys will be having a field day.

I think our legislators and public officials should have better things to do with their time (there are serious real crimes that are in need of invest and prosecution).  Here, there are no "criminals" and there are no "victims."

I think L Lib has hit the nail on the head:  how can you say it's not "speech" if it is spoken?