The Ninth Circuit recently ruled that there is no constitutional right for a private citizen to have sexual relations with prostitute. Erotic Serv. Provider Legal Educ. & Research Proj. v. Gascon, 880 F.3d 450 (9th Cir. 2018).
I hope you were sitting down for that bombshell.
Erotic Service Providers Legal Education and Research Project (“ESP”) consists of “three former ‘erotic service providers’ who wish to perform sex for hire, and a potential client who” wants to hire them. 880 F.3d at 454. ESP claimed that California Penal Code § 647(b), which criminalizes prostitution, violates (1) the Fourteenth Amendment substantive due process right to sexual privacy, (2) freedom of association under the First or Fourteenth Amendment, (3) the Fourteenth Amendment substantive due process right to earn a living, and (4) the First Amendment freedom of speech. Almost all of ESP’s claims were based upon the United States Supreme Court’s decision in Lawrence v. Texas, 539 U.S. 558 (2003). The Ninth Circuit completely disagreed with ESP and its interpretation of Lawrence.
Here’s what you need to know:
Once Upon a Time, People Kept Suing and Losing For the Right to Hire Prostitutes
It should come as no surprise that the question of whether we have a constitutional right to hire prostitutes has been heavily litigated in our nation’s history. Prostitution is, after all, colloquially referred to as the world’s oldest profession.
In 1988, the Ninth Circuit addressed and rejected the argument that the freedoms of association guaranteed by the First and Fourteenth Amendments protected anyone’s right to hire an escort. IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988). IDK, Inc. was an escort service based out of Las Vegas that argued Clark County’s regulations governing the licensing and operations of escort companies violated it and its clients’ First and Fourteenth Amendment rights to association. Id. at 1187.
The Fourteenth Amendment of the United States Constitution protects the right to form “intimate associations.” Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). The traditionally protected forms of “intimate associations” have been defined as “highly personal relationships,” and “those that attend the creation and sustenance of a family.” Id. at 618-19.
In IDK, the Ninth Circuit rejected the argument that the relationship between an escort and a client was the type of “highly personal relationship” traditionally protected by the Fourteenth Amendment. 836 F.2d at 1193. It reasoned:
The relationship between escort and client possesses few, if any, of the aspects of intimate association. It lasts for a short period and only as long as the client willing to pay the fee. Although a client may have some choice as to the person he or she wishes as a companion, the escort must accompany whomever the employer selects. Escorts and their clients do not claim to be involved in procreation, raising and educating children, cohabitation with relatives, or the other activities of family life. An escort may be involved with a large number of clients. While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening or even a weekend is sufficient time to develop deep attachments or commitments.
The Ninth Circuit also rejected the argument that the relationship between an escort and a client is protected by the First Amendment’s freedom of “expressive association.” “Expressive association” generally protects activities like protests, assemblies, and any other gathering aimed at promoting religious, social or political speech. Roberts, 468 U.S. at 622.
The Ninth Circuit found that there was no evidence that escort services include “expression [as] a significant or necessary component of their activities.” Id. at 1195. It reasoned that escort companies don’t advertise their employees’ skills in conversation or community service; therefore, it assumed “that clients select their companions on the basis of other criteria.” Id. Plus, “[i]f a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so. The escort services simply do not care what the couples talk about or whether they talk at all.” Id. at 1196. Accordingly, the Ninth Circuit rejected IDK’s argument that it had a constitutional right to offer escort services under the First and Fourteenth Amendment’s freedom of association.
Two years after IDK, the Movie “Pretty Woman” Was Released.
It didn’t change anything.
It just made Julia Roberts even more famous.
But Then Along Came Lawrence v. Texas
In 2003, the landscape of intimate association law changed when the United States Supreme Court issued its opinion in Lawrence v. Texas. If you are unfamiliar with Lawrence, it is one of the landmark cases in gay rights.
Lawrence challenged the validity of Texas statute that criminalized certain types of sexual activity between members of the same sex. 539 U.S. at 563. Speaking for the majority of the Court, Justice Kennedy struck down the Texas statute as unconstitutional under the freedom of association guaranteed by the Due Process Clause of the Fourteenth Amendment. He reasoned that anti-homosexual statutes “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals,” and “[t]he liberty protected by the Constitution allows homosexual persons the right to make this choice.” Id. at 567. In reaching his holding, Justice Kennedy held:
The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
Id. at 578.
12 years after Lawrence, Justice Kennedy again drew upon this reasoning and ruled that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty.” Obergefell v. Hodges, 135 S. Ct. 2584, 2604-2605 (2015).
One thing that Lawrence did not address is the right to hire a prostitute. To the contrary, Justice Kennedy specifically remarked that Lawrence did “not involve public conduct or prostitution.” 539 U.S. at 578.
Enter ESP and A Shocking Number of Other Lawsuits
Following Lawrence, people began suing all over the country for their right to “associate” with prostitutes by paying them to engage in private sexual activity. And the courts, all over the country, declined to interpret Lawrence as protecting prostitution since Lawrence expressly stated that its holding did not involve claims related to prostitution. See, e.g., State v. Thomas, 891 So. 2d 1233 (La. 2005); United States v. Thompson, 458 F. Supp.2d 730 (N.D. Ind. 2006); State v. Romano, 155 P.3d 1102 (Haw. 2007); United States v. Palfrey, 499 F. Supp. 2d 34 (D.D.C. 2007); Lowe v. Swanson, 639 F. Supp. 2d 857 (N.D. Ohio 2009); Doe v. Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012).
In 2015, ESP joined in the fun and filed its lawsuit claiming that California’s anti-prostitution law violated the Due Process Clause of the Fourteenth Amendment, the Freedom of Association guaranteed by the Fourteenth Amendment, the constitutional right to earn a living, and First Amendment freedom of speech. 880 F.3d 450. The Ninth Circuit disagreed.
ESP relied heavily on Lawrence to assert its Fourteenth Amendment claims. It argued that Lawrence should be interpreted as guaranteeing “consenting adults a fundamental liberty interest to engage in private sexual activity,” which would prohibit a state from outlawing commercial exchanges of such private sexual activity. Id. at 455-56. It also argued that Lawrence overruled IDK. Id. at 456.
The Ninth Circuit rejected ESP’s argument that consenting adults have a fundamental liberty interest to have sex with a prostitute. The evidence made it clear that California has a strong, legitimate reason for criminalizing prostitution because: (1) prostitution is linked to sex trafficking; (2) “prostitution creates a climate conducive to violence against women;” (3) there is “a substantial link between prostitution and illegal drug use;” and (4) “prostitution is linked to the transmission of AIDS and other sexual transmitted diseases.” Id. at 458.
The Ninth Circuit also rejected ESP’s argument that the freedom of intimate association guaranteed by the Due Process Clause extends to commercial relationships with prostitutes. Finding that Lawrence did not overrule IDK, the Ninth Circuit applied IDK to reject this claim. Id. at 458-59.
Next, the Ninth Circuit rejected ESP’s argument that California’s anti-prostitution laws violate the Fourteenth Amendment’s right to earn a living. Because Lawrence specifically stated it did not encompass prostitution, ESP failed to provide any law which supported a protected employment right in prostitution. Since California’s laws applied to equally anyone and everyone, the law withstood constitutional scrutiny. Id. at 459.
Finally, the Ninth Circuit rejected ESP’s claim that the solicitation of commercial sex is protected commercial speech under the First Amendment. The First Amendment has never protected “commercially motivated speech that involved unlawful activity.” Id. at 460.
Why ESP Matters to the 98% of the Population That Doesn’t Solicit Prostitutes
The evolution of our constitutional right of intimate association is a fascinating one in our nation’s history. It is the basis upon which women have been guaranteed the right to use birth control and to obtain abortions. Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973). As you read above, it is the basis upon which same sex relationships and marriage have been protected. And, as ESP demonstrates, it is probably going to continue being the basis on which people advocate for legalization of commercial sex. Whether that will happen, I do not know. But, as Justice Kennedy observed: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” Lawrence, 539 U.S. at 579.