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You Do Not Have A Constitutional Right to Hire a Prostitute (Duh)

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.

City of Berkeley: “Your Cell Phone Might Kill You.”

The City of Berkeley wants us all to know that our cell phones might kill us.  It is very concerned about it.  In fact, it is so concerned that it enacted an ordinance requiring cell phone retailers to provide customers with a notice informing them of the health risks posed by cell phone use.

CTIA, a cell phone trade association, sued Berkeley and argued the required disclosure violates cell phone retailer’s First Amendment rights.   The Ninth Circuit disagreed, and, for the first time, decided that the government can require a private company to make specific statements to consumers if the required statements are related to a substantial government interest and are purely factual.

Will your cell phone kill you?  Can the government really tell you what you have to say?  Here’s what you need to know.

Apparently, Cell Phones are Radioactive

Apparently, cell phone use exposes us all to radio-frequency radiation (“RF”). In 1996, the FCC issued regulations limiting the amounts of RF that a cell phone can expose a consumer to.   61 Fed. Reg. 41006.  These regulations imposed limits based upon recommendations from the Environmental Protection Agency, the FDA, and various other federal agencies.

RF sounds scary as AF, but there has been no study conclusively proving that our exposure to RF from cellular devices is harmful.  Despite this fact, the FCC still adopted the above regulation in 1996, and refused to modify it to exclude cell phones in 2013.   The FCC’s approach has been “better safe than sorry” when it comes to cell phones and RF exposure.

Berkeley Thinks RF is Scary AF

In May 2015, Berkeley enacted an ordinance which requires cell phone retailers to issue a notice to all cell phone consumers that includes this language:

To assure safety, the Federal Government requires that cell phones meet radio-frequency (RF) exposure guidelines. If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF radiation.  Refer to the instructions in your phone or user manual for information on how to use your phone safely.

Berkeley Mun. Code. 9.96.030(A) (2015).

CTIA was not happy and sued Berkeley for violating the First Amendment rights of cell phone retailers.   CTIA v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017).  You probably know about freedom of speech under the First Amendment.  What you may not know is that commercial speech is treated differently than personal speech.

Commercial Speech is Treated Differently Than Personal Speech Under the First Amendment

Although the First Amendment guarantees us all the right to free speech, that right has limits.  One area in which speech is frequently regulated (i.e., not truly “free”) is “commercial speech.”  Commercial speech is speech that is solely related to “economic interests.”   Central Hudson Gas & Elec. Co. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).

Commercial speech can be regulated in two ways.  One, the government can try to tell retailers what they cannot say.  When that happens, the government does not violate the First Amendment if the restriction is (1) related to a substantial government interest, (2) directly promotes that interest, and (3) is only as restrictive as necessary.  Central Hudson, 447 U.S. at 566.

Alternatively, the government can try to tell retailers what they have to say. When the government tries to tell a retailer what they have to say, the government might not violate the First Amendment if (1) the compelled speech is related to a substantial government interest, and (2) requires disclosure of purely factual information.   Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 650-51, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985).

There is a Bit of a Debate About When the Government Can Tell You WHAT You HAVE to Say

Zauderer was a lawsuit in which the U.S. Supreme Court addressed the issue of what attorneys should be required to say to their clients where the attorney’s prior statements deceived clients.  471 U.S. at 650-51.  The Court held that the government could require attorneys to make disclaimers because the disclaimers were (1) related to a substantial government interest (i.e., protecting clients), and (2) were purely factual (i.e., this is what the lawyer is going to do, charge, etc.).  Id.

Since Zauderer, the federal courts have debated whether the test in Zauderer applies to all compelled commercial speech.  Some courts think that the Zauderer test only applies when the compelled commercial speech is intended to prevent deception, and not when a government entity is merely requiring a retailer to disclose facts.

In the Ninth Circuit, Zauderer Applies Even If the Speech is Not Intended to Prevent Deception. 

Faced with CTIA’s challenge to Berkeley’s ordinance, the Ninth Circuit decided that Zauderer applies even when the compelled speech is not intended to prevent consumer deception.  CTIA, 854 F.3d at 1117.  The Ninth Circuit believes that there are many other government interests that can be furthered by compelled commercial speech.  Id.    If the interest is substantial, and the compelled disclosure is purely factual, the government does not violate the First Amendment by compelling commercial speech.  Id.

Applying its version of the Zauderer test to Berkeley’s ordinance, the Ninth Circuit found that CTIA will have a very difficult time proving that the ordinance violates the First Amendment.  Id. at 1118-19.

First, protecting the health and safety of consumers is clearly a substantial government interest.  Although no study has conclusively proven that RF poses a true threat to our health, the FCC apparently believes that it is in the government’s best interest to adopt a better-safe-than-sorry approach.  Berkeley’s ordinance furthers that interest.

Second, the compelled disclosure is purely factual.  Every sentence of it is literally true.  And even if it weren’t, Berkeley specifically allows cell phone retailers to add their own language to the end of the disclosure if they are concerned that it is inflammatory or misleading.

Finally, CTIA was not able to point to any evidence of a Berkeley citizen believing that their cell phone was actually going to kill them because of the notice.

BUT WAIT, There’s More

By trying to tell us that our phones are probably, maybe, possibly going to kill us, Berkeley opened a Pandora’s box of First Amendment law.  The debate in the Ninth Circuit over when and how the government can compel commercial speech will not end with the CTIA lawsuit.

CTIA has now twice sought rehearing of the Ninth Circuit’s decision.  First, it filed a “petition for rehearing,” which is a request for an appellate court to reconsider its ruling because it overlooked facts or misapplied the law.  The Ninth Circuit denied CTIA’s request to reconsider its application of Zauderer. 

Then, CTIA filed a “petition for en banc reconsideration,” which is a request to have 11 Ninth Circuit judges reconsider the decision.  Did I confuse you?  Here’s a quick crash course in how the Ninth Circuit works.  There are 29 Ninth Circuit judges.  Most appeals are heard by 3 judges, who issue the decision.  “En banc” means that 11 judges hear the appeal.

The Ninth Circuit judges declined to grant the petition for en banc consideration.  Judge Wardlaw, who is not one of the judges that rendered the decision applying Zauderer, wanted to grant en banc consideration because she believes that (1) Zauderer should only apply to speech intended to prevent consumer deception, (2) interpreting Zauderer to protect compelled disclosures beyond that narrow category infringes on First Amendment rights, and (3) an en banc Ninth Circuit should consider the issue instead of a 3-judge panel.  CTIA v. City of Berkeley, 873 F.3d 774 (9th Cir. Oct. 11, 2017) (Wardlaw, J., dissenting).   Judge Wardlaw ended her dissent with the affirmation that she is “looking forward to our next compelled disclosure case.”  Id.

Does this mean that the Ninth Circuit’s approach with Zauderer will change?  Only if enough judges agree with Judge Wardlaw.  Otherwise, for now, Berkeley is free to warn us that our cell phones might kill us.

I, for one, appreciate the City of Berkeley’s concern.  I’m still going to ignore the warning and use my phone too much, though.  #priorities