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Bikinis, Coffee and Strippers: Just Another Day in the Ninth Circuit

What do bikinis, coffee and strippers have in common?  Nothing except for the fact that they all play a role in the Ninth Circuit’s opinion in Edge v. City of Everett, 929 P.3d 657(2019).  Edge takes us to Washington, the land of bikini barista coffee stands, where women wear next to nothing (and sometimes nothing) while serving coffee at road side stands.   After the City of Everett enacted ordinances requiring the baristas to wear a few more inches of fabric, several of the baristas complained that the City of Everett had unconstitutionally infringed on their freedom of expression under the First Amendment.  The Ninth Circuit disagreed.

THIS JUST IN: STRIPPING IS PROTECTED BY THE FIRST AMENDMENT

That actually is not just in, but it is new information to me.  Since the 1970’s, SCOTUS has protected stripping as a freedom of expression under the First Amendment. 

The First Amendment is the constitutional amendment that protects “freedom of speech.”  U.S. Const., amd. I.  Although the text of the amendment only refers to “speech,” SCOTUS has long held that the First Amendment’s protections extend to both orally expressed statements and physically “expressive conduct” that is used to communicate something to another person.  Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).

In California v. LaRue, 409 U.S. 109 (1972), SCOTUS applied this logic to uphold California’s legislation barring liquor in strip clubs.  Noting that the First Amendment freedom of expression had been extended to motion pictures and theatre performances, and that stripping was, in some cases, basically a really erotic theatre performance, SCOTUS found that strippers do have some limited First Amendment rights.  Id. But, because California sought to regulate liquor sales rather than the actual um, performance, the California law was upheld.  Id.

In Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981), SCOTUS again noted that nudity does not exclude conduct from the protection of the First Amendment.  Id. In Schad, SCOTUS found that a local ordinance attempting to ban an adult bookstore from allowing a live nude dancer was unconstitutional.  Id.

This does not mean that strippers have a carte blanche right to roam about dancing in the nude.  As SCOTUS explained in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the states still have the right to enact laws limiting when and where public nudity may occur and/or requiring strippers to wear “scant clothing” while dancing.  Id. at 571.  Barnes concerned an Indiana law banning all nudity in strip clubs, but allowing dancers to wear pasties and a g-string.  Id.  Reasoning that states can regulate morality provided that the state’s interpretation of “moral” conduct does not completely prohibit protected expressive conduct, SCOTUS upheld the state law. Id.  Since the dancers could still dance, and since the clothing required gave the audience the basic gist of nudity, the Indiana law was fine. 

These were family establishments after all.  We must have some standards. 

(Kidding. These were actually just strip clubs with no minors allowed). 

BUT, “BIKINI BARISTAS ARE NOT STRIPPERS”

According to the Bikini Baristas, they are not strippers.  Strippers wear little to no clothing in exchange for tips.  Bikini Baristas, in contrast, wear little to no clothing in exchange for tips. 

Wait a minute. 

I think we need to start from the beginning with this one. 

THERE’S CORRUPTION IN THIS COFFEE STANDS

If you are like me, you may not have ever heard of a bikini barista.  Seriously, I’ve learned so much today.  A bikini barista wears a “bikini” while serving coffee at a road side coffee stand. 

In Washington.  Which is not exactly known for balmy weather. 

If that sounds like a recipe for prostitution and trafficking . . . well, it is.  After receiving complaints that the baristas had a pretty fast and loose term for the phrase “bikini” and that patrons observed physical contact with customers occurring, the City of Everett mounted an undercover police investigation.  Edge, 929 F.3d at 660-61.  The police discovered that many of these road side coffee stands were fronts for prostitution and trafficking, that many of the baristas were paid solely in tips and encouraged to wear little or no clothing for larger tips, and that assaults frequently occurred.  Id. at 661. This undercover operation lasted for five years, and after five years, the Everett police were unable to solve the problems the coffee stands presented with the means available to them.  Id. Partially because they discovered that a sheriff deputy was involved in covering up one of the coffee prostitution rings (he’s been convicted, it’s all fine now). 

Anyway, after five years, the Everett police told the City that the bikini baristas were the City’s problem to solve.  And the City responded by, among other things, creating a dress code ordinance for the stands that required the baristas to wear more.  Id. at 662. 

THE BIKINI BARISTAS SUE FOR THEIR RIGHT TO BARE IT ALL

After the City’s enactment of the new dress code ordinance, several bikini baristas (and an owner of a stand) sued the City and argued, among other things, that the City’s dress code ordinance unconstitutionally infringed on their freedom of expression.  According to the baristas, the bikini (or whatever they were or were not wearing) was a symbol of “female empowerment” because it celebrated the female body and made women seem “approachable.”  Id. at 662-64.  The trial court agreed with the bikini baristas that the dress code ordinance might infringe their freedom of expression, and entered an order temporarily enjoining the City from enforcing the dress code while the lawsuit was pending. Id. at 664. The Ninth Circuit disagreed.

The  Ninth Circuit explained that protected freedom of expression requires that the “expressive conduct” convey a specific message for which there is a great likelihood that it will be understood by those to whom it is being conveyed.  Id. at 668. For example, SCOTUS has protected the rights of protestors to wear “F—- the Draft” shirts, Cohen v. California, 403 U.S. 15, 18 (1971), and black arm bands to protest the Vietnam war.  Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06 (1969). 

In contrast to the situations in which SCOTUS has protected freedom of expression, the bikini barista’s claim arose in a commercial setting.  The Ninth Circuit found that “the commercial setting and close proximity to the baristas’ customers makes the difference” because the “baristas’ act of wearing pasties and g-strings in close proximity to paying customers” where the “baristas indisputably solicit tips . .. creates a high likelihood  that the message sent by the baristas’ nearly nonexistent outfits vastly diverges from” the messages of “female empowerment” the baristas claimed to be sending.  Edge, 929 F.3d a 669.  In other words, the message conveyed may have been one of empowerment, but the message received was most likely “give me more money.”  And, given the high rates of prostitution, trafficking and assault found by the City’s police department, the “empowerment” part of the message was clearly lost in translation. Id.

IT MIGHT BE DIFFERENT IF THEY WERE STRIPPERS

Although the Ninth Circuit found that the bikini baristas will have a hard time prevailing on their freedom of expression claim, it did throw them a bone.  To paraphrase the gist of what Judge Christen was hinting at in the opinion:

Hey, bikini baristas, you keep claiming that you are not strippers, and therefore, we cannot find a constitutional basis to protect your claimed freedom of expression.  But if you were to say that you are strippers – you know, those other women who take their clothes off for tips just like you – maybe we could talk. 

Clearly the moral of this story is to claim you are a stripper, even if it subjects your employer to all kinds of zoning violations. 

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.

Id.

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.