Bushco v. Shurtleff
2013 U.S. App. LEXIS 18694
10th Cir.2013Background
- In 2011 Utah amended its sexual solicitation law, adding § 76-10-1313(1)(c) (lists exposure/touching/masturbation/"acts of lewdness" as proscribed when done with intent to engage in sexual activity for a fee) and § 76-10-1313(2) (allows intent to be inferred from the totality of circumstances).
- Plaintiffs (licensed escort/sexually oriented businesses) sued Utah's Attorney General seeking declaratory and injunctive relief, arguing the new provisions are overbroad, unconstitutionally vague, and violate the First Amendment; both sides moved for summary judgment.
- The district court upheld § 1313(1)(c) but struck § 1313(2) as unconstitutionally vague; both parties appealed.
- On appeal the Tenth Circuit considered (1) whether issue preclusion from an earlier decision (Guinther) bars review, (2) overbreadth/First Amendment challenges, and (3) vagueness challenges to the two subsections.
- The court held issue preclusion did not apply (the earlier statute and the current statute differ in scope and purpose), affirmed constitutionality of § 1313(1)(c), and reversed the district court by holding § 1313(2) is not unconstitutionally vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether issue preclusion (collateral estoppel) applies based on Guinther | Guinther struck similar language; the new statute is a reenactment so preclusion should apply | The statutes differ in text, purpose, and effect; prior decision is not identical | No preclusion: statutes differ in scope and effect; prior issue not identical |
| Whether §1313(1)(c) is facially overbroad under the First Amendment | Provision criminalizes expressive touching/exposure and will chill protected performance and artistic expression | Statute targets conduct tied to intent to engage in paid sexual activity; it narrows reach by mens rea requirement | Not overbroad: intent element limits reach; does not cover a substantial amount of protected speech |
| Whether §1313(1)(c) imposes an unconstitutional incidental burden on speech (O'Brien test) | Amendment is aimed at censoring adult entertainers, not preventing prostitution; not narrowly tailored | Law advances substantial state interest (suppressing prostitution), unrelated to speech suppression, and is no greater than necessary | Passes O’Brien: within state power, furthers important interest, not aimed at suppressing expression, and restriction is appropriately tailored |
| Whether §1313(1)(c) and §1313(2) are unconstitutionally vague | Terms like "masturbation", "any act of lewdness", and "totality of the existing circumstances" are vague and allow arbitrary enforcement | The statute enumerates proscribed acts and contains a scienter requirement; §1313(2) properly instructs factfinder to consider all circumstances when inferring intent | §1313(1)(c) not void for vagueness (plain language + specific intent mitigates vagueness); §1313(2) also not vague — it constrains rather than expands discretion |
Key Cases Cited
- Ward v. Utah, 398 F.3d 1239 (10th Cir.) (facial challenges require exacting analysis; scienter can mitigate vagueness)
- O’Brien v. United States, 391 U.S. 367 (1968) (test for incidental burdens on First Amendment freedoms)
- Guinther v. Wilkinson, 679 F. Supp. 1066 (D. Utah) (prior decision invalidating predecessor statute language as overbroad and vague)
- Hill v. Colorado, 530 U.S. 703 (2000) (void-for-vagueness doctrine; avoid speculative facial challenges)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vague laws may permit arbitrary and discriminatory enforcement)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth doctrine requires showing the statute prohibits a substantial amount of protected speech)
- Kolender v. Lawson, 461 U.S. 352 (1983) (void-for-vagueness principle requiring definite standards)