Erotic Service Provider Legal Education & Research Project v. Gascon
880 F.3d 450
9th Cir.2018Background
- Plaintiffs (Erotic Service Provider Legal, Education & Research Project and individual erotic service providers and a would‑be client) sued California officials under 42 U.S.C. § 1983 seeking declaratory and injunctive relief to invalidate Cal. Penal Code § 647(b), which criminalizes solicitation, agreement to engage in, and engaging in prostitution.
- The complaint asserted facial and as‑applied challenges alleging violations of: (1) Fourteenth Amendment substantive due process (sexual privacy), (2) freedom of intimate/expressive association (First and Fourteenth Amendments), (3) Fourteenth Amendment right to earn a living, and (4) First Amendment freedom of speech (commercial solicitation).
- The State moved to dismiss for failure to state a claim; the district court granted dismissal with prejudice after plaintiffs declined to amend; plaintiffs appealed.
- The Ninth Circuit treated the challenge as facial and reviewed de novo the dismissal under Rule 12(b)(6) standards.
- The panel concluded Lawrence v. Texas did not establish a fundamental right protecting prostitution, applied IDK, Inc. v. Clark County precedent, applied rational‑basis review, and affirmed dismissal on all asserted constitutional grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §647(b) infringes a Fourteenth Amendment liberty interest in private sexual conduct (so as to trigger heightened review) | Lawrence creates a fundamental right for consenting adults to engage in private sexual activity, which should extend to commercial sex and bar criminalization of prostitution | Lawrence did not address prostitution; IDK remains binding; no fundamental right to commercial sex | No fundamental liberty interest for prostitution; IDK controls; rational‑basis review applies |
| Whether §647(b) survives rational‑basis review under due process | Criminalization is not rationally related to legitimate interests (argued by implication) | §647(b) furthers legitimate interests: preventing trafficking, reducing violence/drug use, limiting STDs, and preventing commodification of sex | §647(b) is rationally related to legitimate state interests and survives rational basis review |
| Whether §647(b) violates freedom of intimate or expressive association | Prostitute–client relationship is an associational liberty deserving protection | Relationship is commercial, short‑term, and not the type of intimate association the Constitution protects | No violation; prostitute–client relationship is not a protected intimate association (IDK controlling) |
| Whether §647(b) violates the First Amendment by criminalizing solicitation (commercial speech) | Solicitation is speech; criminalizing it unconstitutionally restricts speech | Solicitation of prostitution is commercial speech about unlawful activity and thus not protected; even under Central Hudson the law is justified and narrowly tailored | Solicitation of prostitution is unprotected because it proposes illegal activity; §647(b) survives Central Hudson analysis |
Key Cases Cited
- Lawrence v. Texas, 539 U.S. 558 (2003) (recognized liberty in certain private intimate conduct but stated the case did not involve prostitution)
- IDK, Inc. v. Clark Cnty., 836 F.2d 1185 (9th Cir. 1988) (holding prostitute–client relationship is not protected by due process as an intimate association)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (test for protection of commercial speech and standards for regulation)
- Heller v. Doe, 509 U.S. 312 (1993) (rational‑basis review principle and burden on challenger to negate conceivable bases)
- Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (statement of rational‑basis review presumption of validity for legislation)
- FCC v. Beach Communications, 508 U.S. 307 (1993) (legislative classifications may be based on rational speculation without evidentiary record)