“Why should it be illegal to sell something that you can give away for free?” Judge Consuelo Callahan
In a striking blow to conservatives, the Supreme Court last month refused to hear the appeal of the states of Louisiana and Kansas, both of which sought to end their public funding of abortion provider Planned Parenthood through the Medicaid program.
President Trump’s newest appointment to the High Court, Brett Kavanaugh, joined with fellow “conservative” John “the Obamacare mandate is a tax” Roberts and the Court’s four liberal justices—Ginsburg, Kagan, Sotomayor, & Breyer—in not voting to accept the case. At least four of the justices must vote in favor of the Court hearing an appeal. This leaves intact lower court rulings that prevented Louisiana and Kansas from stripping government healthcare funding from local Planned Parenthood affiliates.
This was a high-profile case. Yet, each term, approximately 7,000-8,000 new cases are filed in the Supreme Court—and rejected. The Supreme Court in its last term only issued 76 opinions.
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One of them was not ESPLERP v Gascón, which argued that California’s anti-prostitution law was unconstitutional.
The Erotic Service Providers Legal, Education and Research Project (ESPLERP) “is a diverse community-based erotic service provider led group which seeks to empower the erotic community and advance sexual privacy rights through legal advocacy, education, and research.” George Gascón is the District Attorney of San Francisco who was formerly the San Francisco police chief.
The plaintiffs are ESPLERP and four unnamed individuals (K.L.E.S., C.V., J.B., & John Doe). The defendants are Gascón and the district attorneys of three California counties as well as the attorney general of California.
The case was originally filed in March of 2015 in the U.S. District Court Northern District of California at San Francisco.
According to the case:
Section 647 of the California Penal Code provides, among other things, that every person who “solicits or who agrees to engage in or who engages in any act of prostitution” is guilty of disorderly conduct, a misdemeanor.
The term “prostitution” is defined by Section 647(b) to include “any lewd act between persons for money or other consideration.”
The term “lewd” is not defined by statute, but has been interpreted by the California courts as the touching of the genitals, buttocks, or female breast, for the purpose of sexual arousal or gratification.
Among other things, the plaintiffs sought:
A declaration that California’s prostitution statute, Section 647(b) of the California Penal Code, is unconstitutional, both facially and as it may be applied against Plaintiffs.
Preliminary and permanent injunctive relief prohibiting Defendants from enforcing Section 647(b) of the California Penal Code.
Among other things, the plaintiffs argued:
The commercial exchange of private sexual activity between consenting adults harms no one. Unlike other acts made criminal (things like murder, human trafficking, or robbery), the commercial exchange of sex produces no victims. As such, there is no compelling or legitimate governmental interest in its criminalization.
The rights of adults to engage in consensual, private sexual activity (even for compensation) is a fundamental liberty interest.
There is not even a legitimate governmental interest which could possibly justify California’s prostitution laws. The government has no interest in regulating such activities
so long as the activities occur in private amongst consenting adults in furtherance of their liberty interest in their own sexual behavior.
By prohibiting the commercial exchange of private sexual activity, Section 647 of the California Penal Code precludes many individuals, including both those who want to sell their sexual services and those who want to buy them, from deciding how to conduct their private lives in matters pertaining to sex.
Section 647 of the California Penal Code therefore makes pure speech a criminal activity. The statute also utilizes speech to make an otherwise lawful act (engaging in sexual activity in private or even agreeing to engage in sexual activity at some point in the future) a crime based solely on the speaker’s message and the content of his or her speech.
Because this statute severely infringes on the ability to earn a living through one’s chosen livelihood or profession, it unconstitutionally burdens the right to follow any of the ordinary callings of life; to live and work where one will; and for that purpose to enter into all contracts which may be necessary and essential to carrying out these pursuits.
Section 647(b) of the California Penal Code severely infringes on the rights to freedom of association of many persons in the State of California, including Plaintiffs herein. By prohibiting the commercial exchange of private sexual activity, many persons in the State of California, including Plaintiffs herein, are unable to enter into and maintain certain intimate and private relationships.
Plaintiffs are now severely and irreparably injured by Section 647(b) of the California Penal Code, a state law that violates the Due Process Clause of the Fourteenth Amendment. By way of example only, Plaintiffs’ injury includes the deprivation of rights guaranteed by the Fourteenth Amendment and the severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma caused by the State of California’s restrictions on Plaintiffs’ ability to decide how to conduct their private lives in matters pertaining to sex.
Seems like reasonable arguments. Yet, the District Court in May of 2016 dismissed the case, reasoning that only “intimate personal relationships,” not purely sexual ones, were protected from state interference.
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“The District Court Judge’s decision was deeply flawed,” said Maxine Doogan, President of ESPLERP. “He acknowledged that Lawrence v Texas defined a constitutional right to privacy in individuals’ sexual conduct, and also acknowledged that morality was not a basis to deny that right, but then found flimsy legal arguments to deny that right.”
The case was appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco.
During oral arguments before the Court of Appeals in October of 2017, Judge Consuelo Callahan asked the state’s attorney, Sharon O’Grady, a very significant question: “Why should it be illegal to sell something that you can give away for free?” She replied that “it should be illegal because the legislature declared it so.”
In January of 2018, the Court of Appeals affirmed the decision of the District Court and dismissed ESPLERP’s appeal, arguing, among other things, that “there is no constitutional rights to engage in illegal employment, namely, prostitution” and that California law “does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.”
ESPLERP then petitioned the Court for an en banc rehearing before the full Ninth Circuit. The petition was denied in February of 2018.
“We’re disappointed that the Ninth Circuit missed this opportunity to declare, with certainty, that the Constitution protects the right of consenting adults to engage in private sexual activity, even if they are paying for it or getting paid” said Louis Sirkin, ESPLERP’s lead lawyer.
Although an appeal to the U.S. Supreme Court was considered, in July of 2018, ESPLERP announced that it had “changed its legal strategy” and “no longer pursue an appeal to the Supreme Court of the Ninth Circuit Appellate Court’s decision.” The constitutionality of California’s prostitution laws will now be challenged in the California State court system.
As they should be.
How ironic that this case concerns the state of California—the leading producer of pornographic movies and porn stars in the United States. If any state should have legalized prostitution, one would think that it would California—not Nevada.
How illogical that it is legal for people to be paid to have sex—in front of a director, camera, and crew, and then, after production and distribution, in front of hundreds, if not thousands, of strangers—but that it is illegal for people to be paid to have sex in the privacy of their car, home, or hotel room.
How inconsistent that most Americans who don’t support the government’s outlawing of pornographic movies, strip clubs, and massage parlors at the same time support the government’s outlawing of prostitution.
How ridiculous that it is legal for consenting adults to have sex as often as they want and with as many different partners as they want, but that it is illegal if one of the parties pays the other for it.
How strange that it is unlawful to pay a woman $100 for 30 minutes of intimacy, but that it is lawful to pay $100 for dinner and a movie for 30 minutes of intimacy with the same woman.
Why should it be illegal to sell something that you can give away for free? It shouldn’t.
