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Erotic Service Provider Legal Education and Research Project v. Gascon

United States Court of Appeals, Ninth Circuit

January 17, 2018

Erotic Service Provider Legal Education and Research Project; K.L.E.S.; C.V.; J.B., Plaintiffs-Appellants,
v.
George Gascon, in his official capacity as District Attorney for the City and County of San Francisco; Edward S. Berberian, Jr., in his official capacity as District Attorney of the County of Marin; Nancy E. O'Malley, in her official capacity as District Attorney for the County of Alameda; Jill Ravitch, in her official capacity as District Attorney of the County of Sonoma; Xavier Becerra, [*] Attorney General, in her official capacity as Attorney General of the State of California, Defendants-Appellees.

          Argued and Submitted October 19, 2017 San Francisco, California

         Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding D.C. No. 4:15-cv-01007-JSW.

          Henry Louis Sirkin (argued) and Brian P. O'Connor, Santen & Hughes LPA, Cincinnati, Ohio; D. Gill Sperlein, Law Offices of D. Gill Sperlein, San Francisco, California; for Plaintiffs-Appellants.

          Sharon O'Grady (argued), Deputy Attorney General; Tamar Pachter, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Office of the Attorney General, San Francisco; California, for Defendants-Appellees.

          Jerald L. Mosley, Law Offices of Jerald L. Mosley, Pasadena, California, for Amicus Curiae Children of the Night.

          Allan B. Gelbard, Encino, California; Lawrence Walters, Walters Law Group, Longwood, Florida; Jennifer M. Kinsley, NKU Chase College of Law, Highland Heights, Kentucky; for Amici Curiae First Amendment Lawyers Association and Woodhull Freedom Foundation.

          Melissa Goodman and Tasha Hill, ACLU Foundation of Southern California, Los Angeles, California; Elizabeth Gill, ACLU Foundation of Northern California; for Amici Curiae American Civil Liberties Union Foundation of Southern California, American Civil Liberties Union Foundation of Northern California, API Equality-LA, Bienestar, Black Women for Wellness, California Rural Legal Assistance Inc., California Women's Law Center, Equality California, Familia: Trans Queer Liberation Movement, Free Speech Coalition, Genders & Sexualities Alliance Network, Gender Justice Los Angeles, Justice Now, Los Angeles LGBT Center, National Center For Transgender Equality, Transgender, Gender-Variant, Intersex Justice Project, TransLatin@ Coalition, Transgender Law Center, Transgender Service Provider Network.

          Carmina Ocampo, Lambda Legal Defense & Education Fund Inc., Los Angeles, California; Kara N. Ingelhart and Scott A. Schoettes, Lambda Legal Defense & Education Fund Inc., Chicago, Illinois; Hayley Gorenberg and Richard Saenz, Lambda Legal Defense & Education Fund Inc., New York, New York; for Amici Curiae Lambda Legal Defense and Education Fund, AIDS United, APLA Health, Center for HIV Law and Policy, GLBTQ Legal Advocates & Defenders, HIV Prevention Justice Alliance, National Alliance of State & Territorial AIDS Directors, National Center for Lesbian Rights, Positively Trans, Positive Women's Network-USA, San Francisco AIDS Foundation, Brad Sears (Executive Director, The Williams Institute), Sero Project, and Sex Workers Project at the Urban Justice Center.

          Savanah Lawrence, National Center on Sexual Exploitation, Washington, D.C.; Patrick A. Trueman, National Center on Sexual Exploitation, Washington, D.C.; for Amici Curiae National Center on Sexual Exploitation, Covenant House California, Freedom from Exploitation (California), Coalition Against Trafficking in Women, Space International, Equality Now, Demand Abolition, Chicago Alliance Against Sexual Exploitation, Wichita State University Center for Combating Human Trafficking, Global Centurion Foundation, Survivors for Solutions, National Organization for Women in New York, and Sanctuary.

          Before: Consuelo M. Callahan and Carlos T. Bea, Circuit Judges, and Jane A. Restani, [**] Judge.

         SUMMARY[***]

         Civil Rights

         The panel affirmed the district court's dismissal of an action brought pursuant to 42 U.S.C. § 1983 challenging Section 647(b) of the California Penal Code, which criminalizes the commercial exchange of sexual activity.

         The panel first rejected plaintiffs' assertion that Lawrence v. Texas, 539 U.S. 558, 562 (2003) created a liberty interest that prohibits a state from criminalizing prostitution. Applying IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1193 (9th Cir. 1998), the panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review. The panel held that Section 647(b) was rationally related to several important governmental interests, any of which support a finding of no constitutional violation under the Due Process Clause of the Fourteenth Amendment.

         The panel held that Section 647(b) does not violate the Fourteenth Amendment freedom of intimate or expressive association. The panel noted that this court in IDK, Inc. v. Clark Cnty had already ruled that the relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs' assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.

          OPINION

          RESTANI, JUDGE.

         Plaintiff-appellant Erotic Service Provider Legal, Education & Research Project; K.L.E.S.; C.V.; J.B.; and John Doe (collectively, "ESP") appeal the district court's dismissal of their 42 U.S.C. §1983 action. ESP claims that Section 647(b) of the California Penal Code, which criminalizes the commercial exchange of sexual activity, 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. We conclude the district court did not err in dismissing ESP's claims. Accordingly, we affirm.

         BACKGROUND

         ESP includes three former "erotic service providers" who wish to perform sex for hire, and a potential client who wishes to engage an "erotic service provider" for such activity. On March 4, 2015, ESP filed a complaint seeking declaratory and injunctive relief against the district attorneys of the City and County of San Francisco, Marin County, Alameda County, Sonoma County, and the Attorney General of California (collectively, the "State") to enjoin and ...


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