Erotic Service Provider Legal Education and Research Project; K.L.E.S.; C.V.; J.B., Plaintiffs-Appellants,
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.
and Submitted October 19, 2017 San Francisco, California
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.
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
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.
L. Mosley, Law Offices of Jerald L. Mosley, Pasadena,
California, for Amicus Curiae Children of the Night.
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
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
Before: Consuelo M. Callahan and Carlos T. Bea, Circuit
Judges, and Jane A. Restani, [**] Judge.
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.
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
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.
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.
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 ...