AG Seeks to Toss ESPLER’s Suit to Overturn Calif.'s Prostitution Statute

May 12, 2015 3:36 PM PST

OAKLAND, Calif. — ESPLER’s lawsuit challenging the constitutionality of California's law against prostitution fails to state a claim, according to a motion to dismiss from the state's attorney general, Kamala Harris.

ESPLER — formally known as the Erotic Service Provider Legal, Education and Research Project — is a San Francisco nonprofit that describes itself as an advocate of sexual privacy that educates the public about the harms inherent in the current prohibition and criminalization of prostitution.  

ESPLER’s lawsuit, which seeks to overturn California’s 54-year-old prostitution statute, contends that the law breaks both the federal and state constitutions. Harris and district attorneys of four counties in March were sued over the statute in a case asking for declaratory and injunctive relief.

The suit, filed by adult entertainment industry attorneys Gill Sperlein and H. Louis Sirkin,  contends that Section 647(b) of the California Penal Code violates the 1st Amendment involving free speech and freedom to associate, as well as the 14th Amendment in relation to the substantive due process right to earn a living and sexual privacy.

Harris, in her motion to dismiss, said that "there is no fundamental right to engage in prostitution or solicit prostitution. Neither is prostitution or solicitation expressive conduct protected by the First Amendment."

“And the relationship between prostitute and client is not an expressive association protected by the First Amendment. There also exists no substantive due process right to work as a prostitute,” she said.

The statute against prostitution "is rationally related to California's interest in deterring human trafficking and coercion, violence against prostitutes, the spread of AIDS and venereal disease, and crimes incidental to prostitution, as well as California's interest in deterring commodification [sic] of sex, and is facially constitutional.”

"This case is not about whether the state can criminalize sex; it is about whether the state can criminalize the purchase and sale of sex," Harris said. "Once the liberty interest at stake is properly framed as the right to buy and sell sex, it is clear that the substantive due process does not protect it."

Harris noted that, similarly, solicitation is not constitutionally protected speech and there is no associational right to engage in sex for hire since "prostitutes are not hired for their conversational skills, they are hired for sex" and “association for the purpose of sexual commerce is not protected by the First Amendment.”

Harris' motion will be heard at Oakland federal court on Aug. 7 before U.S. District Judge Jeffrey White. 

Maxine Doogan, the president of ESPLER who is also one of the lawsuit's plaintiffs, said last week she expects the group's lawsuit to be dismissed by White, and already is raising money for an appeal.

"If the judge grants the motion to dismiss, we get to immediately appeal to the 9th U.S. Circuit Court of Appeals. If we proceed to trial and the judge rules against us, we will also appeal," she said.

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