Erotic Service Provider Legal Education & Research Project v. Gascon ( 2018 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    EROTIC SERVICE PROVIDER LEGAL                     No. 16-15927
    EDUCATION AND RESEARCH
    PROJECT; K.L.E.S.; C.V.; J.B.,                      D.C. No.
    Plaintiffs-Appellants,             4:15-cv-01007-
    JSW
    v.
    GEORGE GASCON, in his official                       OPINION
    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.
    *
    Xavier Becerra is substituted for his predecessor, Kamala Harris.
    Fed. R. App. P. 43(c)(2).
    2                         ESP V. GASCON
    Appeal from the United States District Court
    for the Northern District of California
    Jeffrey S. White, District Judge, Presiding
    Argued and Submitted October 19, 2017
    San Francisco, California
    Filed January 17, 2018
    Before: Consuelo M. Callahan and Carlos T. Bea, Circuit
    Judges, and Jane A. Restani, ** Judge.
    Opinion by Judge Restani
    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
    **
    The Honorable Jane A. Restani, Judge for the United States Court
    of International Trade, sitting by designation.
    ***
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    ESP V. GASCON                          3
    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.
    COUNSEL
    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.
    4                     ESP V. GASCON
    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
    ESP V. GASCON                      5
    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.
    6                      ESP V. GASCON
    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
    invalidate Section 647(b). The version of Section 647(b) in
    effect when this lawsuit was filed provides that:
    [E]very person who commits any of the
    following acts is guilty of disorderly conduct,
    a misdemeanor:
    ESP V. GASCON                        7
    (b) Who solicits or who agrees to engage in
    or who engages in any act of prostitution. A
    person agrees to engage in an act of
    prostitution when, with specific intent to so
    engage, he or she manifests an acceptance of
    an offer or solicitation to so engage,
    regardless of whether the offer or solicitation
    was made by a person who also possessed the
    specific intent to engage in prostitution. No
    agreement to engage in an act of prostitution
    shall constitute a violation of this subdivision
    unless some act, in addition to the agreement,
    is done within this state in furtherance of the
    commission of an act of prostitution by the
    person agreeing to engage in that act. As
    used in this subdivision, “prostitution”
    includes any lewd act between persons for
    money or other consideration.
    
    Cal. Penal Code §647
    (b) (2015). ESP challenged the
    constitutionality of this statute, both on its face and as
    applied, for criminalizing the commercial exchange of
    consensual, adult sexual activity. The State promptly moved
    to dismiss for failure to state a claim upon which relief can
    be granted. The district court granted ESP leave to amend
    their complaint, however ESP declined to file an amended
    complaint. On May 23, 2016, the district court entered
    judgment granting the State’s motion to dismiss with
    prejudice. ESP timely appealed.
    JURISDICTION AND STANDARD OF REVIEW
    We have jurisdiction pursuant to 
    28 U.S.C. §1291
    . We
    review de novo a decision granting a motion to dismiss for
    8                       ESP V. GASCON
    failure to state a claim. Davis v. HSBC Bank Nev., N.A.,
    
    691 F.3d 1152
    , 1159 (9th Cir. 2012).
    DISCUSSION
    In their briefing, Plaintiffs state that they have brought
    both an “as applied” and a “facial” challenge to Section
    647(b). An “as applied” challenge is a claim that the
    operation of a statute is unconstitutional in a particular case,
    but not necessarily in all cases, while a “facial” challenge
    asserts the statute may rarely or never be constitutionally
    applied. 16 C.J.S., Constitutional Law § 243 (2017). The
    State contends ESP has no cognizable as-applied claim
    because there are no allegations that the individual plaintiffs
    are being prosecuted or threatened with prosecution. See
    Hoye v. City of Oakland, 
    653 F.3d 835
    , 857–58 (9th Cir.
    2011) (denying an as-applied challenge because “the fact
    situation that [the plaintiff] [is] involved in here is the core
    fact situation intended to be covered by this [] statute, and it
    is the same type of fact situation that was envisioned by this
    court when the facial challenge was denied” (internal
    quotation marks omitted)). At the outset of oral argument,
    Plaintiffs stated that they “believe this is a facial attack,” and
    that they are not attacking “how it is applied.” Accordingly,
    ESP’s challenge to Section 647(b) is reviewed as a facial
    challenge.
    I. Fourteenth Amendment Due Process
    The first issue presented on appeal is whether Section
    647(b) violates the Due Process Clause of the Fourteenth
    Amendment. If there is no fundamental liberty interest in
    private, consensual sex between adults that extends to
    prostitution, then Section 647(b) must satisfy only the
    deferential rational basis standard of review. If, however,
    ESP V. GASCON                         9
    there is such a fundamental liberty interest, Section 647(b)
    must survive a higher level of scrutiny.
    The Due Process Clause provides that no state shall
    “deprive any person of life, liberty, or property, without due
    process of law.” U.S. Const. amend. XIV, § 1. The
    fundamental rights protected by the Fourteenth
    Amendment’s Due Process Clause extend to certain personal
    choices central to individual dignity and autonomy,
    including intimate choices defining identity and beliefs. See,
    e.g., Obergefell v. Hodges, 
    135 S. Ct. 2584
    , 2602–05 (2015)
    (right of same-sex couples to marry); Eisenstadt v. Baird,
    
    405 U.S. 438
    , 453–54 (1972) (right to contraception);
    Griswold v. Connecticut, 
    381 U.S. 479
    , 484–86 (1965) (right
    to privacy). Further, in Lawrence v. Texas, the Supreme
    Court determined that the Due Process Clause protects the
    fundamental right to liberty in certain, though never fully
    defined, intimate conduct:
    Liberty protects the person from unwarranted
    government intrusions into a dwelling or
    other private places. In our tradition the State
    is not omnipresent in the home. And there
    are other spheres of our lives and existence,
    outside the home, where the State should not
    be a dominant presence. Freedom extends
    beyond spatial bounds. Liberty presumes an
    autonomy of self that includes freedom of
    thought, belief, expression, and certain
    intimate conduct.
    
    539 U.S. 558
    , 562 (2003) (emphasis added).
    10                     ESP V. GASCON
    A. Fundamental Liberty Interest
    ESP’s primary argument is that Lawrence, the Supreme
    Court case which ruled unconstitutional laws that prohibit
    homosexual sodomy, prohibits a state from criminalizing
    prostitution engaged in by adults. In support, ESP makes
    two related contentions: (1) Lawrence guarantees to
    consenting adults a fundamental liberty interest to engage in
    private sexual activity; and (2) the State cannot wholly
    outlaw a commercial exchange related to the exercise of
    such a liberty interest.
    In response, the State argues that nothing in Lawrence
    supports or suggests a fundamental due process right to
    engage in prostitution. Moreover, the State argues the
    Lawrence Court’s concern was not with sexual acts per se,
    but with sexual acts as part of a personal relationship,
    pointing to the statement in Lawrence that “[w]hen sexuality
    finds overt expression in intimate conduct with another
    person, the conduct can be but one element in a personal
    bond that is more enduring.” 
    Id. at 567
    .
    Lawrence has not previously been interpreted as creating
    a liberty interest that invalidates laws criminalizing
    prostitution. See e.g., Doe v. Jindal, 
    851 F. Supp. 2d 995
    ,
    1000 n.11 (E.D. La. 2012) (“Lawrence does not speak to the
    solicitation of sex for money, and has little precedential force
    here.”); Lowe v. Swanson, 
    639 F. Supp. 2d 857
    , 871 (N.D.
    Ohio 2009) (“[I]t would be more correct to narrowly
    construe Lawrence, so as not to unnecessarily disturb the
    prohibitions which were not before the Supreme Court in
    Lawrence, such as adultery, prostitution . . .”); United States
    v. Thompson, 
    458 F. Supp. 2d 730
    , 732 (N.D. Ind. 2006)
    (explaining “it would be an untenable stretch to find that
    Lawrence necessarily renders (or even implies) laws
    prohibiting prostitution . . . unconstitutional”); United States
    ESP V. GASCON                        11
    v. Palfrey, 
    499 F. Supp. 2d 34
    , 41 (D.D.C. 2007) (explaining
    that invalidating laws criminalizing prostitution because of
    Lawrence “stretches the holding in Lawrence beyond any
    recognition”); State v. Romano, 
    155 P.3d 1102
    , 1110 (Haw.
    2007) (explaining that prostitution “is expressly rejected as
    a protected liberty interest under Lawrence”); and State v.
    Thomas, 
    891 So. 2d 1233
    , 1236 (La. 2005) (“[T]he majority
    opinion in Lawrence specifically states the court’s decision
    does not disturb state statutes prohibiting public sexual
    conduct or prostitution.”).
    As we have observed before, “the bounds of Lawrence’s
    holding are unclear.” In re Golinski, 
    587 F.3d 901
    , 904 (9th
    Cir. 2009). The nature of the right Lawrence protects—be it
    a right to private sexual activity among consenting adults, or
    the right to achieve “‘a personal bond that is more
    enduring,”’—Lawrence, 
    539 U.S. at 567
    , by the use of
    private sexual conduct—is never stated explicitly in the
    opinion and has not been elaborated upon by the Supreme
    Court since. But whatever the nature of the right protected
    in Lawrence, one thing Lawrence does make explicit is that
    the Lawrence case “does not involve . . . prostitution.”
    Lawrence, 
    539 U.S. at 578
    .
    We have considered whether a fundamental due process
    right to engage in prostitution exists. In IDK, Inc. v. Clark
    Cnty., 
    836 F.2d 1185
    , 1193 (9th Cir. 1998), we upheld a
    regulation which infringed upon the right of escorts and
    clients to associate with one another, and determined that the
    relationship between a prostitute and client is not protected
    by the due process clause of the Fourteenth Amendment.
    ESP argues that Lawrence overruled IDK by establishing
    a fundamental right among consenting adults to engage in
    sexual activity in private. But, as already noted, Lawrence
    explicitly stated that Lawrence did not “involve . . .
    12                      ESP V. GASCON
    prostitution.” Absent clearer language from the Court
    regarding the nature of the right Lawrence actually does
    protect, we cannot rule that IDK, binding Ninth Circuit
    precedent, is no longer good law.
    Due to IDK, we conclude that laws invalidating
    prostitution may be justified by rational basis review, rather
    than the more searching review called for when a right
    protected by Lawrence is infringed.
    B. Rational Basis Standard of Review
    Rational basis review asks whether “there is a rational
    relationship between disparity of treatment and some
    legitimate government purpose.” Cent. State Univ. v. Am.
    Ass’n of Univ. Prof., 
    526 U.S. 124
    , 128 (1999). Under the
    rational basis standard of review, “legislation is presumed to
    be valid and will be sustained if the classification drawn by
    the statute is rationally related to a legitimate state interest.”
    Cleburne v. Cleburne Living Ctr. Inc., 
    473 U.S. 432
    , 440
    (1985). Rational basis review is highly deferential to the
    government, allowing any conceivable rational basis to
    suffice. United States v. Hancock, 
    231 F.3d 557
    , 566 (9th
    Cir. 2000). In defending a statute on rational basis review,
    the government “has no obligation to produce evidence to
    sustain the rationality of a statutory classification”; rather,
    “[t]he burden is on the one attacking the legislative
    arrangement to negate every conceivable basis which might
    support it.” Heller v. Doe, 
    509 U.S. 312
    , 320 (1993)
    (internal quotation marks omitted).
    To determine whether the State’s law can survive
    rational basis review, we apply a two-tiered inquiry. First,
    we must determine whether the challenged law has a
    legitimate purpose. See Jackson Water Works, Inc. v. Pub.
    Util. Comm’n of Cal., 
    793 F.2d 1090
    , 1094 (9th Cir. 1986).
    ESP V. GASCON                        13
    Second, we address whether the challenged law promotes
    that purpose. See 
    id.
     On rational basis review, the State
    carries a light burden, as “[l]egislative choice is not subject
    to courtroom fact-finding and may be based on rational
    speculation unsupported by evidence or empirical data.”
    F.C.C. v. Beach Communications, 
    508 U.S. 307
    , 315 (1993).
    ESP challenged Section 647(b) as follows: (1) there is
    no important governmental interest behind Section 647(b);
    and (2) Section 647(b) does not significantly further any
    such interest. We hold that the statute, however, does pass
    the two-tiered rational basis test. Section 647(b) has a
    legitimate purpose, as the State proffers specific and
    legitimate reasons for criminalizing prostitution in
    California, which include discouraging human trafficking
    and violence against women, discouraging illegal drug use,
    and preventing contagious and infectious diseases.
    Additionally, as the District Court concluded, the State
    provided adequate argument to establish that Section 647(b)
    promotes those purposes.
    First, the District Court found an established link
    between prostitution and trafficking in women and children.
    See Coyote Publ’g, Inc. v. Miller, 
    598 F.3d 592
    , 600 (9th Cir.
    2010); Bureau of Justice Statistics, U.S. Dep’t of Justice,
    Characteristics of Suspected Human Trafficking Incidents,
    2008–2010 1, 3 (April 2011) (reporting that 82% of
    suspected incidents of human trafficking were characterized
    as sex trafficking, and approximately 40% of suspected sex
    trafficking incidents involved sexual exploitation or
    prostitution of a child). Second, studies indicate prostitution
    creates a climate conducive to violence against women. See
    United States v. Carter, 
    266 F.3d 1089
    , 1091 (9th Cir. 2001);
    Commercial Sex: Beyond Decriminalization, 
    73 S. Cal. L. Rev. 523
    , 533 nn.47–48 (2000) (reporting that a “study of
    14                    ESP V. GASCON
    130 prostitutes in San Francisco found that 82% had been
    physically assaulted, 83% had been threatened with a
    weapon, [and] 68% had been raped while working as
    prostitutes”). Next, the District Court found a substantial
    link between prostitution and illegal drug use. See
    Colacurcio v. City of Kent, 
    163 F.3d 545
    , 554, 556 (9th Cir.
    1998); Amy M. Young, et al., Prostitution, Drug Use, and
    Coping with Psychological Distress, J. Drug issues 30(4),
    789–800 (2000) (describing a destructive spiral in which
    women engage in prostitution to support their drug habit and
    increase their drug use to cope with the psychological stress
    associated with prostitution). Lastly, prostitution is linked
    to the transmission of AIDS and other sexually transmitted
    diseases. Center for Disease Control & Prevention, HIV
    Risk Among Persons Who Exchange Sex for Money or
    Nonmonetary Items (updated Sept. 26, 2016); available at
    http://www.cdc.gov/hiv/group/sexworkers.html (stating that
    sex workers “are at increased risk of getting or transmitting
    HIV and other sexually transmitted diseases (STDs) because
    they are more likely to engage in risky sexual behaviors
    (e.g., sex without a condom, sex with multiple partners) and
    substance use”).
    While ESP maintains that the criminalization of
    prostitution makes erotic service providers more vulnerable
    to crimes, and does not significantly deter the spread of
    diseases, such assertions do not undermine the “rational
    speculation” found sufficient to validate the legislation
    under Beach Communications. ESP’s claims may yet
    convince the California legislature to change its mind. But
    this court cannot change its mind for them. As indicated,
    Section 647(b) is 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. For these reasons, the district court
    ESP V. GASCON                            15
    correctly held that the State “proffered sufficient legitimate
    government interests that provide a rational basis to justify
    the criminalization of prostitution in California.”
    II. Freedom of Association
    Appellant’s next challenge invokes the Fourteenth
    Amendment freedom of association. There are two distinct
    forms of freedom of association: (1) freedom of intimate
    association, protected under the Substantive Due Process
    Clause of the Fourteenth Amendment; and (2) freedom of
    expressive association, protected under the Freedom of
    Speech Clause of the First Amendment. See Roberts v. U.S.
    Jaycees, 
    468 U.S. 609
    , 617–18 (1984). While ESP’s
    argument is framed as an issue of First Amendment freedom
    of speech, this issue is properly analyzed under the
    Fourteenth Amendment Substantive Due Process Clause.
    Any First Amendment claim is precluded, as indicated in
    Part IV. With regard to intimate association, “choices to
    enter into and maintain certain human relationships must be
    secured against undue intrusion by the State because of the
    role of such relationships in safeguarding the individual
    freedom that is central to our constitutional scheme.” 
    Id.
    Consequently, intimate association receives protection as a
    fundamental element of personal liberty. 
    Id.
     Such
    protection, however, extends only to “certain kinds of highly
    personal relationships”. See 
    id. at 618
    .
    As noted above, we have already ruled that the
    relationship between a prostitute and a client does not
    qualify as a relationship protected by a right of association.1
    1
    Of course, we are bound by our precedent unless overruled by an
    en banc panel or clearly abrogated or overruled by the Supreme Court.
    Miller v. Gammie, 
    335 F.3d 889
    , 899 (9th Cir. 2003) (en banc).
    16                     ESP V. GASCON
    IDK, 836 F.2d at 1193. As we explained in that case, a
    prostitute’s relationship with a client “lasts for a short period
    and only as long as the client is willing to pay the fee.” Id.
    Therefore, the duration of the relationship between a
    prostitute and a client does not suggest an intimate
    relationship. Furthermore, the commercial nature of the
    relationship between prostitute and client suggests a far less
    selective relationship than that which previously has been
    held to constitute an intimate association. Roberts, 
    468 U.S. at
    619–20 (extending the right of intimate association to
    marriage, child bearing, child rearing, and cohabitation with
    relatives). Thus, we hold Section 647(b) does not violate the
    freedom of intimate or expressive association.
    III.    Right to Earn a Living
    The third constitutional challenge is that Section 647(b)
    violates the Fourteenth Amendment right to earn a living.
    The fundamental right to make contracts is guaranteed by the
    Constitution, which forbids the government from arbitrarily
    depriving persons of liberty, including the liberty to earn a
    living and keep the fruits of one’s labor. See, e.g., Lowe v.
    S.E.C., 
    472 U.S. 181
    , 228 (1985) (“‘It is undoubtedly the
    right of every citizen of the United States to follow any
    lawful calling, business, or profession he may choose.’”
    (quoting Dent v. W. Va., 
    129 U.S. 114
    , 121–22 (1889)).
    Nonetheless, the district court properly dismissed ESP’s
    claims that Section 647(b): (1) “severely infringes on [their]
    ability to earn a living through one’s chosen livelihood or
    profession”; and (2) “unconstitutionally burdens the right to
    follow any of the ordinary callings in 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.” Despite ESP’s attempts to interpret Lawrence as
    creating a liberty interest that invalidates prostitution laws,
    ESP V. GASCON                        17
    ESP’s interpretation is misguided. As stated in Lawrence:
    “This case does not involve minors, persons who might be
    injured or coerced, those who might not easily refuse
    consent, or public conduct or prostitution.” Lawrence,
    
    539 U.S. at 560
    . Furthermore, even if some protectable
    employment interest exists, Section 647(b) applies to every
    person and is punishable by a misdemeanor charge, so it can
    properly be considered a reasonable law of general
    application. See Blackburn v. City of Marshall, 
    42 F.3d 925
    ,
    941 (5th Cir. 1995) (stating protectable interests in
    employment arise only “where not affirmatively restricted
    by reasonable laws or regulations of general application”).
    We therefore hold there is no constitutional right to engage
    in illegal employment, namely, prostitution.
    IV.    Freedom of Speech
    The final issue presented on appeal is whether Section
    647(b) violates the First Amendment freedom of speech.
    ESP argues that the statute improperly makes pure speech a
    criminal activity, as Section 647(b) prohibits solicitation of
    prostitution. Here, we are dealing with commercial speech.
    Speech is “commercial” if it does “no more than propose a
    commercial transaction.” Va. State Bd. of Pharmacy v. Va.
    Citizens Consumer Council, Inc., 
    425 U.S. 748
    , 762 (1976).
    Although the Constitution accords lesser protection to
    commercial speech than other constitutionally guaranteed
    expression, it still protects commercial speech from
    unwarranted governmental regulation. Central Hudson Gas
    & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 
    447 U.S. 557
    ,
    562–63 (1980). For commercial speech to receive First
    Amendment protection, however, it must: (1) concern
    lawful activity and not be misleading; (2) serve a substantial
    government interest; (3) directly advance the governmental
    interest asserted; and (4) be narrowly tailored. 
    Id. at 566
    .
    18                         ESP V. GASCON
    Restrictions on commercial speech are reviewed under the
    standard of intermediate scrutiny. See 
    id.
     at 563–66.
    Therefore, we assess whether the speech regulated by
    Section 647(b), i.e. soliciting prostitution, satisfies the four
    aforementioned elements and thus constitutes protected
    commercial speech. Central Hudson specifies that if the
    regulated speech concerns illegal activity or is misleading,
    the First Amendment extends no protection and the analysis
    ends. 
    Id.
     at 563–64. Whether or not the speech regulated by
    Section 647(b) is misleading is not at issue in this case, thus
    we confine our discussion of this element to the legality of
    prostitution. As of 2010, forty-nine of the fifty states
    prohibited all sales of sexual services. Coyote, 
    598 F.3d at 600
    . 2 Moreover, prostitution has not been a lawful activity
    in California since it was banned in 1872, and we have not
    invalidated the current version of Section 647(b) based on
    other constitutional grounds. On this basis alone, ESP’s
    claim fails because commercially motivated speech that
    involves unlawful activity is not protected speech under the
    First Amendment. See, e.g., State v. Roberts, 
    779 S.W.2d 576
    , 579 (Mo. 1989) (en banc) (reasoning that words uttered
    as an integral part of the prostitution transaction do not have
    a lawful objective and are not entitled to constitutional
    protection).
    While the analysis need not proceed further given the
    unlawful activity at issue, for completeness we turn to the
    remaining steps of the Central Hudson test and ask whether
    the asserted governmental interest is substantial. ESP argues
    2
    Despite Nevada’s decision to opt for partial legalization, it too has
    taken significant steps to limit prostitution, including the total ban on
    prostitution in its largest population center, Clark County, home to
    72 percent of the state’s population. 
    Id.
     at 600–01 & n.11.
    ESP V. GASCON                        19
    the State can assert no compelling or substantial interest
    justifying such a regulation of speech. The State contends
    that criminalizing the commercial exchange of sexual
    activity is a valid exercise of its police powers. We hold that
    the criminalization of prostitution is a valid exercise of
    California’s police power and hence, the State may
    criminalize prostitution in the interest of the health, safety,
    and welfare of its citizens under the Tenth Amendment. See,
    e.g., Roberts, 
    779 S.W.2d at 579
    . Accordingly, it is left to
    the political branches to fix the boundary between those
    human interactions governed by market exchange and those
    not so governed. Coyote, 
    598 F.3d at 604
    . Banning the
    commodification of sex is a substantial policy goal that all
    states but Nevada have chosen to adopt. 
    Id.
     at 600–01. We
    therefore conclude the interest in preventing the
    commodification of sex is substantial.
    At step three of the Central Hudson test, we ask whether
    Section 647(b) “directly and materially advances” its
    asserted interest in limiting the commodification of sex. See
    Greater New Orleans Broad. Ass’n, Inc. v. U.S., 
    527 U.S. 173
    , 188 (1999). Section 647(b) directly and materially
    advances the State’s interest in limiting such
    commodification by reducing the market demand for, and
    thus the incidence of, prostitution. Common sense counsels
    that soliciting prostitution tends to stimulate demand for
    those services, and conversely, criminalizing such speech
    tends to lessen the demand. Coyote, 
    598 F.3d at 608
    . Thus,
    reducing the demand for prostitution in turn limits the
    commodification of sex. 
    Id.
     We reason that the State’s
    substantial interest in limiting the commodification of sex is
    directly and materially advanced by Section 647(b).
    Finally, we assess whether Section 647(b)’s restrictions
    on speech are “more extensive than necessary” in light of the
    20                    ESP V. GASCON
    State’s interests. Central Hudson, 
    447 U.S. at 566
    . While
    “[t]he Government is not required to employ the least
    restrictive means conceivable, [] it must demonstrate narrow
    tailoring of the challenged regulation to the asserted
    interest—a fit that is not necessarily perfect, but reasonable
    . . .” Greater New Orleans Broad., 
    527 U.S. at 188
     (internal
    quotation marks omitted). Here the State has tailored its
    speech restrictions to attain a reasonable fit between ends
    and means because Section 647(b) prohibits only speech that
    invokes the illegal act of prostitution. Given the plain
    language of Section 647(b), we hold that the restrictions on
    soliciting prostitution are consistent with the First
    Amendment. In sum, 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.
    CONCLUSION
    For the foregoing reasons, the district court’s judgment
    dismissing ESP’s action is AFFIRMED.