Erotic Svc Provider Legal Edu. v. George Gascon , 880 F.3d 450 ( 2018 )

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.