Erotic Serv. Provider Legal Educ. & Research Project v. Gascon

• Decision Date: 17 January 2018
• Docket Number: No. 16-15927,16-15927
• Citation: 880 F.3d 450
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

880 F.3d 450

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.

No. 16-15927

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2017 San Francisco, California

Filed January 17, 2018

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.

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:

(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 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, 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 , ––– U.S. ––––, 135 S.Ct. 2584, 2602–05, 192 L.Ed.2d 609 (2015) (right of same-sex couples to marry); Eisenstadt v. Baird , 405 U.S. 438, 453–54, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (right to contraception); Griswold v. Connecticut , 381 U.S. 479, 484–86, 85 S.Ct. 1678, 14 L.Ed.2d 510 (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, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (emphasis added).

A. Fundamental Liberty Interest

ESP’s primary argument is that...