Prostitution

Dallas Law Against 'Manifesting' Prostitution Declared Unconstitutional

Plus: The right to call neighbor a "red-headed bitch," the case against a Digital Consumer Protection Commission, and more...

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(Photo by Raphael Wild on Unsplash)

Manifesting prostitution law rejected. The Dallas County Criminal Court of Appeals has struck down a law against "manifesting the purpose of engaging in prostitution." The law "is seeking a shortcut that trespasses on the constitutional rights of Dallas citizens," wrote Judge Kristin Wade in her decision. The statute was "overbroad," she argued, because "it punishes constitutionally protected conduct as well as illegal activity."

The Dallas law is separate from Texas' main prohibition of prostitution. The latter prohibits engaging in, offering to engage, or agreeing to engage in sex acts for a fee. The former prohibits looking like you might be about to do so.

Under the Dallas law, it was a misdemeanor punishable by a fine of up to $500 to loiter "in a public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting, or procuring another to commit an act of prostitution."

Laws like these—sometimes called "manifesting" for the purpose of prostitution, sometimes "loitering" for prostitution purposes—are common in cities and states around the country. But there's been a growing movement against these laws, which make it easy for police to hassle and arrest people without cause.

In 2021, New York state repealed its loitering for prostitution statute. California did the same in 2022.

Such laws basically let police arrest people that look to cops like they're sex workers—a situation that has led some opponents to label them "walking while trans" laws, given how likely they are to be used against transgender people. Police may also use them to arrest people who have previous prostitution convictions, or anyone whom they think is dressed too provocatively or lingering on the street too long. The criteria for arrest depends much more on what cops think is going on than what's actually going on.

This can lead to their use against people who aren't engaged in prostitution at all. Or it may lead to police arresting sex workers who, yes, sometimes engage in prostitution, but without having to actually prove that they're doing so at the time of arrest.

In other words, it lets police circumvent due process.

The Dallas statute specifically stated that "among the circumstances which may be considered" a violation is "that such person is a known prostitute or panderer."

Other circumstances include "repeatedly beckon[ing] to, stop[ping] or attempt[ing] to stop, or engag[ing] passers-by in conversation, or…to stop motor vehicle operators by hailing, waving of arms, or any other bodily gesture."

The case that led to the law being struck down involved the arrest of Iqbal Jivani, who "was in a known prostitution area and stopped to engage passers-by in conversation," per a police complaint. Jivani's lawyer argued that the arrest violated Jivani's Fourth Amendment rights.

"Municipal Court Judge Jay Robinson found that the charge did not violate the Fourth Amendment, but said the ordinance was unconstitutionally vague and overbroad," reports The Dallas Morning News. "The Dallas city attorney's office appealed, and Wade affirmed Robinson's ruling."

"Everything about this ordinance is highly dependent on the mindset of an arresting officer," wrote Judge Wade. Under the right circumstances, she noted, a woman in a high-crime area could be arrested for trying "to summon a cab if a police officer is watching."

FREE MINDS

Court upholds right to call neighbor a "red-headed bitch." A new decision from an Ohio appellate court is "good news for the First Amendment, and apparently bad news for redheads," writes Jack Greiner of The Cincinnati Enquirer:

The court overturned a disorderly conduct conviction stemming from a Marysville man calling his neighbor a "red-headed bitch" in a dispute over access to a driveway. In the court's view, the circumstances did not amount to fighting words….

[Dan Foley] stated he was on his property and [Cody] Gibson was on his own property when Gibson called him a "redheaded bitch." Foley testified that Gibson did not approach him, and he estimated that Gibson was 40–50 yards away at the time of the incident. Finally, Foley confirmed he did not say anything to Gibson in reply, and he stated he did not try to fight Gibson or "cuss him out."

Gibson essentially admitted to the facts elicited in Foley's testimony. At the conclusion of the evidence, the trial court found the state had "proven beyond a reasonable doubt that there was a likelihood that using that language between neighbors would result in a violent response." Accordingly, the trial court found Gibson guilty of disorderly conduct as charged in the complaint, fined him $58, and ordered him to pay court costs.

Gibson appealed and found a friendlier audience in the higher court. The question for the appellate court was whether the use of profanity without more constituted "fighting words" that would survive a First Amendment challenge.

FREE MARKETS

Another example of "bipartisanship is just another word for terrible ideas." Last week, Sens. Lindsey Graham (R–S.C.) and Elizabeth Warren (D–Mass.) announced a bipartisan attempt to launch a Digital Consumer Protection Commission (DCPC), which would have "the power to sue, write rules and even shut down internet platforms," as Joe Lonsdale, managing partner at 8VC, writes in The Wall Street Journal.

"I've spent my life building technology companies—not in Big Tech, but taking on Big Tech through entrepreneurship and innovation," Lonsdale writes. "I invest in and engage in partnerships with hundreds of other entrepreneurs to build technology for America. The DCPC is a terrible idea." He adds that the agency "would be a disaster for tens of thousands of small and medium-size technology businesses—the beating heart of our innovation ecosystem."

Reason's Liz Wolfe wrote about the Warren-Graham plan last week, noting that the senators complain a lot about tech companies but fail to make much of a point:

"Google uses its search engine to give preference to its own products, like Google Hotels and Google Flights, giving it an unfair leg up on competitors," they continue. "Amazon sucks up information from small businesses that offer products for sale on its platform, then uses that information to run its own competing businesses."

"Apple forces entrepreneurs (and thereby consumers) to pay crushing commissions to use its App Store," even.

But they fail to argue for how consumers are made worse off by these purportedly destructive tactics. Google Flights makes travel planning far easier than the days before search. No person is prevented from going directly to an individual airline's website to book their flight if they prefer. Amazon has increasingly started developing Basics, its generic brand of commonly purchased household goods (just as Target has Target Brand products on offer); if someone needs a phone charger, they can get it more cheaply and quickly than ever before. As for Apple, of course other app developers must pay to place their products in the company's digital storefront; how nice that customers have access to products made by developers other than those at Apple!

QUICK HITS

• Say goodbye to permissionless travel.

• Yesterday a vehicle crashed into a group of six migrants outside a North Carolina Walmart. Police are calling it an "intentional assault."

• "Evangelical military vets are using 'counterterror' internet surveillance techniques to help police get search warrants against sex workers," reports The Intercept.

• Studies keep finding that social media algorithms don't increase polarization. Why is the press so skeptical?

• "Trump's PAC, Save America, has reportedly paid over $40 million in legal fees so far in 2023; more than the campaign raised during the second quarter of the year," reports Axios.

• The New York Times profiles Techdirt founder Mike Masnick.

• Reason's Nick Gillespie talked with author Jean Twenge and me about generational differences.

• Protectionist laws will not save local news, writes the Reason Foundation's Max Gulker.