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No Right to Earn a Living Via Prostitution, Says Federal Court

"There is no constitutional rights to engage in illegal employment," rules the 9th Circuit court.

Rafael Ben-Ari/Chameleons Eye/NewscomRafael Ben-Ari/Chameleons Eye/NewscomA federal appeals court has sided against the Erotic Service Providers Legal, Education, and Research Project (ESPLERP) in a case challenging the constitutionality of California's law criminalizing prostitution.

During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position, which relied on similar arguments to those used in Lawrence v. Texas, the case that destroyed the country's laws against gay sex.

But in an opinion released today, a three-judge panel wound up affirming the district court's decision to dismiss the lawsuit. The panel rejected the idea that Lawrence v. Texas "created a liberty interest that prohibits a state from criminalizing prostitution," ruling that "a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment."

The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment."

Read the whole disappointing decision here.

Photo Credit: Rafael Ben-Ari/Chameleons Eye/Newscom

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  • Mickey Rat||

    You would think thst the coury would come up with a better rationale than a tautology...wait, 9th Circuit...nevermind.

  • Fist of Etiquette||

    Look, obviously they can make it illegal because they did.

  • Tibfulv||

    I wouldn't call it a tautology. Seems circular, or question-begging.

  • GILMORE™||

    "ESPLERP"

    yeah, just like that, baby

  • Rhywun||

    My cat esplerped all over the carpet yesterday.

  • Chipper Morning Baculum||

    Are you implying Gilmore is talking to his cat?

  • Hugh Akston||

    You don't think he'd fuck it without a little sweet talk first, do you? He's classier than that.

  • Citizen X - #6||

    (ESPLERP)

    That's, uh, an interesting acronym.

  • Beatrix||

    What kills me about this case is that at no time does the government have to prove their claim that prostitution harms the people involved. And it's my belief that they can't. However ESLERP can provide ample evidence that it does not, with studies and papers that have been published in the past two decades as well as examples of the positive impact it has had on the numerous countries where it is legal or decriminalized.

    This is a moral crusade period. And in Lawrence vs Texas the Supreme Court stated that a law cannot be based on what the moral majority demands, that someone has to be harmed in the event for it to be considered a crime. 7 of the 9 justices voted to pass it. So this case needs to appeal to the Supreme Court while these 7 justices are still seated. But unfortunately, we can't afford to. After almost 3 years of litigation, we are out of money. Sex workers are not supporting us as much as they could, neither are the patrons or the bulletin boards we work from. Even the Bill and Melinda Gates Foundation, which gave $325 million to sex workers in India haven't donated a penny. Sad state of affairs indeed.

  • Citizen X - #6||

    "there is no constitutional rights to engage in illegal employment."

    The Constitution doesn't grant rights. The Constitution grants powers to the federal government, and any power not explicitly granted is forbidden, you irrelevancy-loving assholes.

  • Libertymike||

    You consulted neither Hamilton nor Marshall.

  • Citizen X - #6||

    Yeah, well, fuck those guys.

  • Libertymike||

    Federalist Necrophilia.

  • Chipper Morning Baculum||

    Not for money you don't.

  • AlmightyJB||

    Ba dump bump

  • Mickey Rat||

    Human trafficking is one of the progressive cause de jure right now. Do you really expect the 9th Circuit to go against the conventional wisdom and make prostitution constitutionally protected?

    As well as every other type of business and profession by implication? That would put a lot of business regulatory statutes at all levels in jeopardy. That argument has such far reaching implications beyond prostitution that the 9th Circuit was in no way going to affirm it.

  • DiegoF||

    Yes!

    The idea that this case was ever going to get help from Lawrence is laughable, because Lawrence was a sham. If the 5th, 9th, and 14th Amendments were being read properly, of course, the state would not come anywhere close to being able to regulate consensual sexual relations between individuals. But it hadn't been since at least the FDR administration; instead, the courts simply dip and dabble selectively into those amendments (and totally irrelevant ones) to create their "penumbra" on whatever specific occasions they feel enlightened opinion warrants such interference--and the suburban kiddies can still have their $15 paycheck at Spencer Gifts and be kept safe from all that nasty, deadly LSD.

    Fortunately for the gays, polite and respectable liberal opinion had begun moving away from the idea that they were "victims, not monsters," people to be helped and pitied rather than moral degenerates, some thirty years before Lawrence. Unfortunately for the "sex workers" fifteen years later still, such opinion has not moved one inch on their behalf.

  • EscherEnigma||

    Lawrence v. Texas (2003) was based on the 9th and 14th amendments. The "right to privacy" they cited was read out of the9th and 14th amendments in Griswold v. Connecticut (1965).

  • DiegoF||

    Read what I said more carefully.

  • Chipper Morning Baculum||

    What if you have sex with someone and then agree to donate to a charity of their choosing? Is that legal?

  • josh||

    As long as there's no agreement in advance. And just in case, the charity should be a bail bondsman.

  • Johnimo||

    The Bill of Rights doesn't "grant" rights, but rather formally recognizes them. The under-appreciated 9th and 10th Amendments are a more general recognition of rights (and powers) not enumerated in the Constitution.

  • ||

    The court also concludes that [people] rights to earn a living is not violated by the criminalization of [job people do] because [same job people do] is illegal and "there is no constitutional rights to engage in illegal employment."

    Do it yourself Godwin Mad Lib!

  • Chipper Morning Baculum||

    tautologists', tautology making, tautologizing

  • Libertymike||

    Sheesh, don't people know that there is no prurient base right of association?

    Everybody should know that Hester Prynne does not have a right to associate with Arthur Dimmesdale!

  • ||

    That double column tie is clearly not the work of a professional.

    Hopefully the dom/tier is at least professional enough to have some emergency shears on hand.

  • Stormy Dragon||

    I'm sure Gorsuch will vote to uphold their right topffftHAHAHA

    Sorry, couldn't make it through again.

  • AlmightyJB||

    Prostitution as a consensual agreement between parties should be none of the government's business.

  • Citizen X - #6||

    And yet here we are.

  • AlmightyJB||

    Well it would be shocking if the 9th ever stood on the side of freedom over the state. They're just part of the machine.

  • Hugh Akston||

    if only they had tried the case in one of the other circuit courts, prostitution would be legal already smh.

  • Johnimo||

    Not likely, but .... more likely. The 9th is one of the worst, siding with the power of government frequently.

  • Scarecrow Repair & Chippering||

    It astonished me how pron can be legal to make but not prostitution. I'd have a lot more respect if they outlawed all sex for money, except then they'd run up against some wise-ass trying to annul a marriage.

  • BestUsedCarSales||

    It's because by filming it it becomes speech. It's also why old pornos had those weird flimsy plots. Or new pornos have plots about lemon thieves.

  • ||

    This has the cart before the horse, IMO. A/V porn was terrible plot-wise well before there was A/V. Only recently has there been a more "legitimate" co-mingling of porn and (screen)writing. Not that the government wasn't involved in any way but the fact that women innately prefer plot-driven emotions while men don't* is/was a much bigger driver of supply/demand.

    *An acknowledged gross oversimplification of the duality.

  • Diane Reynolds (Paul.)||

    I think discussing the cinematic quality of porn plots should be another thread.

  • ||

    What are we supposed to cram it all in during the one week ENB spends at the AVN?

    What are we supposed to talk about instead? Trump tweets? Manning's bid for the Senate?

  • BestUsedCarSales||

    I think you misunderstand me. The older plots where it was just "I got pizza, extra sausage" then 50 minutes of fucking, was to put a small facsimile of plot as basically a requirement. No one was fooled, but it became the thing to do. As you said, men were less concerned with that overall. (Though I like a good ol' convoluted plot myself.)

    That said, I just dropped a reference to Lemon Thieves because that video makes me laugh.

  • Sal Paradise||

    He fixes the cable?

  • honeygirl||

    I guess that begs the question...Is speech only speech if it is recorded and distributed.

    Someone told me the Supreme Court ruled that porn was art. Anything could be an art, it does not have to be recroded and distributed to be art. Plenty of people paint in the privacy of their own homes. Its still art.

    I think the heart of the issue is the government can't control freelance hookers the way can control a woman doing porn with a manager. I think a lot of it taxes. Think of why alcohol has been legal for years and marijuana only recently. It's a lot easier to grow and distribute marijuana without the government's permission or tax stamp.

  • EscherEnigma||

    ... commerce clause?

    ...yeah, I got nothing.

  • Diane Reynolds (Paul.)||

    During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position, which relied on similar arguments to those used in Lawrence v. Texas, the case that destroyed the country's laws against gay sex.

    One is consenting activity between adults, the other is consenting activity between adults where money changes hands.

  • Diane Reynolds (Paul.)||

    On a serious note, no court is going to declare unconstitutional something that's (mostly) illegal throughout the land. Someone once said that the first job of the system is to protect the system. Imagine the disruption to the system if you suddenly declared an entire enforcement industry null and void.

  • Diane Reynolds (Paul.)||

    Should read "declare the law making something illegal that's (mostly) illegal throughout the land.

  • Zeb||

    I'd like to see it happen just once, if only so I can find out if my imagination gets it right.

  • EscherEnigma||

    What, District of Columbia v. Heller (2008) and Roe v. Wade (1973) don't qualify?

  • Diane Reynolds (Paul.)||

    Heller was close, certainly gun control advocates said so, but if you look at the resulting effects, not a lot has changed. What heller did (arguably) was affirm a right was an individual one. Some legal experts already considered it affirmed, but it just needed restating.

    I'm not making an argument of absolutes here, I'm just skeptical about something that's not implied to be illegal, but has explicit laws against it and entire divisions of police specifically tailored to enforce said law.

  • Marty Comanche||

    no court is going to declare unconstitutional something that's (mostly) illegal throughout the land

    Isn't that what they did with Roe v. Wade and Lawrence v. Texas?

  • EscherEnigma||

    Yes and no. Roe was ahead of the curve, and it was disastrous to the court's perception of impartiality.

    Lawrence was behind the curve and only forced something like 13 states, and even in those states it was rarely enforced.

    Then you get to SSM itself, and what you see is the court torturing itself to not rule in favor when it was considering the Prop 8 case, where it punted on standing. It contrived the Windsor case to again punt the decision. But because of those two cases, by the time Obergfel was in front of the SCOTUS two years later most of the US had already been seeing SSMs performed.

    So yes, occasionally the court will get "ahead of the curve". And it normally ends poorly. Most often they prefer to wait for the tail end and only force the issue for a minority of states.

  • RPGuy16||

    And gay marriage?

  • EscherEnigma||

    When Obergfel v. Hodges (2015) was handed down, something like 15 states still banned it (I might have miscounted). Even before Windsor v. United States (2013) struck down DOMA, the arc was moving fast against marriage bans.

  • DiegoF||

    "Marriage ban" is a rather Orwellian way of referring to the failure to yet adopt an entirely new type of public (in this case government) institution in the history of mankind (or to extend an old one to an entirely novel purpose; doesn't matter). When precisely was gay marriage "banned"?

    (Not an opponent of this 21st-century novelty myself in the slightest, it should be noted, insofar as government marriage is to exist at all.)

  • EscherEnigma||

    Hey, it's not that we're banning women from voting. It's that we're only letting men vote. Calling it a "ban" is so Orwellian.

  • ||

    One is consenting activity between adults, the other is consenting activity between adults where money changes hands.

    When you say it this way actually, the decision actually makes a little bit of sense. Would I want FDIC covering a $250K transaction for sexual pleasure (of one or both parties)? Hell no. Would I want The Fed ensuring a consistent and stable exchange rate with a modest 2% inflation with the price of milk, gasoline, and orgasms between the borders of Mexico and Canada as against those items in Europe? Again, hell no.

    Have all the sex you like, just keep "our" fucking money out of the fucking equation.

  • RPGuy16||

    "One is consenting activity between adults, the other is consenting activity between adults where money changes hands."

    So abortion is only constitutionally protected if it's free. I get it.

  • EscherEnigma||

    Eh, wouldn't be precedent-setting. Many places have decided to ban selling surrogacy services, but allow surrogacy contracts so long as it's not for compensation (though they do allow "gifts").

    Don't get me wrong, I think the ruling is bullshit, but it's hardly precedent-setting.

  • Diane Reynolds (Paul.)||

    To a point, for instance, some in the so-called Pro Choice movement are skeptical of fertility services-- my body, my choice has limits, especially when money is concerned.

  • techgump||

    Classic Statism. You don't have rights, becuase those rights are illegal. Well, that settles it then. And Gov'ts worldwide have no shortage of disdain for Rights to free association. It's a bad joke. Authoritarians are just insane, and never stop. American is on a one way trip to failure, like very other State before it.
    There once was debate about Rights, Freedom, and limited Gov't. Now it's just a debate of whether those previous debates recognized certain rights and freedoms, else Gov't isn't limited.

  • Rich||

    During oral arguments last October, judges from the U.S. Court of Appeals for the 9th Circuit seemed somewhat sympathetic to ESPLERP's position

    *** wink-wink-nudge-nudge ***

  • Beatrix||

    Like when one of the judges asked the attorney representing California why it is illegal to sell something that is legal to give away, to which the attorney hemmed and hawed, then replied, "Because the legislature said so! And they should have that right."

    But even if the sex workers don't have a liberty interest, to live their life without government interference, surely the client who joined the lawsuit does. He isn't making a living by prostitution, he's just having sex. Is having sex illegal? Is having a one-night-stand illegal? No, they are not. But giving someone cash to have sex is. I guess they would rather men use force.

  • Juice||

    ESPLERP gave oral?

  • Juice||

    So someone doesn't have a right to X if X is illegal by legislative fiat. Pretty sure the 9th circuit just ruled that they aren't needed anymore. If the legislature says it's illegal, that's it, nothing more to say about the matter.

  • Adam330||

    You have just summarized rational basis review.

  • Johnimo||

    Excellent analysis of the situation. Question: Why would anyone want to do anything that's illegal? Perhaps the 9th Circuit can tell us not to want anything illegal.

    "Citizens of these United States shall not want nor desire anything prohibited to them by law."

  • Adam330||

    "The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment.""

    I sure hope there's more to this because that's hopelessly circular.

  • Diane Reynolds (Paul.)||

    Again, think of the disruption to the system if you declared prostitution laws unconstitutional. The circular reasoning is just a way to keep the system intact.

  • EscherEnigma||

    Well, only the last part was in quotes, so I suspect it's either bad or uncharitable paraphrasing.

  • Johnimo||

    Thou shall not want that which is not good for you except for chocolate ice cream of course!

  • Old Mexican's Speedos||

    The court also concludes that sex workers' rights to earn a living is not violated by the criminalization of prostitution because prostitution is illegal and "there is no constitutional rights to engage in illegal employment."


    That's some awesome circular argumentation there.

  • Malvolio||

    > "there is no constitutional rights to engage in illegal employment."

    A little circular, isn't it?

  • buybuydandavis||

    Bad idea to bring the federal courts into it. They'll make prostitution a federal crime. Interstate Commerce Clause, you know.

  • Liberty Lover||

    Prostitution will never be legal. It takes all the power away from women (wives and girlfriends) in a relationship.

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