The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From State v. Peters, decided Monday by the Washington Court of Appeals (opinion by Judge Stephen J. Dwyer, joined by Judge Linda W.Y. Coburn and Chief Judge David S. Mann):
Charles Peters … was a frequent sex buyer—he engaged sex workers once or twice a week while trying to "limit" his spending on these episodes to $2,400 per month.
Peters located information concerning which sex workers were available for hire and which services they offered on a review website called "The Review Board." Because he wanted to "give something back," Peters also wrote and posted reviews about his own experiences with various sex workers. Peters' reviews included detailed and graphic narratives describing his encounters with the particular sex worker he was reviewing, as well as booking information and an Internet hyperlink to that sex worker's online advertisement.
Peters was also a founding member of another, smaller group of enthusiasts called "The League of Extraordinary Gentlemen." This group focused its collective attention specifically on Korean sex workers in the greater Seattle area. The League began as an e-mail chain but eventually grew into a private discussion board website. Peters served as a moderator to the online discussion board and was able to invite new members into the group. The members of the League also held occasional, informal, in-person meetings, which were often organized by Peters.
Peters regularly helped to connect various actors within the sex trade to one another. Peters introduced independent sex workers who wanted to work with agencies or bookers to pertinent agency representatives or bookers. He recommended specific sex workers and explained the screening process to would-be customers. He made appointments for other customers and "vouched" for new customers to help them pass through screening processes.
Peters was also one of several creators of an advertising website for Korean sex workers in the greater Seattle area, KGirlDelights.com. Peters paid the website hosting fee for KGirlDelights.com and also purchased the .net and .org versions of the same domain name. Agency owners and independent sex workers sent Peters advertisements, which he posted on the website.
In the spring of 2015, the King County Sheriff's Office and the Bellevue Police Department began a joint investigation into the Internet sex trade in the greater Seattle-Bellevue area. Detective Luke Hillman, working undercover as "LucasK1973," created an account on The Review Board and noticed that Peters, under the name "Peter Rabbit," was a frequent poster and appeared to be "kind of a leader." Eventually, Peters invited Detective Hillman to join the League of Extraordinary Gentlemen. This proved unwise.
Peters was ultimately charged with nine counts of promoting prostitution in the second degree….
Peters was convicted, and challenged the conviction on various grounds, including the First Amendment. The Court of Appeals was not persuaded:
Speech that is intended to "incit[e] or produc[e] imminent lawless action and is likely to incite or produce such action" is not protected by the First Amendment. Brandenburg v. Ohio (1969). Our Supreme Court has determined that "the only kind of speech punished" by the prohibition of advancing prostitution, as defined by RCW 9A.88.060, is "[s]peech directed toward the persuasion of another to enter into an illegal arrangement." Because such speech is intended to incite imminent lawless action (i.e., engaging in prostitution) and is likely to do so, it is not protected by the First Amendment.
Peters … [argues that] the speech for which he was prosecuted was not an offer to enter into an illegal arrangement but, rather, "the fact that he wrote detailed positive reviews describing his experiences with prostitutes, and referred others to sex workers upon his recommendation." In support, Peters cites to Hess v. Indiana (1973). In Hess, the Supreme Court determined that a remark by an anti-war protestor could not be punished as disorderly conduct because, as the protestor's words were not directed to anyone in particular, there was no evidence that the protestor's words were intended and likely to produce "imminent disorder." That holding does not aid Peters. Here, by contrast to Hess, Peters' speech—detailed reviews meant to serve as advertisements and referrals to specific sex workers—was intended to and was likely to produce imminent violation of prostitution laws.
Because Peters' speech was both intended to produce and likely to produce unlawful activity, prosecution based on this speech does not violate the First Amendment.
I think this analysis is likely mistaken, because from the facts it appears that he wasn't encourage imminent unlawful activity, which is generally understood as calling for action within hours or at most days; rather, his speech was "advocacy of illegal action at some indefinite future time," which is precisely what Hess says doesn't qualify as incitement.
But it might well be specific enough (because it identifies particular prostitutes) to constitute solicitation of crime, a separate exception recognized by the Court in U.S. v. Williams (2008). Though the boundaries of that exception are unclear, it might well cover such speech; for more, see pp. 993-97 of my The "Speech Integral to Criminal Conduct" Exception article. Encouraging someone to kill a particular person or bomb a particular building may well be solicitation, even if the plan is to do it some time later; likewise for encouraging someone to patronize a particular prostitute. I think that prostitution ought to be legalized, but so long as it's illegal, speech soliciting such transactions can likely be made illegal as well.