Argument Date Set for Appeal in Prostitution Legalization Case

SAN FRANCISCO—It's been more than a year since U.S. District Judge Jeffrey S. White dismissed the lawsuit brought by the Erotic Service Providers Legal Education Research Project (ESPLERP) and three sex workers to make the provision of paid sexual services legal in California, having ruled that the plaintiffs' claimed "liberty interest" guaranteed under the Fourteenth Amendment was "merely sexual or intimate conduct" and that under previous U.S. Supreme Court decisions, fucking a customer isn't "intimate" enough to trigger constitutional liberty protections nor the "strict scrutiny" analysis that would likely lead to overturning the law. AVN analyzed the judge's ruling here.

But the plaintiffs weren't about to give up, and in January of 2017, attorneys H. Louis Sirkin and D. Gil Sperlein filed an appeal brief to the Ninth Circuit Court of Appeals, which begins, "Just as it did in the District Court below, the State here again misapprehends the fundamental liberty interest at issue in this case. The liberty interest at stake is far greater than just 'a fundamental right to engage in prostitution' as the State claims. ... In truth, this case is about consenting adults. It is about the right of those consenting adults to be free from the government intruding into their private, sexual lives." A more detailed account of the appellants' arguments, which draw on several high-profile Supreme Court decisions such as Lawrence v. Texas and Reliable Consultants v. Earle, can be found here.

The ESPLERP case has attracted a lot of attention from the free speech and sexual freedom community, and the Ninth Circuit docket reflects that amicus briefs supporting ESPLERP have been filed by such organizations as the Lambda Legal Defense and Education Fund, the American Civil Liberties Union, the First Amendment Lawyers Association, and the Woodhull Freedom Foundation. Amicus briefs opposing ESPLERP were filed by several familiar sex-repressive groups including the National Center on Sexual Exploitation, Covenant House California, Freedom From Exploitation, Coalition Against Trafficking in Women, Equality NOW, Demand Abolition, Chicago Alliance Against Sexual Exploitation, Wichita State University Center for Combating Human Trafficking and several others. The appellees' official reply brief, joined by several of the other defendants, was authored by Kamala D. Harris, one of the original defendants and then-Attorney General of California, who is now a U.S. Senator. It is unknown what the current Attorney General, Xavier Becerra, thinks of the case.

Now, the Ninth Circuit has released its oral argument calendar for October 2017, and the case of Erotic Service Providers Legal Education Research Project, et al v. George Gascon, District Attorney of the City and County of San Francisco, et al, is on it. On October 19, a three-judge panel of the Ninth Circuit will hear argument from both sides, possibly including attorneys for some amici, on the issue of "The Erotic Service Provider Legal Education and Research Project appeals from the district court's dismissal of its action challenging the constitutionality of Cal. Penal Code § 547(b), which criminalizes the commercial exchange of sexual activity." The argument will begin sometime shortly after 9 a.m. in Room 307 of the James R. Browning U.S. Courthouse, 95 Seventh Street, San Francisco 94103. Just 20 minutes has been allotted for the argument.