ESPLERP Attorney Explains Why Federal Prostitution Suit Dropped

SAN FRANCISCO—In a telephone press conference held earlier today, Erotic Service Providers Legal, Education and Research Project (ESPLERP) head Maxine Doogan, together with prominent First Amendment attorney H. Louis Sirkin, the organization's lead attorney in its federal lawsuit to remove California's anti-prostitution laws, spoke with journalists about the reasining behind their decision not to take their lawsuit, ESPLERP v. Gascon, to the U.S. Supreme Court after having been dealt a defeat at the Ninth Circuit level.

"We evaluated the situation with the Supreme Court, and I think our strategy changed a bit with the announcement of the resignation of Justice Kennedy that came at the end of June," Sirkin began. "All along, we had been looking at the California Constitution, because obviously you have Article 1 Section 1 that has a constitutional right of privacy which doesn't exist—there's no specific wording that says a right of privacy in the U.S. Constitution or the Bill of Rights; there is in California, and there is also a due process clause in the state of California that talks about the right to life, liberty and the pursuit of happiness and whatever, and we believe that's a fundamental right. So when Justice Kennedy resigned, it was our decision after discussions, we felt, if we go to the Supreme Court... we were concerned about how the court would split, and we felt that the leader of individual liberty interest over the years has been Justice Kennedy, and he authored Lawrence v. Texas, and we felt that without him, it might be difficult, and we were concerned about whether there would be any danger in taking a case arguing substantive due process back before the court with the present makeup and what we believed the makeup may be, that we could have done damage to a lot of other areas with an adverse decision by the Supreme Court.

"Without Kennedy and being able to persuade him our way, we were afraid there may be some changes in some of the brilliant things that he had written in the past dealing with substantive due process, and so then we started to look for alternatives, and we started taking a look back again at the California Constitution and felt that this may be the place to go. We can start over; we've learned some lessons and in addition to the substantive due process issue, we can bring in this right of privacy that California provides, and we felt that would be a better battleground to turn to rather than staying and trying to get a petition for cert granted, number one; number two, if they didn't grant the petition for cert, people always make negative inferences from that and say that, 'Well, they didn't take that case because they agreed with the Ninth Circuit'."

As AVN previously noted, the Ninth Circuit failed to tackle the question of prostitution legalization head-on but instead relied on its own adverse decision in the 1988 case of IDK, Inc. v. Clark County, which was decided prior to Lawrence and implicated Nevada's regulations and licensing of escort services. But a lawsuit brought at the California state level, which would undoubtedly rely heavily on the Lawrence decision, could also rely on the liberties guaranteed by California's Constitution.

Sirkin made clear that ESPLERP is not seeking to create a situation for prostitutes similar to Nevada's, where prostitution is only legal in licensed brothels.

"We're looking at letting each individual make their own decision as to an occupational profession that they'd like to go into, so I think we're different from Nevada," Sirkin said. "That prostitution is accepted in Nevada may be helpful in trying to persuade the courts in California, but we think this is a fundamental liberty interest and it's a fundamental right."

Asked if one of his concerns was that another Trump appointee to the high court might put prior decisions like Lawrence, whose main issue involved consensual sodomy, in jeopardy, Sirkin replied, "Absolutely. We're afraid they'll take a look at same-sex marriage and we're afraid they'll take a look at pro-choice. They may even take a look at Griswold [v. Connecticut, which legalized birth control] again! They may go back to 'sex is only for procreation.' Remember, that was the position of the state of Texas and Ted Cruz's position in the Reliable Consultants [case]; their justification for prohibiting the sale of sex devices was that people shouldn't enjoy human sexuality; it's only for the purpose of procreating... We don't know what Washington's position on that might be."

For her part, Doogan expressed dismay that the plaintiffs in the recently filed challenge to the federal FOSTA law—among them, the Woodhull Freedom Foundation and Human Rights Watch—had not supported ESPLERP's Ninth Circuit case, noting, "It looks like there might be a problem with standing; I don't know why they didn't bring in any of the legal brothel workers in Nevada who do have standing and whose livelihoods are being affected by their lack of First Amendment right to advertise... Prostitution is not criminalized at the federal level, and FOSTA/SESTA criminalized the communication, the advertising, so we tried to get online websites like the Eros Guide, Backpage, all of these sites to get into the fight that we're in, which is to overturn the anti-prostitution laws at the state level... I think the problem at the federal level is, they're looking to criminalize all the activities around the 'illegal' act of prostitution."

"Craigslist and Backpage would have had no difficulty if prostitution were a lawful occupation or was not a criminal activity," Sirkin added. "Their advertising would be constitutionally protected under the First Amendment and there wouldn't be the problems that developed, but they didn't seem to want to help us."

While Doogan expressed the opinion, based on her conversation with state lawmakers, that there was a sense in Sacramento that prostitution should be legal, she didn't expect to get any overt support from the politicians.

"I think legislators think in terms of regulation schemes similar to medical marijuana and its recent legalization, so part of the problem with our community is, you want community members at the table in talks about regulation schemes, that there shouldn't be any regulation about us without us, but the real barrier will be getting the workers to the table, and that's going to have to involve some antidiscrimination legislation," Doogan said. "You have to have a clear path for the workers to come forward to participate in crafting regulation schemes if in fact you want the workers following that regulation scheme, because under the current regulation scheme, which is a complete ban at the state level, the workers are defying that ban, obviously, so it makes sense that for people to be able to come forward and have a clear way to participate without worrying about their child custody, without worried about their housing. There has to be some antidiscrimination legislation first."

While there has not been any polling on a statewide level regarding public opinion on prostitution legalization, Domina Elle, an ESPLERP Board member, noted that, "Both myself and Maxine have done petitions, and I know petitions are not polls, but we've got something like 40,000 signatures between California and Colorado, where people are saying 'decriminalize it.'"

A poll of 900 voters was done in Alaska in 2016 regarding the arrest of prostitutes, and according to Doogan, "almost 60 percent overall, and in some areas 90 percent ... supported not arresting people for prostitution."

One thing the pro-legalization activists wanted to make clear was that they do not support non-consensual or underage sex work.

"In our introductory remarks to the Ninth Circuit, we said we're not here to support sex trafficking, we're not supporting child pornography and we're not supporting using children in prostitution or sex trafficking," Sirkin stated. "Those are unlawful activities. There are plenty of laws to take care of those. We're talking about people who voluntarily, consensually want to be in this occupation, and they in this country should have the right to make that choice and to participate and be a wage earner publicly, openly and be able to advertise just like everybody else. ... Craigslist and Backpage would have had no difficulty if prostitution were a lawful occupation or was not a criminal activity. The advertising would be constitutionally protected under the First Amendment and there wouldn't be the problems that developed."

While none of the paticipants in the press conference was willing to go on record as to when a state court challenge to California's prostitution laws would be filed, they did leave journalists with the unmistakeable impression that one would be ... and soon.

"We got pretty decent publicity from the litigation in the Ninth Circuit, the reports and the people that followed it, and the approach we were taking seemed to stir a lot of positive discussion," Sirkin noted. "There was an article a year or so ago in The New York Times, and subsequent to that, there have been a lot of writings that have said that the position that we've been taking seems to be sensible, and seems to be intellectually correct, so we want to follow through with that before people forget that."

Pictured, l-r: H. Louis Sirkin and Maxine Doogan exiting a Ninth Circuit hearing on ESPLERP v. Gascon