SAN FRANCISCO—On October 19 at 9 a.m., prominent First Amendment attorney Louis Sirkin will stand up before a panel of judges of the Ninth Circuit Court of Appeals in San Francisco, in an effort to overturn a lower court's decision to summarily dismiss the long-running court case that argues for sexual privacy and against the prohibition via criminalization of sex work.
In March 2015, the Erotic Service Providers Legal Education Research Project (ESPLERP) launched a historic court case, ESPLERP v. Gascon, in U.S. District Court in Oakland challenging California’s anti-prostitution law, Penal Code 647(b), on the grounds that it is unconstitutional. The suit seeks to decriminalize sex work. That case has now reached the Ninth Circuit U.S. Court of Appeals, where it is supported by amicus (friend-of-the-court) briefs filed by more than 30 civil rights and LGBTQ organizations. And on October 19 at 9 a.m., the Ninth Circuit has scheduled to hear oral arguments.
Sirkin is one of the nation's preeminent First Amendment and criminal defense attorneys. Over more than 50 years of practice, Sirkin has consistently defended the free speech and constitutional rights of countless individuals and businesses.
- He achieved national prominence in 1990 when he successfully defended Dennis Barrie, the director of the Contemporary Arts Center in Cincinnati, against obscenity charges for displaying the nude artwork of Robert Mapplethorpe.
- In 2002 he successfully argued before the U.S. Supreme Court in Ashcroft v. Free Speech Coalition that the Child Pornography Prevention Act was unconstitutional.
- In 2005, in United States v. Extreme Associates, he successfully argued that the right to privacy, recently confirmed and strengthened in Lawrence v. Texas, gave individuals the constitutional right to view offending materials in private, a right which cannot be meaningfully exercised without a corresponding right of companies to distribute such materials.
- And in 2008, he was the lead attorney in Reliable Consultants v. Abbott, where the 5th Circuit Court of Appeals found the Texas statute prohibiting the sale and distribution of sex toys to be unconstitutional. In summing up, the court, citing Lawrence v. Texas, declared, “The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.”
“My whole legal career has focused on free speech and privacy,” said Sirkin. “And this case is a natural extension of that work. In Lawrence v. Texas, the Supreme Court made it clear that the government could not use morality as a basis for regulating private consensual sexual activity.”
The defendants in the current case are various California District Attorneys and then California Attorney General Kamala Harris, who has since been replaced in the caption by Xavier Becerra. The state officials' likely oral arguments, based on their legal arguments in their briefs to the Ninth Circuit, and on recent testimony by Xavier Becerra to Congress, appear to be entirely based on moral disapproval, together with a mishmash of lurid but unsubstantiated claims about factors that have nothing to with private behavior between consenting adults.
“A long list of international organizations, including Amnesty International, the World Health Organization, The Lancet, Human Rights Watch, and the UN Global Commission on HIV and the Law, have called for the decriminalization of sex work,” said Maxine Doogan, President of ESPLERP. “They, like us, recognize that anti-prostitution laws criminalize the private lives of consenting adults, impact the human rights of sex workers and their clients, and have very adverse effects on public health and safety. We have the right attorney to argue our case.”
“It’s taken a long time to get here, and we are so grateful to all our supporters and allies who made it possible,” said Claire Alwyne of ESPLERP. “We look forward to our day in court—and another step towards the end of the repressive war on sex.”
ESPLERP v. Gascon is mostly funded by individuals making small contributions, but its opponents have deep pockets—essentially using taxpayer dollars to deny sex workers their rights. Contributions to support the court case can be submitted through the crowd fundraiser LitigateToEmancipate.com.
