No First Amendment Right to Prostitution

In California, soliciting or engaging in prostitution is classified as “disorderly conduct,” a misdemeanor.

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(Katarzyna Bialasiewicz, Getty Images)

A group called Erotic Service Provider Legal Education and Research Project (referred to as ESP), sued California, challenging this law.  ESP argued that the solicitation of prostitution is “speech,” and the statute unconstitutionally criminalizes it—violating the First Amendment.  The ESP argued that the solicitation of prostitution should be considered protected commercial speech.  Spoiler alert: the ESP was not successful.

Commercial speech, though less protected than other forms, is still constitutionally protected speech free from unwarranted government regulation.  However, to be treated as such, the speech must concern lawful activity.  In light of the fact that 49 of the 50 states have outlawed all sales of sexual services (Nevada allows limited prostitution)—and since prostitution has been continuously outlawed in California since 1872—the Ninth Circuit ruled that the solicitation of prostitution did not concern a lawful activity and was therefore not afforded First Amendment protection.  The Court also found that the criminalization of prostitution promotes the government’s interest in public health, safety, and welfare, and that the reduction of demand for prostitution via criminalization is a constitutionally acceptable way to advance those interests.

Case: Erotic Serv. Provider Legal Edu. and Res. Proj. v. Gascon, No. 16-15927 (9th Cir. Jan. 17, 2018) (opinion here)

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