Sexual Privacy, Right to Earn Living at Heart of ESPLER’s Suit

Rhett Pardon

SAN FRANCISCO — ESPLER’s lawsuit that seeks to overturn California’s 54-year-old prostitution statute contends that the law breaks both the federal and state constitutions.

In particular the suit, filed this afternoon at San Francisco federal court, contends that Section 647(b) of the California Penal Code violates the 1st Amendment involving free speech and freedom to associate, as well as the 14th Amendment in relation to the substantive due process right to earn a living and sexual privacy.

“By this complaint, plaintiffs challenge the constitutionality of statutes (both on their face and as they may be applied to Plaintiffs) criminalizing the commercial exchange of consensual, adult sexual activity,” the suit said. “Plaintiffs seek a declaration that the laws themselves are unconstitutional, as well as preliminary and permanent injunctive relief prohibiting their enforcement.”

ESPLER’s suit seeks a restraining order over enforcement of the statute throughout the state and names as defendants California Attorney General Kamala Harris, San Francisco District Attorney George Gascón, Marin County District Attorney Edward S. Berberian Jr., Alameda County District Attorney Nancy O’Malley and Sonoma County District Attorney Jill Ravitch.

ESPLER — formally known as the Erotic Service Provider Legal, Education and Research Project — is a San Francisco nonprofit that describes itself as an advocate of sexual privacy that educates the public about the harms inherent in the current prohibition and criminalization of prostitution.  

In the suit, ESPLER is representing K.L.E.S., who at times has been licensed to provide sexual activity for hire to consenting adults in Nevada and was arrested on prostitution charges in 2007 in California; J.B., a resident of Sonoma County who previously worked in the erotic service industry in the San Francisco Bay area, performing activities that may be considered prostitution under state law; and John Doe, a male with a disability who desires to be able to procure the services of an erotic service provider.

“Plaintiffs each fear that they may be prosecuted by the district attorneys and the attorney general under California’s prostitution or solicitation laws if they do engage in sexual activity for hire, particularly in light of their participation in this lawsuit,” the suit said.

“Plaintiffs have refrained from engaging in voluntary, consensual sexual acts that may be considered prostitution or solicitation … for the specific reason that they fear prosecution.”

In ESPLER’s contention that the state is violating the 14thAmendment with the statute over substantive due process right to sexual privacy, the group said that “the rights of adults to engage in consensual, private sexual activity, even for compensation, is a fundamental liberty interest.”

“That right is one that is, objectively speaking, deeply rooted in this nation’s history and tradition and one that is implicit in the concept of ordered liberty. Therefore, any regulation regarding the commercial exchange of private sexual activity is subject to strict scrutiny,” the suit said.

“There is not even a legitimate governmental interest which could possibly justify California’s prostitution laws. The government has no interest in regulating such activities so long as the activities occur in private amongst consenting adults in furtherance of their liberty interest in their own sexual behavior.

“Furthermore, the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting its practice.”

Many persons in the state desire to engage in the commercial exchange of sex but refrain from doing so for fear of being arrested and prosecuted, the group said in another 14thAmendment claim for violation.

“Alternatively, many persons, including some of the plaintiffs herein, have in the past engaged in the commercial exchange of sex despite the threats of criminal prosecution because this profession provides them with a livelihood and the ability to support themselves and/or their families,” the suit said. “They would like to do so in the future but for California’s prohibition.”

ESPLER also said that the statute makes pure speech a criminal activity in violation of the 1st Amendment.

“The statute … utilizes speech to make an otherwise lawful act (engaging in sexual activity in private or even agreeing to engage in sexual activity at some point in the future) a crime based solely on the speaker’s message and the content of his or her speech,” the suit said.

“The government can assert no compelling or substantial interest in justifying such a regulation on speech, particularly where that speech is communicated privately to only consenting adults. California’s prohibition on speech intended to convey a desire or intent to offer or exchange sexual activity for money does not directly advance any compelling governmental interest or even a substantial state interest.”

ESPLER's suit seeks declaratory and injunctive relief and was filed by two adult entertainment industry attorneys — Gill Sperlein and H. Louis Sirkin — on behalf of the group at U.S. District Court in San Francisco.

ESPLER is seeking funding for the lawsuit. A video explaining the suit and its funding needs can be viewed here.

View ESPLER's lawsuit