On January 17th, the United States Court of Appeals for the Ninth Circuit unanimously affirmed that prostitution is not a constitutionally protected fundamental right. On the contrary, the Court ruled it is a commercial activity fraught with dangers that the state has a “substantial interest” in preventing.
To provide some background on this monumental case: In 2003, the Supreme Court case Lawerence v. Texas, the justices invalidated every remaining sodomy law in the United States, rendering the country’s archaic bans on same-sex sexual activity unconstitutional. They established that “intimate conduct” between consenting adults was a fundamental right protected by the Constitution’s due process clauses, the high court found.
The Erotic Service Provider Legal Education and Research Project, or ESPLERP, filed a lawsuit in federal court in 2015 claiming that, under the Supreme Court’s 2003 ruling, California’s anti-prostitution law violates the constitutional rights of prostitutes and clients to engage in consensual sexual activity or "intimate conduct". They even went so far as to say that the ruling barred laws criminalizing prostitution among adults and that paying for sex was a form of protected commercial speech.
This was definitely an original argument but thankfully the court did not find it convincing and they explained that prostitution was not what justices had in mind when they declared "intimate conduct" a fundamental right of Americans in 2003.
“There is no constitutional rights to engage in illegal employment, namely, prostitution,” Judge Jane A. Restani wrote. The state had good reasons for outlawing prostitution, including discouraging human trafficking and violence against women, and the law was tailored to address those reasons, Restani continued.
The court finally ruling was the relationship between a prostitute and a client doesn’t suggest anything intimate. It’s short, it’s transactional, and therefore it’s not protected as “free association” under the Constitution. Nor does prostitution qualify as free speech. California’s law “does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.”
When this case was being argued and ended in the 9th circuit of appeals NCOSE put in a lot of work and effort to submit an Amicus Brief that explained how prostitution is inherently dehumanizing and harmful and it was vital for the Ninth Circuit to uphold the lower court’s decision. We take pride in the work that we did to inform the judges and help them make the correct decision in upholding the law because "sexual exploitation is nobody's job". You can read more about NCOSE's work on the case here.
At a time when the work to end sexual exploitation can become discouraging this unanimous decision by the 9th Circuit of Appeals provided those in the movement renewed hope for the future and vigor to continue to fight for dignity and freedom for everyone.