ESPREP Update info leading to hearing on various State and County Attorneys in CA Motion to Dismiss to be held August 7th at 9AM in North California Federal Court in San Francisco.
From the motions and counter answers it is a big battle of the very good attorney's on both sides.
In response to ESPREPs Response to States motion to dismiss, The California Attorneys filed a 16 page response in June 2015. This is available on the ESPREP site but I thought helpful to address main points and some comments:
They open with:
"This case is not about liberty, the right to be let alone, or intrusion into private lives. It is not even about sex. It is about commerce – specifically the ugly commerce of prostitution. No American judicial authority supports a constitutional right to engage in it. The Court should dismiss the complaint without leave to amend."
They then go into great detail with cites of their legal arguments opposing the ESPREP answer in response to the Calf AG's Motion to dismiss.
California argument highlights:
I. NEITHER THE FOURTEENTH AMENDMENT NOR LAWRENCE V. TEXAS PRO CONSTITUTIONAL RIGHT TO ENGAGE IN PROSTITUTION.
II. PROSTITUTION IS NOT A NECESSARY COMPONENT OF CONSTITUTIONALLY PROTECTED PRIVATE SEXUAL ACTIVITY.
III. PLAINTIFFS’ FREEDOM OF INTIMATE ASSOCIATION CLAIM IS SUBSUMED WITHIN THEIR MERITLESS SUBSTANTIVE DUE PROCESS CLAIM.
IV. PLAINTIFFS’ FREE SPEECH AND PROPERTY RIGHTS CLAIMS FAIL BECAUSE THEY REST ON PLAINTIFF’S MERITLESS SUBSTANTIVE DUE PROCESS CLAIMS.
V. PLAINTIFFS’ AS-APPLIED CHALLENGE FAILS .
VI. THE STATUTE IS AN APPROPRIATE LEGISLATIVE CHOICE A. Plaintiffs’ Challenge Does Not Raise Factual Issues and May Be Disposed of in this Motion.
C. The Statute Advances Legitimate and Important State Interests.
(Dave notes this section is important if there are any religious defenses raised in other cases involving Tantra or spiritual beliefs since if the Arizona Religious Exemption Act is argued State's "compelling interest" is the key issue. In the case of the Phoenix Goddess Temple that defense has been excluded from the trial since States Motion to Exclude was not challenged by any defendants and therefore, granted.)
Back to Calf County Attorneys filing:
Plaintiffs do not challenge the proposition that prostitution is extremely dangerous for prostitutes, or the link between prostitution and human trafficking, murder, rape and other crimes. Rather, they argue that this is not sufficient justification for the prostitution laws because those independent crimes can be separately prosecuted and punished. Opposition at 12; see Opening Brief at 11-13. Punishing a crime after the fact is a poor substitute for deterrence. To take one example, a rape victim’s injuries and trauma are not erased when the rapist has been convicted and sentenced to prison. The State has a legitimate and compelling interest in preventing crime, not just in punishing it. United States v. Salerno, 481 U.S. 739, 748, 749-50 (1987). Cf. Int’l Bhd. of Elec. Workers, Local 1245 v. Skinner, 914 F.2d 1454, 1459-60 (9th Cir. 1990) (agency did not act arbitrarily and capriciously in requiring random drug testing of pipeline workers rather than rely on post-accident testing, which is “essentially non-preventive, whereas a key aim of random testing is deterrence.”).
Similarly, sexually transmitted diseases are a public health issue that the State has an interest in preventing. Prostitution has a potential to spread sexually transmitted disease in a way that other sexual conduct does not. See United States v. Carter, 266 F.3d 1089 (9th Cir. 2001) (prostitution involves a serious potential risk to the prostitute of contracting a sexually transmitted disease).
Finally, Plaintiffs argue that the State’s interest in deterring commodification of sex is code for finding the practice of prostitution immoral, and that is prohibited under Lawrence. Opposition at 12-13. The Ninth Circuit, in a post-Lawrence decision, concluded otherwise, and held that the state’s “interest in preventing the commodification of sex is substantial.” Coyote Publ’g, Inc. v. Miller, 598 F.3d 592, 604 (9th Cir. 2010). See Dave's notes later on this case).
CONCLUSION
For reasons set forth in this brief and the Attorney Generals opening brief, the Court should dismiss the complaint without leave to amend.
Entire Reply is at
http://esplerp.org/wp-content/upload...2015143256.pdf
Original ESPLERP Federal Filing and other information most of which I have previously report on is at
http://esplerp.org/
Dave notes:
The mostly likely possible outcome of the hearing Aug 7th:
1) Hearing continued as is often the case.
2) Court denies Calf motion to dismiss and the case moves forward.
3) Court approves Calf motion to dismiss. In this case ESPREP has said it will file an appeal to the 9th circuit. This is where the case will ultimately wind up even if the Federal District Court case continues to trial or a ruling. The losing side will probably appeal.
If the District Court dismisses the case it simply with get to the 9th Circuit faster.
This should be a major "landmark" case just as was Lawrence vs Texas. A win by ESPREP in the 9th Circuit does not have to be followed by other circuit courts so the case could wind up seeking cert to the U.S. Supreme Court.
If ESPREP wins the California prostitution law will be invalid. Arizona and many Western states are in the 9th Circuit and AZ prostitution law is very similar to California. It would make it easy for any Arizona prostitution cases to be challenged on the same grounds.
============================== =====
Dave notes: The Coyote Newspaper case (arising from Shady Lady Ranch advertising) was a challenge to the Nevada statute that restricts commercial advertising of legal brothels. The Ninth Circuit held that severe restrictions on brothel advertising, even in counties where brothels are legal, are valid under the First Amendment.
While this probably doesn't help the prostitution argument, there is an interesting legal view published in the Golden State University Law Review in 2012, that the 9th Circuit decision only applies to licensed brothels and not unlicensed and the relevant statute that applies to unlicensed is overly broad since it would cover non-commercial advertising as well as commercial. Detail of argument at
http://digitalcommons.law.ggu.edu/cg...ontext=ggulrev
Bad Part that ESPREP attorneys may have to overcome - In this case the 9th Circuit ruled in the 2010 Coyote case:
The Ninth Circuit first acknowledged that prostitution in some counties in Nevada was a legal activity and the speech was not misleading.
It then found that Nevada has a substantial state interest in support of advertising restrictions. According to the Ninth Circuit, the deeply rooted notion that “[t]here are, in a civilized society, some things that money cannot buy,” coupled with the prevention of exploitation of women and children, justified Nevada’s advertising restrictions.
The court also noted that advertising restrictions “directly and materially advance” Nevada’s interest in limiting the commodification of sex because they eliminate the public’s exposure and reduce the market demand for it. Finally, the court concluded that the restrictions on advertising were no more extensive than necessary to meet Nevada’s interest. Thus, the Ninth Circuit found that section 201.430(1) met the Central Hudson test and therefore did not violate the First Amendment.
============================== =====
Vision of ESPREP which may depend on winning this case:
We envision a world of sexual liberty where our “sexual privacy rights”, as defined under federal and state constitutional, criminal, and civil law, includes the right of adults to partake in consensual sex regardless of status or circumstance including marital status, sexual orientation, sexual preference, sexual identity, or remuneration; and, regardless of such status or circumstance, adults are able to partake in sex under equal protection of the law, and free from discrimination.
============================== =====
Lots of media reports on California TV, Radio and national publications about "Women Sue to Make Prostitution Legal in California" at
http://esplerp.org/media/articles/
============================== =====
This all takes MONEY to pay attorneys and costs for this fight. Donations can be made to ESPLERP which is a 501(c)3 tax deductible organization as Erotic Service Providers Legal Education and Research Project. There are links to donate on most of the pages at right part of pages at
http://esplerp.org/
Update on Prostitution Law challenge in Federal Court
