Crazy Constitution Question

[loneranger]

I know this sounds like a naive question, but what reasoning do laws prohibiting prostitution use to avoid constitutional problems? I've looked but I get inundated with info. Maybe a better way to put it would be, if someone tried to challenge the constitutionality of a prostitution law that criminalizes prostitution, where would they begin, or why would they get their ass handed to them in court? I'm assuming it's a slam dunk for the government, but I still would like information. Any references and case law would be appreciated.

[Cpalmson]

Under the 10th Amendment, powers not granted to the Federal government via the Constitution are reserved for the states. In other words, there is no Constitutional prohibition against prostitution other than what the states may do. That is why 49 states have laws against prostitution while Nevada legalizes prostitution (with certain restrictions).

[loneranger]

I see, but I guess what I was getting at was unenumerated rights and a different angle I guess. Take the right to privacy. It was a right that was deduced by the courts right? Basically people have the right to be left the fuck alone right? Isn't what two people do, especially sex a private matter? Or what about making the argument that that sex is a freedom of speech issue. Shit, giving money to political campaigns is considered a freedom of speech issue by the courts, so why not? What could be more expressive than sex? And surely, two people hooking up could be seen as them simply exercising their right to peaceably assemble. Pun intended. I mean, two people wanting to hook up should be none of the government's business regardless of whether money or anything else is exchanged, and while it may not be enumerated, it seems like it's one of those natural laws that's understood to exist. Besides, like I stated, it is, from my point of view definitely an implied right. Who is the government to keep two people from having sex I ask? (consenting adults--of age and sound mind etc.). OK so I guess money being exchanged could invoke the commerce clause or something. Yah? No? Who's with me? Counter-arguments please.

[ShysterJon]

I don't agree with Cpalmson's analysis. States are permitted to enact laws to protect and promote the health, safety, and welfare of their citizens. That has nothing whatsoever to do with the Tenth Amendment, which regards reservation of powers, not grants of powers per se (despite what misinformed Tea Partygoers might claim). The federal government has also enacted laws which have been used to prosecute individuals and enterprises involved in prostitution, such as the Mann Act, which prohibits the interstate transportation of people to engage in prostitution. So this is not an area of power reserved to the states, nor is it one in which the federal government has preempted state action -- rather, it's an area of power used by both the states and the federal government.

Laws prohibiting prostitution are deeply engrained in our system of government and would not be invalidated based on, for example, a free speech challenge. Simply put, one doesn't have the right to engage in conduct which may be a "victimless crime" if the government can state a good reason for making it illegal. Without getting all philosophical, the traditional arguments against prostitution include: it demeans women; it spreads disease, drugs, and alcoholism; it promotes promiscuity and leads to illegitimate children; and it interferes with the sanctity of marriage. But we all know that hobbying is a very wholesome pursuit, much like bobbing for apples, hayrides, and singing Christmas carols.

loneranger: I hear ya, and all the arguments you're making have been made before. You can make them and others until your fingers wither from carpal tunnel syndrome. But your arguments are not going to be received with any degree of interest by any governmental body in the U.S. outside a few places in Nevada and maybe California.

[Mazomaniac]

What Shyster said.

Shyster: Thanks for getting to it first and saving me the typing.

Cheers,
Mazo.

[loneranger]

Originally Posted by ShysterJon

...all the arguments you're making have been made before. You can make them and others until your fingers wither from carpal tunnel syndrome. But your arguments are not going to be received with any degree of interest by any governmental body in the U.S. outside a few places in Nevada and maybe California.

Someone actually tried to use the right to "peaceably assemble"? In a court? ROFL that's awesome. I don't suppose you have any references?

[ShysterJon]

Originally Posted by loneranger

I don't suppose you have any references?

Regulation of prostitution is important to the substantial government interest of protecting citizens' health and safety, is not related to suppression of free expression, and the incidental restriction is no greater than necessary to further a substantial government interest; thus, the Texas prostitution statute does not violate the First Amendment. Young Sun Lee v. State, 681 S.W.2d 656 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd).

[Shackleton]

Originally Posted by ShysterJon

Regulation of prostitution is important to the substantial government interest of protecting citizens' health and safety, is not related to suppression of free expression, and the incidental restriction is no greater than necessary to further a substantial government interest; thus, the Texas prostitution statute does not violate the First Amendment. Young Sun Lee v. State, 681 S.W.2d 656 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd).

I'm a little surprised some lawyer took the time and effort to even make this argument. Especially back in the early 80s. This argument was DOA.

If you wanted to attack the constitutionality of prostitution, then I would think your best line of attack would be the cases and reasoning that have invalidated criminalizing homosexuality and are now being used to argue that prohibition of gay marriage is unconstitutional. My con law is very rusty--I know it's based on the 14th amendment but not sure which clause(s) (due process? equal protection? privileges and immunities?). This area of con law gets to be very complicated and has quite a bit of historical gloss to it over the years. If you wanted to concoct your own criminalizing prostitution is unconstitutional argument for intellectual jollies or this is a law school exam question, I'd start there.

As SJ has suggested, I think the odds of being successful with these arguments at the Supreme Court any time in the foreseeable future is about the same as a meteor crashing through my roof tonight.

[TxBrandy]

To my way of thinking (and you all know how round-a-bout that goes) Lawrence v. Texas and even Roe v. Wade are two arguments pro-prostitution. Roe v. Wade in regards to a woman's right to her own reproductive (sexual) health and of course the privacy thing in Lawrence v. Texas.

If you want to protect citizen's health in regards to STD's, then make sex illegal (except perhaps in cases of long married couples). Money does not cause STD's. Prostitution does not demean women despite society in itself saying it does. Society's attitudes towards these women and their clients are demeaning. Drugs and alcohol abuse are a different issue because you don't have to be a prostitute to be an abuser. I've known more NON-prostitutes who were addicted to these substances than I have working girls. Naturally I could argue further all points but as usual society will turn a deaf ear because they like the little box that they live in.

[TxBrandy]

OH looky looky what I just found. Even though it's in Canada I do believe their basic premise and interpretation of their Canadian constitution is the same as ours in that "... liberty, interest and their right to security of the person as protected under the Canadian Charter of Rights and Freedoms." Sound familiar?

Read the article: http://www.realtruth.org/news/101101-004-crime.html

[Nina Rae]

I know this may sound a little fruity coming from a provider, but I don't think the issue is a woman's right to do anything with her body, OR a person's right to do as he pleases privately in his/her bedroom (i.e. right to privacy). You have to consider the fact that its being sold and, that its often from state to state. The federal and state governments not only have the right to legislate on the sale of things from one place to another, but also have the right to make laws restricting or prohibiting any activity that may endanger a person.

Just sayin'.

[sky_wire]

[Here's my ramble]

The federal government has specific “enumerated” powers, and ONLY those powers. This contrasts with a “police state,” which may enact laws to promote the welfare of its people, so long as the law does not conflict with its state or the federal constitutions. Today, the phrase “police state” has negative connotations, but that’s the proper term for a government not limited to a specific list of powers such as our federal government.

Texas is a police state. It may enact laws rationally related to a legitimate government interest. Prostitution can be outlawed for practically any reason: prevent the spread of STD’s, protect the sanctity of marriage, street walkers interfere with traffic, it’s too difficult to tax, practically anything. The fact that reasonable minds may differ is irrelevant. The only requirement is that the law is rational.

We the people don’t have specific enumerated rights. The Ninth Amendment to the Constitution makes that expressly clear: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In others words, the Bill of Rights is meant to be examples of rights, not a limitation of rights.

[loneranger]

Originally Posted by ShysterJon

Regulation of prostitution is important to the substantial government interest of protecting citizens' health and safety, is not related to suppression of free expression, and the incidental restriction is no greater than necessary to further a substantial government interest; thus, the Texas prostitution statute does not violate the First Amendment. Young Sun Lee v. State, 681 S.W.2d 656 (Tex. App.--Houston [14th Dist.] 1984, pet. ref'd).

Hmm. That case doesn't really challenge the first amendment in the way I was referring. The guy was basically trying to weasel out of his conviction by saying that he was a.) joking and/or b.) just being polite/non-confrontational:

"Appellant then argues that section 43.02(a)(1) ... is constitutionally overbroad, as it suppresses a man's freedom of speech to “jokingly offer a woman a million dollars to have sex with him” or agree to have sex for a fee because he believes “that pretense is the best way to escape a situation.”"

http://caselaw.findlaw.com/tx-court-...s/1226635.html

What I am talking about is an unabashed, balls out, invocation of first amendment protection of sex itself by asserting that sexual intercourse, yes, the very act of sex itself, is legally, technically, speech, and thus is a freedom of expression issue. Crazy. I know. Hence the title of this thread.

[TxBrandy]

Originally Posted by Nina Rae

I know this may sound a little fruity coming from a provider, but I don't think the issue is a woman's right to do anything with her body, OR a person's right to do as he pleases privately in his/her bedroom (i.e. right to privacy). You have to consider the fact that its being sold and, that its often from state to state. The federal and state governments not only have the right to legislate on the sale of things from one place to another, but also have the right to make laws restricting or prohibiting any activity that may endanger a person.

Just sayin'.

Fruity LOL. I think it's both issues. An individuals right to life, liberty, privacy, et al AND the governments responsibilities to 'protect' it's people. I don't believe it has to be one or the other especially if the laws were re-written to allow an individuals right AND protect the community. Canada's original law and the way the law used to be in Rhode Island are examples of this. Hell even Nevada. Prostitution is legal but if you want to do it you have to go to a specific county but at least the individual rights are there while trying to protect against the endangerment of others. Or as the cases in Canada and RI, private prostitution behind closed doors enabled individual rights while still protecting against the endangerment to others.

Sheet, I shouldn't be typing so early.. dam thunderstorm woke me up.

[Sarcastro]

Originally Posted by loneranger

What I am talking about is an unabashed, balls out, invocation of first amendment protection of sex itself by asserting that sexual intercourse, yes, the very act of sex itself, is legally, technically, speech, and thus is a freedom of expression issue. Crazy. I know. Hence the title of this thread.

Sex itself is very legal, and is protected on privacy grounds. See Lawrence v. Texas. But the S.C. distinguishes commercial activity from non-commercial activity, and so commercial sex (e.g., prostitution) may be subject to regulation in the same manner that commercial speech (e.g., advertisements, billboards, nude dancing) may be regulated. See Ohralik v. Ohio State Bar Ass'n.

There's a general recognition that the commercial speech exception to the first amendment is pulled directly from the S.C.'s collective ass, but it's not likely to be overturned anytime soon. Likewise, I suspect, with the commercial sex exception to privacy rights. To conflate one with the other (i.e., "Commercial sex is exactly like commercial speech, and should be likewise protected!") probably wouldn't get you where you want to go.