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9th Circuit oral argument Highlights - challenge of prostitution law
10-19-2017, 12:45 PM (This post was last modified: 10-20-2017 01:51 PM by davephx.)
Post: #1
9th Circuit oral argument Highlights - challenge of prostitution law
9th Circuit oral argument Highlights - challenge of prostitution law 10/19/2017
ESPLERP vs Gascon (16-15927)

Great arguments from judges both ways challenging both our (ESPLERP) attorney - the famous Henry Sirkin who has won many constitutional cases - vs. the attorney representing the California Attorney General. The three-judge panel vigorously challenged both sides.

Sirkin up first:
Great opening that this case has nothing to do with sex trafficking, drugs, pimps and only about consenting adults referencing Lawrence v Texas, etc.

Judge Challenged: Under Lawrence, the judges cited the "enduring personal relationship" of the couple. Isn't that very different from a commercial prostitution relationship? Another judge pointed out that Lawrence said it was not about prostitution.

Sirkin: Argued that is a "one night stand" an enduring relationship but not illegal. No Lawrence wasn't about prostitution because the facts were not about prostitution, but the same argument of in private consenting adults should apply to commercial sex just like one night stand

The state argues IDK case controls over Lawrence that the key fundamental right is related to the personal relationship, not the sex act.

Judge asks Sirkin:
If husband and wife gamble in their private home should that be legal? Sirkin argues how different but a bit weak?

Overall, Sirkin did a great job under considerable challenges to our position by all three judges.

The state was also asked probing questions, and attorney for State of CA in my view was not very effective.

Judge asks CA attorney: Why what is legal to give away why not for money? She argues - because of the evils that go along with prostitution. Lists the evils of street prostitution. Judge points out that the CA law 647b doesn't distinguish between the street and private.

CA Attorney: ADMITTED may argue it is legal if in the privacy of own home!!! Not street (most of the evils and public nuisance factors mostly street related).

Again back to Lawrence PRIVATE liberty - State argues it is the payment that should be illegal with no "enduring personal relationship" back to IDK case.

CA brings up Kennedy argument not about prostitution in Lawrence does not overturn prior IDK case so should look at IDK case since no personal bonds so not deserving constitutional protections.

Again relationship vs. conduct discussed.

Judge asks if paying for sex argument shows no personal relationship but shouldn't that be decided at trial - if arrested - not the case here.

Judge: What if they became good friends because they were paid?

CA Attorney: yes could develop and be legal but not lawful for the commercial transaction. Attorney seems a bit lost in this challenge. Argues no fundamental right to have a commercial transaction where sex is being sold. Back to states interest to avoid trafficking, illegal drug use, pimps, etc. is a State interest to make commercial sex illegal.

Judge: But all those points could be made under heightened scrutiny. CA attorney is not doing well in my view on many challenges by judges.

CA argues STD issues, abuse of women, drugs, etc. The impact of prostitution on the various ills of society. There doesn't have to be a direct connection between the ills but just a reasonable basis for state interest to make prostitution illegal. The legislation of every state other than isolate counties in NV agrees with the ills. Should be up to legislators to make legal.

Judge: but isn't this an issue for a trial court to determine?
(Note the case got to the 9th Circuit after the Federal District Court ruled against us and ESPLERP (our side) appealed to the 9th circuit.

Judge asks Sirkin: Then private adult incest would also be legal?
Attorney tries to argue differently but judge challenges with cases related to incest that is private and consensual. Sirkin cannot give any case law to support why prostitution is different from incest.

Sirkin discusses Witt case, but judge argues the difference between conduct and enduring relationships.

Sirkin: All things about std's etc. rational basis could happen by being raped in marriage, drugs, std's so only way to prevent is to make illegal even in marriage.

Dave notes:
This is from scratch notes from fast moving 37-minute hearing and is not a transcript and is subject to fast writing error!

The key issue is whether prostitution is a fundamental right vs. passes a rational basis test including as judge mentioned other ways the State could regulate the evil effects without blanket making private sexwork illegal.

Both sides made good arguments although Sirkin was much better prepared in my bias view. Court has no time limit to render a decision.

The recorded hearing is available at https://www.ca9.uscourts.gov/media/view_...0000012398
Skip to about the 2-hour mark, since four other cases were heard before the ESPLERP case. ESPLERP stands for Erotic Service Providers Legal Education and Research Project

From ESPLERP:
Fundraising
We are now moving into the next crucial phase of our fundraising - so we can meet the financial obligations associated with our Appeal. We have started a new fundraiser at https://www.crowdrise.com/o/en/team/liti...iceprovide aiming to raise $30,000. Every contribution, no matter how small, helps.

There is also a Facebook fundraiser, and so far, we've received $733 of the $2000 goal - see https://www.facebook.com/donate/13067956...urce=feed.

Contribute online at litigatetoemancipate.com
Hit the PayPal button at http://esplerp.org
Mail checks to ESPLERP, 2261 Market Street # 548, San Francisco, CA

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10-21-2017, 12:24 AM (This post was last modified: 10-21-2017 12:25 AM by davephx.)
Post: #2
RE: 9th Circuit oral argument Highlights - challenge of prostitution law
i should add even if we win at the 9th Circuit the likely result is only that it will be remanded back to the Federal District Court to rehear or a full trial. The case got to the 9th Circuit on appeal from the summary judgment against us (ESLPERP) at the Federal District Court level.

The hearing is getting a lot of media attention in California - for example, good summary at http://www.sfgate.com/news/article/Appea...292093.php

AZ law is very similar to California prostitution law and we are also in the 9th district.

If "we" lose back in Federal Court (if we win this round at the 9th) any final decision by District could again be appealed to the 9th. So this will be tied up in the courts for years.

In Canada, it took over 10 years to get their Supreme Court decision declaring the law against incalls (bawdy houses) unconstitutional - outcall had always been legal. The key for why prostitution laws were unconstitutional was "harm reduction". It was clear to the Supreme Court the illegal status of incalls, etc. created harm. Therefore under the Charter of Rights of Canada, prostitution laws were struck down.

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10-21-2017, 12:41 AM
Post: #3
RE: 9th Circuit oral argument Highlights - challenge of prostitution law
From a canadian board where I am very active and posted this:
"...great job on the summary notes makes it easier for outsiders like me to follow. Thanks! Personally have to laugh at the arguments which bring up the "evils" of prostitution when these so called evils are largely because the activity is illegal."

Promoting Intimacy and Positive Sexuality with honesty and integrity
Esalen massage - integrating with one another in love -"heartfelt touch"
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