This essay first appeared in Cliterati on March 8th; I have modified it slightly to fit the format of this blog.
The big news last month was that the Erotic Service Providers Legal, Educational and Research Project (ESPLERP) has filed a lawsuit which aims to overturn prostitution laws in California:
…All of the plaintiffs are listed anonymously, using initials and a pseudonym. Three are former prostitutes who hope to work as prostitutes again in the Northern District of California, but fear arrest and prosecution. The fourth plaintiff, John Doe, is a disabled man who wishes to hire prostitutes…they claim that enforcement of prostitution laws violates their constitutional rights to privacy, free speech, substantive due process right to earn a living, and freedom of association. They are asking for a declaration that California’s prostitution statute is unconstitutional, an order prohibiting the defendants from enforcing the prostitution statute, and attorney fees…the case will inevitably be contested until it reaches the US Ninth Circuit Court of Appeals…[a favorable decision] could [then] be applied to other states’ prostitution statutes through future cases under the Ninth Circuit’s jurisdiction, which also includes Alaska, Montana, Idaho, Hawaii, Nevada, Oregon, and Washington state…[ESPLERP founder Maxine] Doogan [says] “Our case is being litigated because [California’s prostitution law] discriminates against our free speech, our right to negotiate for our own labor and our own safe work conditions, our right to associate with each other, our right to equal protection under the law”…California courts have ruled that people can also be charged with prostitution for their words alone…[Gill] Sperlein, the plaintiffs’ attorney…[says that] in Lawrence v. Texas, which overturned a law criminalizing anal sex in 2003…the justices…[said that “criminalizing anal sex] was wrong, it was wrong when it was originally ruled on, it is wrong now, it’s always been wrong. In that case they said that the government could not use morality as a basis for regulating private consensual sexual activity”…
I fully agree with the plaintiffs’ argument that a court challenge is the proper strategy to pursue for changing the law. As I wrote in “Challenge“,
…criminalization of sex work in the United States will only end by judicial fiat…History has demonstrated over and over again that the vast majority of politicians are self-centered, morally retarded pigs whose actions are never determined by what is right, but only by what will get them re-elected; they can be counted on never to defend the rights of the weak against the powerful until it becomes politically popular for them to do so…The rights to birth control, to abortion, to non-vaginal sex, to view sexual materials, etc have all been won by court decisions; had these things been left to politicians they would all still be illegal…Furthermore, it would be absolutely impossible to stop every little tin god with a title in every state, county and city in the US from working to enact laws favored by loudmouthed busybodies and designed to abrogate the rights of oppressed minorities and docile, silent majorities alike. The only way to stop politicians from gaining power and money at the expense of those they criminalize is for a more powerful entity to prevent them from doing so, and that generally requires the decision of a higher-level court…the US Supreme Court can quash the power-madness of any politician, even the President and Congress…
Of course, legal battles are expensive, and the easiest way for governments to win them is simply to outlast their opponents by delaying the proceedings with countless nuisance filings and other obstructions. So the only way for those mounting such battles to succeed is to have a dependable source of funding, and the anti-sex forces of our time have worked hard to block all the usual funding sources and non-profit organizations that might help. The ESPLERP challenge was funded via a GoFundMe campaign, but mere hours after the organization launched a new campaign to secure more funds for future stages of the process, GoFundMe suddenly changed its policies to choke off that stream:
At 2:37 on March 5, 2015 GoFundMe contacted our group to say they had just changed their terms of use and had to cancel our campaign which had raised over $520. We had [previously] raised $30,000 using [the same] site…Not only did they cancel our campaign…they deleted our account altogether…For now, the best way to contribute is to send a check or money order to ESPLERP 2261 Market St. # 548 San Francisco, Ca. 94114…
How very convenient. Every American lawyer worth his salt understands that prostitution laws are legally indefensible under the US Constitution; every solid challenge must therefore be stopped (by dismissal of the charges, exhaustion of the challengers’ funds or any other tactic) by any means necessary lest a precedent be set that will overturn these oppressive laws throughout the land. Coyote vs Roberts ended in a compromise, and was therefore powerless to prevent the recriminalization of prostitution in Rhode Island thirty years later; ESPLERP has vowed not to accept such a compromise. We should therefore expect those who profit from the status quo to do everything in their power to halt a lawsuit that can really have one one legally-valid outcome.
