## Facts

- California Penal Code § 647(b) makes it a misdemeanor to solicit or engage in prostitution, defined as a lewd act for money or other consideration.
- Plaintiffs included a nonprofit advocating for erotic service providers, individuals who wished to provide sexual services for compensation, and a person who wished to purchase such services.
- Plaintiffs filed a 42 U.S.C. § 1983 action seeking declaratory and injunctive relief, alleging § 647(b) unconstitutionally criminalizes consensual, adult, compensated sexual activity.
- Plaintiffs asserted violations of substantive due process, occupational liberty (right to earn a living), and First Amendment rights of speech and association.
- The district court dismissed the complaint for failure to state a claim under Rule 12(b)(6).
- Plaintiffs appealed.

## Issues

1. Whether substantive due process protects a fundamental right to engage in consensual adult prostitution, requiring heightened scrutiny under the Fourteenth Amendment.
2. Whether criminalizing prostitution violates a constitutional right to pursue a chosen occupation (occupational liberty/right to earn a living).
3. Whether § 647(b) infringes First Amendment rights of intimate or expressive association.
4. Whether § 647(b) impermissibly restricts protected commercial speech by criminalizing offers or solicitations of paid sex.

## Decision

- The Ninth Circuit affirmed the dismissal of all claims.
- The court held that *Lawrence v. Texas* did not recognize a fundamental right to engage in prostitution; prior circuit precedent remained controlling.
- The court applied rational basis review and concluded § 647(b) is rationally related to legitimate interests, including discouraging prostitution-related harms, preventing exploitation and trafficking, and addressing public health concerns.
- The court rejected the occupational liberty claim because there is no fundamental right to engage in prostitution as an occupation and the statute satisfied rational basis review.
- The court rejected the association claims, concluding prostitution is not the type of relationship protected as intimate association and is not an association for protected expression.
- The court rejected the commercial speech claim, characterizing prostitution as conduct and holding that prostitution does not constitute protected commercial speech.

## Legal Principles

- A claimed liberty interest in consensual adult sexual intimacy does not necessarily extend to commercial sexual transactions; absent a recognized fundamental right, restrictions are reviewed under rational basis.
- Under rational basis review, a state may criminalize conduct if the law is rationally related to any legitimate governmental interest; empirical proof is not required.
- There is no fundamental constitutional right to engage in prostitution as a chosen occupation; occupational liberty claims in this context are evaluated under rational basis.
- The First Amendment does not protect association to engage in prostitution as intimate or expressive association.
- Offers or solicitations integral to an illegal commercial transaction may be treated as incidental to conduct rather than protected commercial speech.

## Conclusion

The Ninth Circuit upheld California Penal Code § 647(b) against substantive due process, occupational liberty, and First Amendment challenges, holding that prostitution-related prohibitions are subject to rational basis review and that prostitution is not protected speech or association under the First Amendment.


Erotic Serv. Provider Legal Educ. & Research Project v. Gascon, 880 F.3d 450 (9th Cir. 2018)