Is escorting constitutionally protected?

Feb 12, 2010 Is escorting constitutionally protected?


Bill of Rights. (From the public domain.)

Is escorting constitutionally protected? Before courts can reach that question, a definition of escorting is needed. As it turns out, the definition of an “escort” runs the gamut from a dinner and conversational companion who provides no touching nor erotic services, to massages, to private partially-nude and fully-nude stripteases, to erotic direct physical contact running from erotic massages to more than that.

For escorts who provide stripteases, they may seek some protection from U.S. Supreme Court caselaw providing some First Amendment protection for erotic/exotic dancing. City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000). However, even the foregoing Erie case provides governments with a roadmap to require exotic dancers to wear pasties and g-strings. Moreover, the U.S. Supreme Court permits governments to try to zone adult entertainment to specific locations, and such zoning laws may not be amenable to escorts who provide outcall services. Los Angeles v. Alameda Books, Inc., 535 U.S. 425  (2002).

Thanks to a colleague for recently referencing a 1988 Ninth Circuit case that gives little to no First Amendment protection for escorts against government regulation. IDK, Inc. v. County of Clark, 836 F.2d 1185 (9th Cir. 1988). IDK’s 2-1 panel majority held:

“The county’s regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service’s facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is "strong medicine" which should be used "sparingly and only as a last resort." Broadrick [v. Oklahoma], 413 U.S. [601] at 613 [(1973)]. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.”

IDK, Inc., 836 F.2d at 1198.

Dissenting Judge Reinhardt takes a better approach, concluding:

“The Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county’s goals, and it encompasses associations that are unrelated to those goals. It is "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." Coates [v. Cincinnati], 402 U.S. [611] at 614 [(1971)]. For these reasons, I respectfully dissent from the majority’s decision.”

IDK, Inc., 836 F.2d at 1206. Jon Katz 

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