Escorts Fail to Take Down Utah Sex Solicitation Law

     (CN) – Utah’s sexual solicitation laws pass constitutional muster, the 10th Circuit ruled, disagreeing with a federal judge who found one provision of the statute too vague.
     Three escort services – Bushco dba Babydolls Escorts, Companions LLC and TT II Inc. – had sued Attorney General Mark Shurtleff and Salt Lake Police Chief Chris Burbank over HB 121 in 2011.
     Passed in March 2011, the law subjected sexually oriented businesses, or SOBs, to broadened statutes defining what activities constitute an intent to buy or sell sex.
     It amended Utah Code Ann. § 76-10-1313 by adding two new provisions, Sections 1313(1)(c) and 1313(2).
     Subsection 1(c) says that a person may be arrested for soliciting sex if police believe the person had an “intent to engage in sexual activity for a fee.” Acts proscribed when commissioned for a fee include exposing “a person’s genitals, the buttocks, the anus, the public area or the female breast below the top of the areola,” the touching of genitalia, masturbation and “any act of lewdness.”
     Subsection 2 says that the “intent to engage in sexual activity for a fee may be inferred from ‘a person’s engaging in, offering to engage in, or requesting another to engage in any of the acts described’ above ‘under the totality of the existing circumstances.”
     U.S. District Judge Dee Benson found subsection 2 “unconstitutionally vague” last year and ordered it severed and stricken from the statute.
     The other section survived, and Benson also dismissed Burbank from the action as an unnecessary party.
     Both sides appealed, but the state prevailed Monday, persuading a three-judge panel of the 10th Circuit that both provisions should have been upheld.
     They are not “unconstitutionally overbroad because they do not encompass a substantial amount of constitutionally protected conduct,” Judge David Ebel wrote for the court.
     The panel rejected the argument from the escort services that the amended statutes would “chill” a variety of protected expression, including “theatrical performers who use some of the enumerated exposure or touching to convey an artistic message.”
     “Even assuming, without deciding, that the exposure and touching enumerated in the amendments is constitutionally protected expressive conduct under some circumstances, we nonetheless conclude that the amendments do not reach a substantial amount of protected speech,” Ebel wrote. “The statute only prohibits participation in the enumerated exposure or touching done with the intent to engage in, or pay for, sexual activity for a fee. On the face of the statute, it does not reach any touching or exposure done without that intent.
     “In other words, the sexual solicitation statute does not criminalize the enumerated touching or exposure when done without the intent to participate in statutorily defined sexual activity for a fee. Thus, it does not reach the conduct of an actor clasping her breast as part of a stage performance or a wife touching her husband’s buttocks during an embrace. The intent requirement contained in the statute ensures that the statute only criminalizes the enumerated touching and exposure when done with the intent to participate in, for a fee, statutorily defined sexual activity.”
     Additionally, subsection 2 does not broaden police discretion to the point the provision “authorizes or even encourages arbitrary and discriminatory enforcement,” according to the 27-page ruling.
     “Instead, it constrains the officer’s discretion,” Ebel wrote.
     In upholding the laws, the court relied on the four-prong test for justifying incidental limitations on First Amendment freedoms created by the U.S. Supreme Court with the 1968 case United States v. O’Brien.
     Here, Utah’s amendments did not “place too great a burden” on the speech rights of escort services, according to the ruling.
     “The District Court rejected the argument that § 1313(1)(c) was overbroad and held that the provision ‘does not infringe on a substantial amount of protected speech,'” the 27-page ruling states. “The district court also held that the provision ‘satisfies all four prongs of the O’Brien test and does not infringe on expression protected by the First Amendment.’ We likewise hold that the amendments are not unconstitutionally overbroad and do not violate the First Amendment.”

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