Petition — Moses v. United States

Supreme Court, U.

ter er

FILED ,

| DEC 11 1975 |

%

|

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. @5- RO gt

DEMETRIA MOSES, CORRINE E. SMITH,

TONJA PERRY, JOAN A. ABERNATHY, AND

DONNA A. GAINES,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

Of Counsel: JOHN W. KARR

625 Washington Building

Leonard B. Boudin Washington, D.C.

30 East 42nd Street

New York, New York

Tanya M. Neiman

School of Law (Boalt Hall)

University of California

Berkeley, California

Counsel for Petitioners

ee

(i)

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION .

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

CITATIONS

Cases:

Bigelow v. Virginia,

cess WO msn OO Da. 200 CISTe>

Brandenburg v. Ohio,

395 U.S. 444 (1969)

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942)

Cohen v. California,

403 U.S. 15 (1971)

Eisenstadt v. Baird,

405 U.S. 438 (1972)

Ernoznick v. City of Jacksonville,

__ US. __, 95 S.Ct. 2268 (1975)

10

(ii)

Gregory v. C*icago,

394 U.S. 111 (1969)

Griswold v. Connecticut,

381 U.S. 479 (1965)

Loving v. Virginia,

388 U.S. 1 (1967) .

McBoyle v. United States,

283 U.S. 25 (1931)

N.A.A.C.P. v. Button,

371 U.S. 415 (1963)

Papachristou v. City of Jacksonville,

405 U.S. 156 (1972)

Paris Adult Theater v. Slaton,

413 US. 49 (1973)

Pittsburgh Press Co. v. Pittsburgh Commission on

Human Relations,

413 U.S. 371 (1973)

Reed v. Reed,

404 U.S. 71 (1971)

Robinson v. State of California,

370 U.S. 660 (1962)

Roe v. Wade,

410 US. 113 (1973)

Roth v. United States,

354 U.S. 476 (1957)

7,8

(iii)

Shuttlesworth v. Birmingham,

382 U.S. 87 (1965)

Terminiello v. Chicago,

337 U.S. 1 (1949) .

Thomas v. Collins,

323 U.S. 516 (1945) .

Thompson v. Louisville,

362 U.S. 199 (1960) .

United States v. Russell,

411 U.S. 423 (1973) .

United States v. Wilson,

342 A.2d 27 (D.C. App., 1975)

Valentine v. Christensen,

316 U.S. 52 (1942)

Williamson v. Lee Optical Co.,

348 U.S. 483 (1955) .

Williams v. District of Columbia,

419 F.2d 638 (D.C. Cir. 1969)

Statutes:

District of Columbia Code (1973 Ed., §22-2701). .

Other Authorities:

American Law Institute, Modern Penal Code,

§250.1, Comment (Tent. Draft No. 13, 1961)

Page

Daws 7

(iv)

Page

Packer, The Limits of the Criminal Sanc ( see

cker, ts of the Crim tion (1968) . . . 7 .

Supreme Court of the Rnited States

Rosenbleet and Pariente, The Prostitution of the

Criminal Law, 11 American Criminal Law Review, OCTOBER TERM, 1975

pee Gees ltl tlt ee es eee eee 8

No.

DEMETRIA MOSES, CORRINE E. SMITH,

TONJA PERRY, JOAN A. ABERNATHY, AND

DONNA A. GAINES,

Petitioners,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

To The Honorable Justices of the Supreme Court of the

United States:

Petitioners Demetria Moses, Corrine E. Smith, Tonja

Perry, Joan A. Abernathy, and Donna A. Gaines, pray

that a writ of certiorari issue to review the judgment of

the District of Columbia Court of Appeals entered in

this case.

2

OPINIONS BELOW

The opinion of the District of Columbia Court of Ap-

peals, reported at 339 A.2d 46, and the unreported opin-

ion of the Superior Court of the District of Columbia,

are reproduced in the appendices to this petition.

JURISDICTION

The order of the Court of Appeals was entered on May

22, 1975 and a timely petition for rehearing en banc was

denied on July 14, 1975. Time to file this petition for

certiorari was extended to December 11, 1975, by order

of the Chief Justice entered on September 26, 1975. The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(3).

QUESTIONS PRESENTED

1. Whether D.C. Code, 822-2701 (1973 Ed.) making

solicitation for prostitution a criminal offense violates the

First Amendment's guarantee of freedom of speech.

2. Whether the statute is vague and overbroad, in vio-

lation of the First, Fifth and Sixth Amendments, in its

use of such terms as "enticing" and ‘prostitution and

because it covers all such proposals, direct and indirect,

regardless of time, place or other circumstance.

3. Whether the statute, as applied, violates the First

Amendment in that it is enforced exclusively by police

decoys under circumstances incapable of producing law-

less action.

4. Whether if the speech is treated as an inchoate

crime preparatory to prostitution it denies substantive

due process and violates the constitutional right to privacy.

3

5. Whether application of the statute's prostitution pro-

vision exclusively against women denies them the equal

protection guaranteed by the due process clause of the

Fifth Amendment.

CONSTITUTIONAL PROVISIONS AND

STATUTE INVOLVED

The constitutional provisions involved are the First,

Fifth and Sixth Amendments to the Constitution. The

statute involved is D.C. Code, 822-2701 (1973 Ed.) which

provides as follows:

It shall not be lawful for any person to in-

vite, entice, persuade, or to address for the

purpose of inviting, enticing, or persuading,

any person or persons sixteen years of age or

over in the District of Columbia, for the pur-

pose of prostitution, or any other immoral or

lewd purpose, under a penalty of not more

than $250 or imprisonment for not more

than ninety days, or both.

STATEMENT OF THE CASE

Petitioners were charged with soliciting for prostitution

in violation of D.C. Code $22-2701 (herein referred to as

"the statute''). The Superior Court, after preliminary

hearing, dismissed the informations on the grounds that

the statute violated petitioners’ rights to privacy and free-

dom of speech. The Court also held that the enforcement

policy of the Metropolitan Police violated petitioners’

right to equal protection.

4

The District of Columbia Court of Appeals reversed,

holding that (1) there is no constitutional right to privacy

where solicitations occur in a public place, and (2) a so-

licitation for prostitution is not entitled to immunity un-

der the First Amendment. The Court conceded that ''the

speech condemned is not the type intended or likely to

produce imminent lawless action or violence’, 339 A.2d

46, 51 (D.C. App. 1975), but held that the prohibition

against solicitation was reasonable because ‘regulation of

business conditions and commercial ventures long has been

recognized to be a valid exercise of police power.'' 339

A.2d at 53. In addition, the Court determined that there

is ''a legitimate national state and community interest in

maintaining a decent society'' and held that ‘the stem-

ming of commercialized sexual solicitations is an acceptable >

means of furthering this interest'’, Jd. at 54.

The Court of Appeals did not dispute the trial court's

finding that only women are arrested for such solicitation.

It held, however, that the policy was not discriminatory

because males proposing sodomy to other males are ar-

rested under §22-2701 for the different offense of ''so-

liciting for other lewd or immoral purposes."' /d. at 55.

REASONS FOR GRANTING THE WRIT

1. The statute violates the First Amendment's guaran-

tee of freedom of speech by making it criminal to propose

private sexual intercourse for pay. Neither 822-2701 nor

any other District of Columbia statute makes prostitution

itself criminal. But there can be no "‘criminal solicitation"

if the activity solicited is in itself lawful. While solicita-

ticn to commit a crime may be properly proscribed, the

District of Columbia cannot punish mere speech which

solicits another to commit an act which is itself not a

crime. Accordingly, the invitation to engage in prostitu-

tion is constitutionally protected speech, (Terminiello v.

Chicago, 337 U.S. 1 (1949); Thomas v. Collins, 323 U.S.

516, 539-540 (1945)) falling under none of the categories

susceptible to prohibition, e.g. obscenity (Roth v. United

States, 354 U.S. 476 (1957)), fighting words (Chaplinsky

v. New Hampshire, 315 U.S. 568 (1942)), or imminent

incitement to illegal action (Brandenburg v. Ohio, 395

U.S. 444 (1969)).

2. This statute curtailing speech alone presents two

additional problems of facial unconstitutionality.

(a) The defect of vagueness arises from the ambiguity

of such undefined terms as ‘enticing’ and ''prostitution."'

Accordingly, it does not meet the Court's requirement of

clarity in criminal laws, McBoyle v. United States, 283

U.S. 25, 27 (1931). ‘Entice'’ obviously includes non-

verbal conduct which is regarded as alluring. See I

Shorter Oxford Dictionary (1947), p. 617; Black's Law

Dictionary (rev. 4th Ed., 1968), p. 626, and the statute

contains no definition of prostitution.

(b) Further, the statute is unconstitutionally overbroad

in proscribing any conversation leading to prostitution,

regardless of the circumstances. This would include private

conversations in the home between consenting adults. It

is not a regulation with ‘narrow specificity’, (N.A.A.C.P.

v. Button, 371 U.S. 415, 433 (1963)) and thus fails to

meet this Court's test of ‘reasonable time, place and

manner of regulation’’ (Ernoznick vy. City of Jacksonville,

__ US. __, 95 S.Ct. 2268, 2272-3 (1975)). Hence, it

is broader than any justifiable governmental interest would

warrant. See also, Cohen v. California, 403 U.S. 15 (1971).

6

3. This case, not atypical, presents the additional ques-

tion of whether the statute, as applied, is unconstitutional

under the First Amendment. The invitation is made to a

police officer whose intention is to entrap the defendant

not to consummate the act of prostitution. Indeed, of

the 550 arrests made for the offense of solicitation for

purposes of prostitution in the District of Columbia during

1973, all were of women, and all were made by male un-

dercover police officers. United States v. Wilson, 342 A.

2d 27, 30 n. 5 (D.C. App. 1975). The resulting constitu-

tional problem is not that of entrapment (see United

States v. Russell, 411 U.S. 423 (1973)) but whether ''such

advocacy" is ''. . . directed to inciting or producing im-

minent lawless action and is likely to produce such action",

Brandenburg v. Ohio, supra, n. | at 447. The American

Law Institute notes that "insofar as the theory of dis-

orderly conduct rests on the tendency of the actor's be-

havior to provoke violence in others, one must suppose

that policemen, employed and trained to maintain order,

would be least likely to be provoked to disorderly re-

sponses." Modern Penal Code, 8250.1, Comment (Tent.

Draft No. 13, 1961). See also, Williams v. District of

Columbia, 419 F.2d 638, 646, n. 23 (D.C. Cir. 1969).

4. The monetary aspect of the speech here in ques-

tion does not remove it from First Amendment protection.

The reliance of the court below upon Valentine v. Christen-

sen, 316 U.S. 52 (1942) was misplaced. In Bigelow vy.

Virginia, __-; US. __, 95 S.Ct. 2222, 2235 (1975),

this Court held that simply because the speech involved

has commercial aspects ''a court may not escape the task

of assessing the First Amendment interest at stake and

weighing it against a public interest allegedly served by

the regulation.’ The cases relied upon by the Court below

in lieu of the required balancing process are clearly dis-

tinguishable. Unlike Pittsburgh Press Co. v. Pittsburgh

Commission on Human Relations, 413 U.S. 371 (1973),

the advertised activity here is not illegal, and unlike Paris

Adult Theater v. Slaton, 413 U.S. 49 (1973), the speech

is not obscene.

While certain limitations on advertising have been up-

held, see e.g., Williamson v. Lee Optical Co., 348 U.S.

483 (1955), this is very different from the outright pro-

hibition imposed by 822-2701. Such prohibition must be

subjected to careful scrutiny; any regulation of speech

protected by the First Amendment must be tailored to

the exigencies involved.

5. The statute violates the due process clause of the

Fifth Amendment and the constitutional right of privacy

even if solicitation is assumed to be an inchoate offense

leading to the act of prostitution.

Substantive due process prevents the state from making

conduct criminal unless it constitutes an injury to society

of which the state can take cognizance. See Packer, The

Limits of the Criminal Sanction (1968), passim. This

principle is reflected in such cases as Robinson v. State

of California, 370 U.S. 660 (1962), involving the cruel

and unusual punishment clause, and Thompson v. Louis-

ville, 362 U.S. 199 (1960) where the Court held that it

is a violation of due process to convict and impose pun-

ishment without evidence of guilt. See also Gregory v.

Chicago, 394 U.S. 111 (1969).

Prostitution historically has been made criminal on

the assumption that it is attended by evils which the

state is entitled to prevent. While these evils were not

enumerated by the court below to support its decision,

the Superior Court here effectively disposed of their sup-

posed connection with prostitution. (Appendix, p.

). But even if they were by-products of prostitu-

tion, the constitutional way to meet them is by legis-

lation directed to those evils, not by outright criminal-

ization.

The counterpart to substantive due process is the con-

stitutional right of privacy, as applied during the last

decade to the sexual area, which includes the right to

make personal decisions relating to one's sexual life. Roe

v. Wade, 410 U.S. 113 (1973), Eisenstadt v. Baird, 405

U.S. 438, 453 (1972), Loving v. Virginia, 388 U.S. |

(1967), Griswold v. Connecticut, 381 U.S. 479 (1965).

Prostitution, too, should be treated as a private consen-

sual matter between individuals who are entitled to de-

cide upon the control of their bodies. See, e.g., Rosen-

bleet and Pariente, The Prostitution of the Criminal Law,

11 Amer. Crim. Law Rey. 373, 420 (1973). Contrary to

the assertion of the court below, the right to privacy is

not lost because the conduct, or some portion of it,

occurs in public. See Paris Adult Theater, supra.

Where the fundamental right to privacy is invaded by

governmental action, that action must be supported by

some compelling interest on the part of the government.

The burden was not met by the government in this case.

Nor was the right of privacy in recent sex cases lost be-

cause of their business aspects. Hence, although contra-

ceptives are sold, their use is constitutionally protected

(Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra,

at 453) and although a physician may charge a fee for

an abortion, a woman has a right to terminate her preg-

nancy (Roe v. Wade, 410 U.S. 113). Similarly, the fact

9

that a customer pays for sexual services, does not change

the constitutional protection for the sexual activities which

are involved.

6. The statute, as applied, violates Petitioners’ right to

the equal protection of the laws embodied in the Fifth

Amendment in that only women are prosecuted for so-

licitation. This unequal application is recognized in the

decisions of both courts below in this case and in the

appellate court's opinion in United States v. Wilson, 342

A.2d 27 (D.C. App. 1975). There the government sought

to justify the discriminatory application of the statute by

"the scarcity of women undercover officers" and an al-

leged rule among street walkers is that ''the women first

must name the act and price.'’ (/d. at 29) Such an ad-

ministrative convenience is entitled to even less deference

than the legislation held to violate the Equal Protection

clause. See Reed v. Reed, 401 U.S. 71, 76 (1971). The

Court of Appeals should have inquired into whether there

was a compelling state interest which could justify the

discriminatory enforcemeni of §22-2701.

Finally, the police practices discussed above usurp the

legislative function by defining the nature of the crime

as one committed only by women. This practice which

arises from vague laws so inherently arbitrary and dis-

criminatory is in violation of due process. Papachristou

v. City of Jacksonville, 382 U.S. 87 (1972); Shuttlesworth

v. Birmingham, 382 U.S. 87 (1965).

10

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the petition for a writ of certiorari should be granted.

Respectfully submitted,

JOHN W. KARR

625 Washington Building

Washington, D.C.

Counsel for Petitioners

Of Counsel:

Leonard B. Boudin

30 East 42nd Street

New York, New York

Tanya M. Neiman

School of Law (Boalt Hall)

University of California

Berkeley, California

December 11, 1975