# Petition — Moses v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1422%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 426 U.S. 920 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1422%3A1. Public record. Not legal advice.