Earlier this week the Tenth Circuit reviewed two sections of the amended Utah Sexual Solicitation Statute for First Amendment facial challenges by several escort service businesses. The district court upheld § 1313(1)(c), but found § 1313(2) unconstitutionally vague.
The Tenth Circuit, reversed in part, and affirmed in part, holding that the two sections were constitutional and did not infringe on appellants' First Amendment rights.
Appellants argued that issue preclusion should apply because a predecessor sexual solicitation statute, previously held unconstitutional, had similar language. The court did not agree because the new statute was different, enacted separately, had distinct purposes, different effects and different definitions of "sexual activity."
Whether the Statute Is Over Broad
The court noted that the test for over-breadth is more stringent when criminal conduct is concerned, because of a state's legitimate interest in enforcing criminal laws. Appellants argued that the statute would prohibit conduct meant to be artistic or entertaining but the court did not agree. The court emphasized the fact that the statute required the acts coupled with the intent to engage in sexual activity for a fee. Without that intent, the conduct would not be considered criminal.
Whether the Statue Is Vague
Last, the court had to determine whether the statue was vague. The court noted that the statute gives "fair notice of what conduct it prohibits." The fact that intent was required bolstered its position. The 10th Circuit stated the fact that surrounding circumstances could be used to infer intent was not problematic and cited examples such as the 10th Circuit Criminal Pattern Jury Instructions, and carjacking case law to illustrate its point.
It seems the Utah legislature got it right the second time around. After the predecessor sexual solicitation statute was found unconstitutional, it went back and drafted a statute that contained more specific language. This is a text book example of our balance of powers at play.
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