[If you’re a CA citizen reading this, and you’re outraged by what you read, please contact any/all of the CA State Senators listed at the bottom of this Open Letter before 9AM, Tues 4/24 and explain to they why you oppose SB 1204. You don’t need to be their constituent to contact them, though if you’re a constituent of one of them, let them know that when you call.]
Summary: California is about to pass a bill that severely criminalizes all speech that “encourages” sex work. This is a brazen encroachment on the First Amendment right to freedom of speech, and all citizens should rally against it, no matter what their opinions are on sex work. If this bill passes, as an author who cherishes my First Amendment rights, I will openly break the law with my speech, in an act of principled noncooperation with a clearly unconstitutional law—risking jail time of necessary—and will not stop breaking it until the law is overturned for the unconstitutional mess that it is.
Dear Members of the California Senate Committee on Public Safety (including Nancy Skinner, Joel Anderson, Steven Bradford, Hannah-Beth Jackson, Holly Mitchell, Jeff Stone, and Scott Weiner),
I am writing to you as an author or co-author of three published books, and a life-long resident of Kensington, CA, in the district represented by your chair Nancy Skinner. As an author, I take legislative threats to free speech very seriously, and I am writing to express my strong opposition to Senate Bill 1204, on free speech grounds.
SB 1204 radically re-defines the long-standing definition of “pandering,” which has historically been conceived as providing financial inducement to someone to begin engaging in prostitution. The new definition, under SB 1204, will expand the felony to include any “encouragement” whatsoever towards engaging in prostitution, even if that “encouragement” takes place only in words and opinions, with no financial inducement.
This is an obvious violation of my First Amendment right to express my opinion as to whether a person should become a sex worker or not.
I fully support the judgment of dozens of human rights, sex worker rights, women’s rights, LGBT rights, health, intergovernmental, and civil liberties organizations, who believe that consensual, adult sex work should be decriminalized. Groups advocating this position include Amnesty International, Human Rights Watch, the Sex Workers Outreach Project, the Global Network of Sex Worker Projects, the Center for Health and Gender Equity, the ACLU, Lambda Legal, U.N. AIDS, the U.N. International Conference of Population and Development Beyond 2014, the Global Commission on HIV and the Law, the Lancet medical journal, and the World Health Organization.
I understand that the bill under your consideration is putatively designed with the intent to combat sex trafficking and underage sex work. Of course I support combating those evils—as any decent person does—but I also concur with the strong opinion of many of the experts and advocates cited above, who say that the single most effective way to combat sex trafficking and underage sex work would be to decriminalize adult, consenting sex work.
Trafficking is, after all, primarily an activity of organized criminals (also here and here.) The greatest friend of organized criminals has always been the prohibition of so-called “vice” goods and services, pushing the markets underground and thus creating an opportunity for organized crime to control the markets.
As an example, the last time organized crime was involved in the manufacture and distribution of alcohol in California was—to my knowledge—around 1933, when prohibition ended.
States such as California that have legalized or decriminalized medical and/or recreational marijuana have (predictably) seen a rapid decline in gang activity and violence related to marijuana. Transnational criminal networks with guns who imported and distributed marijuana from other countries have given way to the hard-working and tax-paying farmers within California and the fine bud-tenders who staff our state’s well-lit, clean and safe dispensaries.
Back to the topic at hand, by analogy, traffickers would have far less of an opening to force their supposed “protection” on workers in the labor market for sex work, if the market were above-ground. That’s because market participants would have recourse to rights, contracts, laws and courts to resolve differences, rather than relying on criminal networks and “street justice” to run the market.
I believe that adults have the right to use their own body however they please, and that the state has no compelling interest in telling consenting adults whether or not they can use their sexuality to earn money, whether they’re using their sexuality as a fashion model, a Hollywood actor, a pop star, a stripper, a porn actor, or an escort.
It is not my intention to try to sugarcoat the many very serious problems that confront the sex industry as it is currently practiced underground. (I will note, however, that most of these problems can be traced directly to prohibition, as was with marijuana prohibition.)
With all that said, I believe that sex work can be a legitimate, respectable, and dignified way to use one’s body in a professional context if one so chooses—just as legitimate as using one’s body to be a construction worker, coal miner, dancer, massage therapist, waiter, fashion model, or professional boxer.
As an author who has written or co-written two books on career development, people come to all the time to ask me about their career choices. In some cases, people have expressed to me, with a variety of different reasons, that they are considering becoming a sex worker. And in some of those cases, after hearing their circumstance, reasons, and considerations, I have expressed an opinion along the following lines, in an act of “encouragement” towards sex work:
Sex work can (for some people) be a reasonable, relatively enjoyable (compared to cubicle jobs!) and relatively lucrative (compared to waiting tables!) way to make a living. I’ve seen people pay off student debt through sex work, develop their first savings in their life, put a down payment on their first home, support ailing family members, and even save up capital to start their (non-sex-related) businesses they always dreamed of, in timeframes that would not have been available to them otherwise.
Sex workers primarily provide entertainment and recreation—which, like singing, acting, or dancing, is a legitimate activity for both buyer and seller—but in some cases they also offer compassionate and non-judgmental caring for people who are suffering in their sexuality. Sex workers sometimes help clients explore and de-shame aspects of their own sexuality that have been shamed, judged or ridiculed by larger society.
Of course, as in all industries, there is wide range of experiences for those working in it. In any industry, the experience of workers within in it can range from miserable, exploitative, poorly paid, overworked and even abusive–as we’re learning about every profession, from the courageous women sharing their stories of abuse and harassment in every industry through #MeToo–to experiences that are creative, meaningful, well-rewarded, and empowering.
With that in mind, I absolutely reject the pervasive stereotype depicting sex workers as desperate, shady, unsavory, stupid, victimized and unskilled people. This is an insult to the majority of workers in this industry who choose this line work willingly. It is an in insult to the many people in this industry who—in a traditionally sex-negative society that attempts to make them stigmatized criminals and push the into the shadows–courageously take pride in their front-line efforts to de-shame human sexuality, and who treat their work as a skilled craft, a calling, and a serious, entrepreneurial profession.
If you think you might want to make money in this way, I encourage you to do your own due-diligence, read the voices and stories of many other sex workers in their own words, talk to as many sex workers as you can about the relative risks of this field (which are real) and rewards (which are also real,) and consider engaging in this line of work if, on balance, it seems more lucrative, interesting, and enjoyable to you than other available options.
***
As you vote on this bill on Tuesday, April 24th, I want you to understand something. Under the law you are about to consider, the paragraphs I just shared in italics—if an adult were to read them and decide to become a sex worker—would be considered pandering, a felony subject to up to six years’ imprisonment. Even though I was not pandering or procuring under any reasonable interpretation; I was merely expressing my opinions—as is my right under the First Amendment—with no financial inducement involved whatsoever.
It is likely you do not agree with my opinion—as most people don’t—but unpopular opinions are precisely the kind the First Amendment was designed to protect.
Any argument that expressing opinions such as mine should be outlawed, because the opinions encourage unlawfulness in some indefinite time period in the future, has been roundly rejected in half a century of legal precedent set by the United States Supreme Court, starting with Brandenberg v. Ohio (1969,) and later re-affirmed (and never challenged since) in Hess v. Indiana (1973.)
This is settled precedential law. SB 1204 would be laughed out of the Supreme Court, were it to reach that level.
(In our state, virtually all speech that was positive and encouraging about marijuana, before we rightly ended prohibition, encouraged unlawfulness as well, and yet it was still protected by the First Amendment, as interpreted in Brandenberg and Hess.)
The law would not only violate the freedom of speech of our state’s citizens, but it would also have dangerous and far reaching effects for the lives and safety of adult, consenting sex workers, and of trafficking victims, in California. Already, because of SESTA, and because of the threat of SB 1204, one of our state’s primary outreach organizations providing safety and health information, resources and services to both adult, consenting sex workers and to trafficking victims, the Sex Worker Outreach Program, has had to shut its doors. According to an article in Jezebel, it will be “shuttering its safe-house, ceasing distribution of both condoms and ‘bad client’ lists, discontinuing classes around sex worker safety, and dramatically reducing the availability of its hotline.”
That this venerable volunteer outreach organization, providing such urgent outreach care to vulnerable sex workers, was closed by laws such as those you are considering now, is horrendously reckless and irresponsible policymaking, already resulting in immediate, life-threatening danger for SWOP’s most vulnerable outreach recipients, who are now without its services. The politicians who drafted and voted for SESTA, and who have drafted and are supporting SB 1204, should be ashamed of themselves, and have already–because of this result, and others like it–sullied any notion they may have of caring even one whit about the lives of sex workers.
This travesty of policymaking occurred in part because even the threat of SB 1204 passing would make SWOP’s volunteers possible “panderers” (those are mocking scare quotes, by the way,) and thus subject to imprisonment for “trafficking.”
As Kristen DiAngelo, the executive director of SWOP-Sacramento told Jezebel, about her need to close her operation in light of FOSTA and the potential of SB 1204 passing: “The whole political environment makes me feel really protective of [our volunteers]… The last thing I want to do is put them at risk. There’s some words in [SB 1204] that are very ambiguous—there’s no way to know whether you’re breaking the law or not… If they changed that law, we would be at huge liability.”
Members of the Committee: Do you want to be known, for the rest of your political career, as having voted for the bill that made it impossible for outreach organizations such as SWOP to provide health, HIV-prevention, safety, and educational resources to consensual, adult sex workers, and to trafficking victims, in California?
Do you want to be known for having voted for a bill created with so little concern as to whether it aligns with the Constitution and with long-standing and well-settled Supreme Court precedents, that it reads more like a (bad) joke than a serious attempt at lawmaking? One that stands so little chance of surviving appeal?
Do you want to be known, for the rest of your political career, as having voted for the bill that attempts to move our beloved state—a great bastion of free thinking–more towards an authoritarian, police state that controls and restricts sexuality-related opinions expressed by its residents?
Should you choose to pass SB 1204, I will continue to speak, write, and publish paragraphs like the ones I shared in italics above, encouraging (some) consenting adults towards sex work, in open and public violation of your law. I will so do as an act of principled noncooperation with this clearly unconstitutional restriction on my right to speak my mind freely.
Should you wish to stop me from expressing my opinions about consenting adults and their career choices, you will have to arrest me and jail me. And if I am afforded a pen in jail, I will continue to write and express these opinions there. I will appeal this prosecution to whatever level of court necessary until the law is knocked down and exposed for what it is: an embarrassingly illegitimate law that was written without even the slightest pretense of according with our nation’s Constitution.
If this be pandering, make the most of it.
Sincerely,
Michael Ellsberg
Kensington, CA
Note: If you’re a CA citizen reading this, and you’re outraged by what you just read, please call any/all of the CA State Senators listed below at both their District and Capitol offices and urge them to vote NO on SB 1204 on Tuesday, 4/24, for all the reasons I’ve outlined here. You can leave messages until 9AM on 4/24. You don’t need to be their constituent to contact them, though if you’re a constituent of one of them, let them know that when you call:
- Senator Nancy Skinner (Chair): District office, (510) 286-1333; Capitol office, (916) 651-4009
- Senator Joel Anderson (Vice Chair): District office, (619) 596-3136; Capitol office, (916) 651-4038
- Senator Steven Bradford: District office, (310) 412-6120; Capitol office, (916) 651-4035
- Senator Hannah-Beth Jackson: District office, (805) 965-0862; Capitol office, (916) 651-4019
- Senator Holly Mitchell: District office, (213) 745-6656; Capitol office, (916) 651-4030
- Senator Jeff Stone: District office, (760) 398-6442; Capitol office, (916) 651-4028
- Senator Scott Weiner: District office, (415) 557-1300; Capitol office, (916) 651-4011
