August 24, 2019

Tenth Circuit: Amendments to Utah’s Sexual Solicitation Statute Constitutional

The Tenth Circuit Court of Appeals published its opinion in Bushco v. Shurtleff on Monday, September 9, 2013.

Plaintiffs—Bushco Corp; Companions, L.L.C.; and TT II, Inc.  (“Appellants”)—are escort services licensed as sexually oriented businesses. Defendant is the Attorney General of the State of Utah (“Attorney General”). Plaintiffs brought a lawsuit in federal district court for the district of Utah, seeking declaratory and injunctive relief. They claimed that certain amendments (“Amendments”) to Utah Code Ann. § 76-10-1313 (“Sexual Solicitation Statute” or “Statute”)—specifically, § 1313(1)(c) and § 1313(2)—were overly broad, were unconstitutionally vague, and infringed on the right of free speech under the First Amendment of the U.S. Constitution. The parties filed cross-motions for summary judgment.

The district court held that § 1313(2) was unconstitutionally vague, and therefore ordered that that provision be severed and stricken from the statute. But the court upheld § 1313(1)(c). Appellants appealed the court’s ruling that § 1313(1)(c) was constitutional, and the Attorney General filed a cross-appeal, challenging the court’s ruling that § 1313(2) was unconstitutionally vague.

On appeal before the court were three main issues: (1) whether issue preclusion applied to the question of the Statute’s constitutionality because a district court previously held unconstitutional similar language of a predecessor statute, Utah Code Ann. § 76-10-1301(1) (“Sexual Activity Statute”); (2) whether the Amendments to the Sexual Solicitation Statute were overbroad or placed too great a burden on expression protected by the First Amendment; and (3) whether the Amendments to the Sexual Solicitation Statute were unconstitutionally vague.

The Tenth Circuit reached the following conclusions: (1) Issue preclusion did not apply, because the Predecessor Sexual Activity Statute and the Sexual Solicitation Statute are different statutes, with different purposes, and the constitutionality of the Sexual Solicitation Statute at issue in this case was not previously litigated. (2) The Amendments are not unconstitutionally overbroad because they do not encompass a substantial amount of constitutionally protected conduct. Moreover, the Amendments do not place too great a burden on Appellants’ speech rights because they pass the O’Brien test for incidental restrictions on First Amendment rights. United States v. O’Brien, 391 U.S. 367, 376 (1968). (3) Section 1313(1)(c) is not unconstitutionally vague, because it provides fair notice of the prohibited conduct and sufficient guidance to law enforcement. Similarly, § 1313(2) is not unconstitutionally vague, because it does not authorize or encourage discriminatory enforcement of the Sexual Solicitation Statute.

Accordingly, the Tenth Circuit AFFIRMED the district court’s ruling as to the constitutionality of § 1313(1)(c), but REVERSED the district court’s ruling that § 1313(2) is unconstitutionally vague.

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