The panel affirmed the district court's dismissal of an action brought pursuant to 42 U.S.C. § 1983 challenging Section 647(b) of the California Penal Code, which criminalizes the commercial exchange of sexual activity.

The panel first rejected plaintiffs' assertion that Lawrence v. Texas, 539 U.S. 558, 562 (2003) created a liberty interest that prohibits a state from criminalizing prostitution. Applying IDK, Inc. v. Clark Cnty., 836 F.2d 1185, 1193 (9th Cir. 1998), the panel held a relationship between a prostitute and a client is not protected by the Due Process Clause of the Fourteenth Amendment, and therefore laws invalidating prostitution may be justified by rational basis review. The panel held that Section 647(b) was rationally related to several important governmental interests, any of which support a finding of no constitutional violation under the Due Process Clause of the Fourteenth Amendment.

The panel held that Section 647(b) does not violate the Fourteenth Amendment freedom of intimate or expressive association. The panel noted that this court in IDK, Inc. v. Clark Cnty had already ruled that the relationship between a prostitute and a client does not qualify as a relationship protected by a right of association. The panel further rejected plaintiffs' assertion that Section 647(b) violates their substantive due process right to earn a living. The panel held that there is no constitutional rights to engage in illegal employment, namely, prostitution. Finally, the panel held that Section 647(b) does not violate the First Amendment freedom of speech because prostitution does not constitute protected commercial speech and therefore does not warrant such protection.