Reason Magazine Articles
A woman waiting on a street corner. A woman in a tight dress. A woman who speaks to someone walking by, waves to a passing car, looks at you too long. Are there clear, unambiguous meanings to these things? Of course not—they could be the actions of someone selling sex, or of someone waiting for a ride, recognizing a friend, flirting, or engaging in thousands of other normal daily activities. Yet in cities and states around America, these actions can and are getting people arrested for "manifesting" prostitution.
One recent case, in Phoenix, involves Monica Jones, an Arizona State University student and sex worker rights activits. Jones was arrested last year on charges of "manifesting an intent to commit or solicit an act of prostitution," a misdemeanor crime in Phoenix that carries a minimum penalty of 15 days in jail and up to six months in jail and a $2,500 fine.
In typically myopic legislative language, Phoenix Municipal Code stipulates that a person may be guilty of manifesting prostitution if he or she is "in a public place, a place open to public view or in a motor vehicle on a public roadway and manifests an intent to commit or solicit an act of prostitution." It goes on to give some examples of what this intent may look like:
the person repeatedly beckons to, stops or attempts to stop or engage passersby in conversation or repeatedly, stops or attempts to stop, motor vehicle operators by hailing, waiving [sic] of arms or any other bodily gesture; that the person inquires whether a potential patron, procurer or prostitute is a police officer or searches for articles that would identify a police officer; or that the person requests the touching or exposure of genitals or female breast.
In May 2013, Jones made the mistake of accepting a ride from an undercover officer. The officer was part of controversial city sting operation known as Project ROSE. (I wrote about the project for an upcoming issue of Reason magazine, and about the officer heading it up as part of a recent post on sex trafficking.) Jones had spoken out against the project the night before, at a local protest, as well as posted ads on Backpage.com warning sex workers about the stings.
"We believe Monica was targeted by the Phoenix police department," Jaclyn Moskal-Dairman, an activist with Phoenix's Sex Worker Outreach Project, said in a 2013 conversation with Tits and Sass blogger Caty Simon. Here's Moskal-Dairman's account of what happened with Jones:
"The evening after she spoke at the protest she was walking to a bar in her neighborhood. She accepted a ride from what turned out to be an undercover cop. He began to solicit her and she warned him he that he should be careful because of the Project ROSE stings that were going on that evening. He kept propositioning her and she asked to be let out of his vehicle. He did not let her out and actually changed lanes so she couldn’t exit the car.
Jones asked if the driver was a cop, ostensibly to figure out whether she was being arrested or kidnapped. And bingo: Manifesting prostitution.
The American Civil Liberties Union (ACLU) of Arizona helped Jones challenge the charges, arguing in Phoenix Municipal Court on April 11 that Phoenix’s law violates both the Arizona and U.S. Constitutions. "The charge against Jones should be dropped because the manifesting prostitution law … is unconstitutionally vague and overbroad," the ACLU said.
The ACLU also attested that the law infringes on free speech rights and "prohibits conduct that expresses gender identity." Jones says she was (and still frequently is) profiled for being a transgender woman of color. The cops stated that one of the first things that drew them to Jones was her "tight fitting black dress."
The Phoenix Municipal Court ruled against Jones last week. She was sentenced to 30 days in jail and a $500 fine.
The decision has sparked outrage on blogs and social media, with folks rightfully condemning the court's decision and Phoenix's prostitution laws and initiatives. But while Phoenix has one of the most broad statutes against manifesting prostitution—I've yet to see any other bans on "searches for articles that would identify a police officer"—many cities and even whole states still have similar laws on the books.
In eight states—North Carolina, California, Kentucky, New Jersey, Rhode Island, Hawaii, Ohio, and Minnesota—it's illegal to "loiter for the purpose of engaging in prostitution offense." This basically seems to mean "look to cops like a prostitute" in a public space.
Additionally, a number of cities prohibit loitering or manifesting for prostitution purposes. In Arlington, Texas, "engag(ing) in conversation with persons passing by" could get your arrested, and Dallas has a similar law (in 2013, one woman was arrested there or being "engaged in conversation in a high-prostitution area" with a man in a truck). In Portland, Oregon, "lingering in or near any street or public place" or "circling an area in a motor vehicle" suspiciously could be a crime.
New York City, of course, has laws against loitering like a prostitute—which Kate Mogulescu, a supervising attorney with the Legal Aid Society, has described as both arbitrary and discriminatory in their enforcement. In 2010, Mogulescu fought (and won) a conviction charge for a transgender woman picked up after talking to a taxi driver. "These arrests are... set up to be immune from scrutiny and, traditionally, they’ve been unchallenged," Mogulescu said.
Occasionally, these cases do reach the courts, with mixed results. Among the wins for the state: a 1980 case challenging a Milwaukee loitering for prostitution law; a 1985 case challenging North Carolina’s statute; and a 1986 case out of Kansas City.
But judges have long been ruling such statutes unconstitutional, as well. The Supreme Court of Alaska did so back in 1978 (Brown v. Municipality of Anchorage), calling the city of Anchorage's ban on loitering for the purposes of prostitution "unconstitutionally vague." The Supreme Court of Nevada ruled similarly in 2006.
An Oklahoma judge struck down a Tulsa loitering for prostitution law in 1980 (Profit v. City of Tulsa), writing that "a person should be convicted only for what he does, not for what he is." In a 1983 decision, Judge J.J. Rossman of the Oregon Court of Appeals overturned a loitering for prostitution conviction, noting that "it is not a violation of the law merely to look like a prostitute might."
A decade later, Florida's Supreme Court found the city of Tampa's ordinance prohibiting loitering for prostitution to be unconstitutional. The court noted that it left too much up to "officers' discretion" while "implicat [ing] protected freedoms" such as "talking and waving to other people."
Yet history repeats itself: The Florida court system found itself ruling on pretty much the same thing in 2013 (West Palm Beach v. Chatman). Florida's Fourth District Court of Appeals ended up overturning a West Palm Beach ordinance, after a trans woman waiting for a ride in a "known prostitution area" was arrested.
It seems pretty clear that these laws do criminalize people merely for "look(ing) like a prostitute might," whether this determination is based on race, gender identity, or class markers. As a relatively unremarkable looking and dressing white woman, I could probably wave and holler to all the passing cars I wanted without fear. Cops are going to be more likely to assume certain invidividuals "intend to commit prostitution" and, because these laws against manifesting it are so vague, they don't have to look far to confirm their biases. Once you're suspected of being a sex worker, any manner of ordinary actions become not just probable cause but criminal behavior.
"Even assuming the government has a compelling interest in prohibiting prostitution, a measure that criminalizes a broad range of legal speech surely cannot be the 'least restrictive' means to furthering such an interest," the ACLU wrote in a memo supporting Jones' acquittal. It surely can't be—and if the law was targeting "regular" folks, there would probably be more of an uproar. But these are sex workers and trans women and other marginalized individuals we're talking about. In Arizona and many other parts of the country, restricting their freedom and rights is simply seen as good police work.
As the long, warm summer days give way to the rusty tones of autumn, college kids around the country attempt to stay centered and focused for the trials of the coming school year. In addition to the normal stressors of finding a place to live, means of transportation, textbooks, supplies, and the myriad of other concerns for an incoming student, National Collegiate Athletics Association (NCAA) athletes must also contend with a deluge of eligibility rules.
The latest iteration of the NCAA Manual for Division I student-athletes runs nearly 450 pages. Two of the 450 pages define what it means to be a student-athlete while over 400 pages are dedicated to detailing restrictions on the student-athlete and making it clear the athlete cannot benefit from his or her skillset or name. To ensure that there's no confusion over how much free pasta players can be given, the word "meals" appears 80 times in the 2013-14 NCAA manual.
As a former member of the University of Texas women's softball team, I can say that these first days are overwhelming as you deal with a dueling sense of pride and humility—pride for being part of an elite group (only 2 percent of high school athletes get athletic scholarships) and humility as the fear of God is drilled into you over all the ways you can lose your athletic eligibility (and in turn your scholarship), which you've spent so much of your young life working to attain.
To help digest the newly added scrutiny to our lives, the athletic director at Texas left us with this rule of thumb: Doing the easy thing and the right thing are not always the same. Being a Longhorn means making the hard choices. It was a great and valuable lesson to receive as a student, but I often wonder if it should not also be taught to the governing board.
For many years, the NCAA has done the easy thing and ignored any real reform pertaining to student-athlete rights and compensation. This avoidance culminated with the historic ruling by the National Labor Relations Board (NLRB) this March, which said that Northwestern football players were employees of the university and had the right to unionize.
Another recent antitrust lawsuit highlighting the work and earning limitations placed upon scholarship athletes called the NCAA an "unlawful cartel."
''As a result of these illegal restrictions, market forces have been shoved aside and substantial damages have been inflicted upon a host of college athletes whose services have yielded riches only for others,'' the court filing said. ''This class action is necessary to end the NCAA's unlawful cartel, which is inconsistent with the most fundamental principles of antitrust law.''
The debate over student-athlete pay has reached critical mass because for years the NCAA has so vigorously denied student-athletes' right to earn money in any way.
I arrived at the University of Texas on a 95 percent athletic scholarship. I also received an outside academic scholarship to cover my remaining costs. But because the NCAA only allows student-athletes to receive what is called "full-cost tuition"—this includes tuition, room and board, and required books— and nothing more, I found myself in the position of having to return money to the foundation that had awarded it to me.
The NCAA said I had to forego the money I earned through my academics and scholarship—two principles the NCAA purports hold in high esteem. This money could have been spent on food, entertainment, and other personal expenses that all college students face. Instead, I was forced to return it solely because I was an NCAA athlete. (Disclosure: The foundation I received the grant from was nice enough to hold on to the money I returned so that I could apply it to my graduate school costs).
The "full-ride" was not enough to cover my costs, but the NCAA basically said, 'too bad.' Were other students on campus similarly banned or capped from receiving scholarship money they won or were eligible to receive? The short answer is no.
The NCAA also has a number of rules governing outside employment and internships for athletes that the general student body doesn't face. The NCAA prohibits student-athletes from working while their sports are in season. Athletes are allowed to work in the summer, but must get permission from the school and the NCAA first. Then both the student-athlete and their employer must regularly fill out paper work to verify that the student-athlete is in fact completing the work. It's a minor annoyance for the employers who hire athletes, but the NCAA believes the rule makes sure athletes aren't being paid more than what it thinks someone else might receive or benefiting from their status, which is a running NCAA theme — the athlete shouldn't benefit from being an athlete.
Perhaps sensing the oncoming legal challenges to its rules, the NCAA slightly amended its bylaws in 2007 to allow student-athletes to work during their off-season semester. Income for the semester is capped at a range of $1,200 to $2,500—which amounts to about a 20-hour workweek over the semester at $8.25 an hour.
What if my market value is worth more than that? Again, the NCAA says, 'too bad.' The NCAA wants student-athletes to strive for greatness on the field but caps their earning potential to near the federal minimum wage when they seek employment off the field.
Fee-for-lessons and sports camps would be another great way for student-athletes to earn extra income. They could instruct individuals in the sports they are experts in, and on a timeframe that is convenient for their busy schedules. The NCAA actually allows for this, but there is a major caveat: bylaw 22.214.171.124(f) states that the student-athlete cannot "use his or her name, picture or appearance to promote or advertise the availability of fee-for-lesson services."
It is difficult to build a client base for tennis or softball lessons if you are forbidden from advertising or even telling anyone about your services. Violate these NCAA rules and, again, you could lose your athletic eligibility and/or scholarship.
To reach the level of an elite NCAA athlete often requires spending most of your formative years in practice and competition to master your sport. When you spend that much time doing anything, it becomes a major part of your identity—a central part of who you are. And when you finally reach the level where you can reap the rewards of your labor, the NCAA orders you to pretend that being an athlete had nothing to do with it. That is wrong.
Some defenders of the NCAA argue that athletes should be happy with what they get from the schools. The athletes get their scholarships. The colleges and NCAA get their athletes. They assert it's a voluntary contract that student-athletes willingly enter into and that's all that matters. But that's a naïve perspective that ignores the hundreds of pages of rules and regulations the NCAA has implemented to restrict student-athletes' choices and freedoms.
It also disregards the blatant ways that the NCAA and professional sports leagues work to limit employment opportunities for the very best young athletes.
For example, the National Basketball Association (NBA) limits the earning potential of the best young basketball players in the world by prohibiting them from entering the league out of high school, thus pushing them into the NCAA. After watching a number of the best high school basketball players, including Lebron James, Kobe Bryant, and Dwight Howard, skip college, and thus the NCAA tournament, the NBA began requiring players to be 19-years-old before they were eligible to enter the league, producing a system where the best players head off to the NCAA for at least one season of college basketball.
The NBA and NCAA are protecting their self-interests and maximizing profits, which they're free to do. But let's not pretend it is a free market for college athletes, who are not free to profit off their own names or faces. As I learned the hard way, athletes can't even get well-paying off-season jobs or earn additional scholarships to pick up the bills.
ESPN's Jay Bilas, who played college basketball at Duke, wrote in The New York Times: "The N.C.A.A. states clearly that athletes are to be like any other student. Yet the association involves the athlete in such a heavily commercialized, multibillion dollar endeavor, that it ends up restricting the athlete from any college benefit beyond a scholarship. No other person within a university community is so restricted. Amateurism provides no benefit to the athlete, neither enhancing his education nor making him a better person. The Olympics began taking amateurism out of its charter in the 1970s, yet the N.C.A.A. holds onto it as a cherished ideal. Money is not the problem in college sports. The problem is that the athlete is restricted from making any."
The numerous legal challenges the NCAA faces today are borne out of bad policy to be sure, but underneath these lawsuits lay its fundamentally flawed treatment and vision of the student-athlete.
The NCAA has spent decades doing the easy thing, using its power to inconsistently impose and enforce outmoded and overly complex eligibility rules upon student-athletes, who have lost their athletic eligibility for rapping and have been punished for washing their cars with university water available to other students.
The NLRB ruling and growing number of other major lawsuits may finally force the NCAA to do what we as student-athletes learn on day one: make the hard choices.
The Rule of Nobody: Saving America from Dead Laws and Broken Government - Q and A with Philip K. Howard
"All of life works on responsibility," says Philip K. Howard. "Everybody listening to this...has achieved what they've achieved in life because they took responsibility to make it happen. Government is no different than that."
In 1995, Howard wrote The Death of Common Sense: How Law is Suffocating America, kicking off a national conversation about bureaucratic overreach and stupid regulations. In his new book, The Rule of Nobody: Saving America from Dead Laws and Broken Government, he extends and elaborates his analysis. It isn't bureaucratic gridlock or partisan polarization that's keeping Washington in perpetual mismanagement, argues Howard, but a fog of rules and regulations that has made it nearly impossible to figure out who is responsible.
Until civil servants can use common sense and practical judgement, he says, the government won't gain the flexibility needed for solving today's problems.
In a wide-ranging conversation with Reason's Nick Gillespie, Howard discusses many topics, including the following: the Port Authority of New York and New Jersey's inability to quickly raise the height of the Bayonne Bridge to accommodate newer, taller ships (00:57); why even President Obama doesn't control the executive branch (5:37); why regulations haven't made nursing homes better (7:50); how even New York Gov. Andrew Cuomo couldn't shut down an unused juvenile detention center due to union rules (9:12); the long history of doctors gaming Medicare (10:31); why businesses are more flexible than governments (12:10); how technocratic views of government took over America; why mandatory minimums have led to abuse by prosecutors (18:42); specific reforms to shift from "automatic government" to individual responsibility (25:44); the goals of the Common Good Foundation (43:00); and the high probablitiy of "seismic change" in America's political culture (44:10).
About 45 minutes.
Shot by Jim Epstein and Joshua Swain. Edited by Swain.
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Read Gillespie's review of The Rule of Nobody.
Remy reworks the Pharrell Williams hit, "Happy," for tax season.
Approximately two minutes.
Written and performed by Remy. Video produced by Sean Malone. All instruments and backing vocals by Ben Karlstrom.
It might seem crazy what I'm about to say.
I'm loving all these taxes that I gotta pay.
Like income, sales, gas, capital gains,
and having to pay you to figure out the way.
Clap along if you're like me,
and it makes you feel so good.
That your total tax paid for part
of an outhouse in the woods.
Clap along if sweet
camel statues make you groove.
Clap along if you worked four months
to help pay for its hooves.
But don't you want to pay for what PETA says?
How about for Pre-K programs for fetuses?
How about $180 grand to study quail?
How about this—do you NOT want to go to jail?
Clap along if you love
looking for every last receipt.
Clap along if it feels
you're on a bike without a seat.
Clap along if you just want to
high five and say shucks.
When the State Department
can't locate $6 billion bucks.
Romantic breakups are never fun — but add revenge porn to the mix and things can get downright cruel. Revenge porn is defined as the dissemination of sexually explicit images of an ex-lover without their permission. It can often be emotionally devastating and have lasting effects on a person's reputation and employability.
That's exactly what Nicole Coon, a 25-year-old Virginia nursing student, experienced last November when she found a sexually explicit video of herself on the Internet. Coon had filmed and sent the video to her boyfriend of 8 years; however, once the relationship went sour he allegedly posted the video online. The website where he allegedly posted advertises as a platform for revenge porn.
Coon's sexuality - intended only for the eyes of her partner - was now being seen by family, friends, and potential employers.
"I did it because I was happy and in love and I trusted someone," says Coon, "the experience has changed me as far as trust goes. My trust [in people] has gone down tremendously."
Coon contacted the website asking for it to be taken down. The website would only comply in exchange for $500. Coon declined to pay, feeling that she shouldn't be financially burdened for what was a cruel invasion of her privacy.
The nursing student fears for her future employment opportunities.
"My reputation is everything. I don't want this situation to alter anything in the future. I don't want [people] to look at me any less."
Virginia Delegate Marcus Simon (D-Falls Church) wants to deter this behavior in his state. He introduced House Bill 49 last December that would make revenge porn a state crime. Since then his bill has been incorporated into Delegate Robert Bell's (R-Charlottesville) House Bill 326. Bell's legislation overwhelmingly passed both chambers and was signed by Democratic Gov. Terry McAuliffe in March.
The legislation will go into effect this July and makes it unlawful for "any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells" an image which depicts another person in a "state of undress" where "such person knows or has reason to know that he is not licensed or authorized" to disseminate. The new law classifies any violation as a Class 1 misdemeanor, punishable by a fine and up to a year in jail.
Virginia, Utah, and Idaho have all enacted legislation this year criminalizing revenge porn; they join New Jersey and California which were the first states to do so. Nineteen other states have proposed similar legislation.
While most people sympathize with the victims, some fear criminalizing this behavior will have dire consequences on constitutionally protected free speech.
"The Supreme Court's position, rightly, is that all speech is by default protected by the First Amendment," says Lee Rowland of the American Civil Liberties Union (ACLU).
"We always start out with the presumption that speech is protected by the First Amendment. It's a messy, beautiful element of our constitutional tradition. Where the Supreme Court has acknowledged that you can assign penalties to behavior, it's when that behavior is conduct rather than speech. And that's what makes revenge porn so difficult, because the conduct is speech. The conduct of posting a photograph without someone's consent is speech."
Rowland argues that most state laws that have tried to grapple with revenge porn end up criminalizing the posting of an image.
Revenge porn, according to Rowland, is better handled under civil law. In most states, civil laws are already on the books that make it unlawful to maliciously cause emotional distress, intentionally invade someone's privacy, or participate in extortion and harassment. Expanding civil laws to include revenge porn where they don't, Rowland says, is a better solution than criminalizing it.
"At the end of the day, those civil remedies need to take into account the complexity of human intimacy, the violation of human trust. Those are things that the civil law does all the time in the context of human relationships - the criminal law not so much. The criminal law is such a blunt instrument that we have real doubts that it's possible to draft these laws in a way that won't end up criminalizing pure speech."
However, Rep. Jackie Speier, (D-Calif.), is looking to take the criminalization of revenge porn to the federal level. Speier is expected to introduce the bill sometime next month. A federal law against revenge porn could have a whole new set of First Amendment consequences. State legislation, such as Virginia's, only targets the individual posters and not the websites which serve as platforms. Most revenge porn websites are federally protected by section 230 of the Communications Decency Act. This section prohibits websites from being held liable for the actions of third parties. A federal criminal law against revenge porn would nullify this protection.
Civil libertarians are concerned this type of statute will lead to overreach and have a chilling effect on speech. Internet companies, it is feared, would respond to a criminal law against speech by removing content anytime there is a complaint in order to avoid legal issues. Individuals, too, will begin to self-censor rather than be caught up in criminal court. If this happens, the universe of speech available online will begin to diminish.
"I am truly concerned that the new wave of revenge porn laws will create far more problems than solutions," says Rowland.
About 6 minutes.
Produced by Amanda Winkler. Camera by Joshua Swain, Jim Epstein, and Winkler. Narrated by Alexis Garcia.
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