Judge Kristin Wade is right about the overbroad nature of Dallas’ controversial prostitution ordinance. The city is trying to address a serious problem here, but this well-intended policy appears to overstep the Constitution.
The ordinance, which has been in place for decades, makes it a crime to loiter in a public place “in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to commit an act of prostitution.” This is known in some city government circles as the “manifestation ordinance.” It makes such “manifestation” a misdemeanor punishable by a fine of up to $500.
Wade, who presides over a county criminal court of appeals, ruled on July 27 that the ordinance is unconstitutional, writing, “An ordinance is overbroad when it punishes constitutionally protected conduct as well as illegal activity.” In doing so, she upheld a municipal court ruling by Judge Jay Robinson.
The dispute over this ordinance calls to mind a similar fight over a newer rule that prohibits panhandling in roadway medians. The two laws may sound similar but are different in an important way. The panhandling ordinance restricts everyone’s behavior in a safety-sensitive area, whether that behavior is from a fireman with a boot or a homeless man with a cardboard sign. The prostitution ordinance, on the other hand, targets specific behavior by specific people.
The behavior in question here, which someone innocently hailing an Uber could engage in, is constitutionally protected. Americans are allowed to wave at one another, or talk to strangers on the street. Granted, people working as prostitutes might do those things in a way that communicates other messages. And police aren’t naive; they know who is selling sex on Harry Hines Boulevard. But the practical application does not supersede the unconstitutional power the law creates.
We should also note that police aren’t blind to the dynamics that lead people to engage in prostitution. For many years now, Dallas police and prosecutors have regularly used misdemeanor charges to try to divert women into programs that can help them escape a life that very likely includes being trafficked. That’s both compassionate and responsible. In a roundabout way, removing this ordinance takes away a tool for helping victims.
That’s why we encourage Dallas officials not to give up on this law but to work to refine it in ways that pass constitutional muster while still giving police the tools they need to help people in terrible straits.
But police must work under constitutional limits. And when police get to decide who can wear a short skirt and who can wave at passing traffic, that’s going too far.
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