ATLANTA — In a unanimous opinion, a three-judge panel for the 11th U.S. Circuit Court of Appeals upheld an Alabama statute banning the commercial distribution of sex toys, saying that there is no fundamental right to privacy raised by the plaintiff’s case against the law.
According to the statute, it is “unlawful for any person to knowingly distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs.”
In 1998, the Alabama chapter of the ACLU brought suit on behalf of several plaintiffs — chief among them adult toy retailer Sherri Williams — seeking to enjoin the statute. The recent ruling by the 11th Circuit marks the third trip through the appellate process for the case.
In his opinion affirming the Alabama District Court’s ruling, Judge Charles Wilson concluded that the state has a “legitimate rational basis for the challenged legislation” despite a recent U.S. Supreme Court decision — Lawrence vs. Texas which overruled anti-sodomy laws across the country.
Adult entertainment industry attorney Reed Lee told XBIZ that the Lawrence case, which overruled Bowers vs. Hardwick, combined with another famous line of cases — Griswold vs. Connecticut and Roe vs. Wade — establish a clear right to what the U.S. Supreme Court has called a personal zone of autonomy protected by the due process clause of the 14th Amendment.
“I think the plaintiffs in this case are having a difficult time because although they rely on well-established doctrine that says consensual acts between adults is within that zone of protected autonomy, that doctrine comes from some of the most controversial Supreme Court cases in the last few decades,” Lee said. “But from the word ‘go’ the U.S. Supreme Court has given a plaintiff such as Williams the analysis necessary to win.”
Lee said that cases involving substantive due process issues often require multiple appellate challenges to vindicate a plaintiff’s rights.
In deciding the Williams case, Wilson wrote that the recent decision in Lawrence was distinguishable because that case did not involve the sale or distribution of anything — merely the right to engage in sexually protected acts within a zone of privacy.
The statute at issue in Lawrence criminalized private sexual conduct, the statute at issue in this case “forbids public, commercial activity,” Wilson wrote.
But according to Lee, the U.S. Supreme Court in Griswold made clear that the right to use contraception — the issue in that case — didn’t mean anything without the right to buy it.
“It seems to many of us that right to use a mechanical device such as a sex toy is already encompassed in the Griswold and Lawrence decisions,” Lee said.
According to Lee, the third decision by the 11th Circuit looks to be the last word on the case from that court. But he said the plaintiffs are likely to file an appeal to the U.S. Supreme Court.
Whether the U.S. Supreme Court decides to hear the case is unclear. But Lee said, if the Court does not take the case, it says nothing about the merits of the law in question.
In October, the U.S. Supreme Court declined to hear an appeal in a Texas case banning the distribution of “obscene sex toys.”
In that case, Acosta vs. Texas, attorney Roger Diamond urged the Court to weigh in on the matter because of conflicting opinions around the country from various state courts.
Colorado, Kansas and Louisiana courts have all said that laws banning the sale of sex toys on obscenity grounds are unconstitutional.
Courts in Georgia, Mississippi and Texas have upheld sex toy bans.
As those cases work their way through the federal appellate ranks, a split in the circuits would likely compel the U.S. Supreme Court to hear a sex toy case.
“If Texas can’t have a law against sodomy, it seems difficult to say that Alabama can ban the sale of sex toys,” Lee said.
because nobody's tossing them in the woods if they have to import them.
