11th Circuit Rejects Constitutional Challenge to Ban onSaleof Sexual Devices, Relies On Bowers

[Gey, Steve]

The statute involved in Williams v. Pryor was added to the Alabama obscenity
statute in 1998.  The fact that a ban on sexual aids was grafted onto a
statute that deals mostly with the distribution of printed materials
explains Alabama's difficulties in coming up with a plausible state interest
for the new provision.  (There was no debate about the provision in the
legislature.)  The stated purpose in the statute is to "protect children
from exposure to obscenity and prevent assaults on the sensibilities of
unwilling adults by the purveyors of obscene material."  The District Court
held that the 1998 sexual devices amendment did not further this purpose
because the state imposed a complete ban rather than simply regulating
methods of distributing the devices.  The Alabama Attorney General tried to
help the legislature by providing as an alternative interest the belief that
"commerce in sexual stimulation and auto-eroticism, for its own sake,
unrelated to marriage, procreation, or familial relationships is an evil, an
obscenity . . . detrimental to the health and morality of the state."  The
problem with this explanation is the stipulated facts presented by the
parties in the case, which contains an extensive proffer of testimony from
clinical psychologists and sex counselors about the usefulness of these
items in sexual therapy with married couples.  (Which, by the way, may take
this case out of the realm of rational relationship cases and into the realm
of fundamental marital rights a la Griswold--"a privacy right older than the
Bill of Rights" and all that.)

As an example of the problems generated by silly laws, how about this:  The
Alabama statute bans distribution of "any device designed or marketed as
primarily useful for the stimulation of human genital organs."  Does Viagra
fall within the statutory definition?

A question for Mike:  I can't find the 11th Circuit opinion on Lexis,
Westlaw, or the 11th Circuit's own website (Westlaw has the district court
opinion, and notes that it was overruled, but does not have the appellate
opinion in its database.  As of Friday afternoon Lexis does not even
acknowlege that the district court opinion has been overruled.)  Are the
various electronic databases just slow in uploading the decision or has the
11th Circuit taken the concept of unpublished opinions to the absurd point
that only the parties to the action can view them?

Steven G. Gey
Fonvielle & Hinkle Professor of Litigation
Florida State University College of Law
Tallahassee, FL  32306

TEL 850-644-5467
FAX 850-644-5487


-----Original Message-----
From: James Maule [mailto:maule at LAW.VILLANOVA.EDU]
Sent: Friday, October 13, 2000 3:41 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: 11th Circuit Rejects Constitutional Challenge to Ban
onSaleof Sexual Devices, Relies On Bowers


Please don't take this the wrong way (as I am not trying to be my usual
sarcastic and cynical self) but there are people for whom these so-called
toys are medically necessary protheses (sp?). For example, consider someone
who is disabled in some way (or those who need this sort of assistance in
connection with psychological assistance) ... there may even be some
implication of rights flowing from a discrimination between those who are
able-bodies and those who aren't. I haven't really given this much thought
(or time or anything else) to determine if the various items Rick mentions
can be distinguished from one another in terms of the medical
necessity/prothesis/etc concern.

The other problem is that many of these toys have multiple uses and for many
there are substitutes which do not fall within the Alabama statute (barring
stupidity in a vendor's advertising). So the well advised vendor skirts
around the statute and the not-so-well-advised vendor violates the statute.
That sort of "have access" and "not have access" distinction has been the
basis of successful arguments in some instances.

Of course, as to the "why does Alabama care?" question, one can only
guess... unless there is some interesting legislative history. Incidentally,
anyone know how "old" this statute is?



Jim Maule
Professor of Law
Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule


>>> gepps at LAW.UOREGON.EDU 10/13/00 03:10PM >>>
I am curious what state interest the statute embodied.  Why
does the state care whether people have sex toys?

Rick Duncan wrote:

> This decision seems correct with respect to its
> understanding of current law. The Court has never come
> close to holding that the SDP right of privacy
> includes a right to sex toys. It is not even clear to
> me that the right of *marital privacy* (which is at
> the core of SDP privacy) extends fundamental rights
> protection for even *married couples* access to
> dildoes (sp?) and vibrators and full size,
> anatomically-correct Barbie and/or Ken dolls. Am I
> wrong about this? Is there, at a reasonably specific
> level of generality, a deeply-rooted tradition
> embracing sex toys as a highly-revered liberty? I
> think not.
>
> --Rick Duncan
> --- Michael MASINTER <masinter at NOVA.EDU> wrote:
> > Alabama law provides:
> >
> > "It shall be unlawful for any person to knowingly
> > distribute, possess with
> > intent to distribute, or offer or agree to
> > distribute any obscene material
> > or any device designed or marketed as useful
> > primarily for the stimulation
> > of human genital organs for any thing of pecuniary
> > value."
> >
> > The Eleventh Circuit reversed a judgment declaring
> > the statute
> > unconstitutional on its face.  The court first
> > applied rational basis
> > review, and concluded it passed rational basis
> > review based on the state's
> > interest in morality.  The court next turned to the
> > argument that the
> > statute unconstitutionally intruded into a
> > fundamental interest in sexual
> > privacy.  Reasoning that Salerno foreclosed a facial
> > challenge if the
> > statute could be applied constitutionally in any
> > circumstance, the court
> > stated:
> >
> > "In light of Bowers, there would be no violation of
> > any fundamental
> > constitutional right to the extent the application
> > of Alabama's statute
> > infringed upon the sexual activity of homosexuals.
> > The statute has
> > possible constitutional applications and therefore
> > is not facially
> > unconstitutional."
> >
> > The court remanded for consideration of as applied
> > challenges.
> >
> > Williams v. Pryor,  99-10798 (October 12, 2000)
> >
> > Michael R. Masinter                     3305 College
> > Avenue
> > Nova Southeastern University            Fort
> > Lauderdale, Fl. 33314
> > Shepard Broad Law Center                (954)
> > 262-6151
> > masinter at nova.edu                       Chair, ACLU
> > of Florida Legal Panel
>
> =====
> Rick Duncan (conlawprof at yahoo.com)
>
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--
Garrett Epps
Associate Professor
University of Oregon School of Law
357 Knight Law Center
1221 University of Oregon
Eugene OR 97403

PHONE: (541) 346-1578
  FAX: (541) 346-1564

gepps at law.uoregon.edu
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