Federal appeals court says law violates constitutional right to privacy.
By Steven Kreytak
AMERICAN-STATESMAN STAFF
Thursday, February 14, 2008
A federal appeals court has struck down a Texas law that makes it a crime to promote or sell sex toys.
"Whatever one might think or believe about the use of these devices," said an opinion written by Justice Thomas M. Reavley of the 5th U.S. Circuit Court of Appeals in New Orleans, "government interference with their personal and private use violates the Constitution."
Under Texas law it is illegal to sell, advertise, give or lend obscene devices, defined as a device used primarily for sexual stimulation. Anyone in possession of six or more sexual devices is considered to be promoting them.
The Texas law dates back to the 1970s and is seldom enforced. Travis County prosecutors say that they haven't charged anyone with a sexual device-related crime in at least the past seven years, and probably much longer.
In 2003, a woman in the Fort Worth suburb of Burleson drew nationwide attention when she was arrested for selling erotic toys at a Tupperware-type party. The charges against Joanne Webb were later dropped.
In addition to Texas, whose law has survived previous state court challenges, three other states have a similar sex toys statute: Mississippi, Alabama and Virginia. Laws in Louisiana, Kansas, Colorado and Georgia have been thrown out by courts in recent years.
The 2-1 opinion by a panel of the 5th Circuit was based heavily on the U.S. Supreme Court's 2003 decision in Lawrence and Garner v. Texas, which struck down a Texas law prohibiting private consensual sex among people of the same sex.
That case established a broad constitutional right to sexual privacy.
On the heels of that landmark ruling, Reliable Consultants Inc. sued Travis County District Attorney Ronnie Earle and Texas Attorney General Greg Abbott in 2004 in U.S. District Court in Austin.
They sought a declaratory judgment prohibiting the enforcement of the statute. Reliable Consultants at the time operated adult-oriented stores in Texas including two Dreamers stores and Le Rouge Boutique in Austin. The plaintiffs were later joined by PHE Inc., which operates an online and mail order adult store called Adam and Eve. The plaintiffs were never prosecuted but argued that because of the law their business was hindered and their customers were deprived of buying sex toys.
U.S. District Judge Lee Yeakel in Austin dismissed the lawsuit after finding that there is no constitutionally protected right to publicly promote obscene devices.
On appeal, lawyers for the State of Texas, which had replaced Abbott as a defendant, argued that the Lawrence case invalidates laws that target private conduct but not laws prohibiting any commercial conduct. Justice Rhesa H. Barksdale agreed with that logic in his dissent.
The state also argued in a brief that Texas has legitimate "morality based" reasons for the laws, which include "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation."
A spokesman for Abbott, who filed the brief for the state and for Earle in court, declined to comment. They can ask for review of the case by the entire court, appeal to the U.S. Supreme Court or allow the case to return to Austin, where Yeakel would likely enter an order that would end enforcement of the law.
Jennifer Kinsley, a Cincinnati-based lawyer for Reliable Consultants, whose firm represents adult businesses nationwide, applauded the court's ruling and said it would aid her clients and their customers.
"We believe that the rights of ordinary people are being violated by this law, and we are very happy this no longer is valid," Kinsley said.
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