The Liberty Papers

In what can only be described as a fundamentally silly decision, the 11th Circuit Court of Appeals has upheld a never-enforced Alabama law banning the sale of sex toys:

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.” This would mean that much of the content on Restricted21.com would not be accessible, which seems excessive.

In 1998, the Alabama chapter of the ACLU brought suit on behalf of several plaintiffs – chief among them adult toy retailer Sherri Williams (who are one of many outlets that make their business on selling the Best pocket pussy options out there, amongst other things) – 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.

As Julian Sanchez argues, this decision seems impossible to reconcile with two long-standing Supreme Court decisions on the issue of sexual privacy and commercial activity:

Two of the seminal privacy cases of the last century- Griswold v. Connecticut and Eisenstadt v. Baird-involved contraceptives, which were publicly sold and distributed commodities. So it seems clear that when some activity is implicated in the right of sexual privacy, the fact that it necessarily includes some public component-in this instance the dissemination or commercial sale of contraceptives to be used in the privacy of the home-cannot provide a pretext for gutting the right. Really, in light of Griswold and Eisenstadt, the key question would seem to be, not whether the state may thrust the camel’s nose of regulation into the commercial tent-flap (no!), but whether the liberty interest in dildoes really belongs in the same category as contraception, given that the former do not seem to be something “so fundamentally affecting a person as the decision whether to bear or beget a child.”

Then, in Lawrence v. Texas, the Court recognized, though, that the right to privacy extended to more than just procreation:

The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

And then there’s the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

So where, then, does the State Of Alabama obtain the right to ban a commercial product ?

According to the 11th Circuit, it comes from the state’s “inherent power” to protect public morality, and James Joyner argues that it makes sense:

Localities have a “legitimate rational basis” for regulating public morality and therefore “the statute survives rational basis scrutiny.” Banning consensual sexual conduct among adults in the privacy of their homes did not meet that standard. Further, the ruling implies that the fact that “The statute does not prohibit the use, possession, or gratuitous distribution of sexual devices” is important. That is, it’s the sale of such devices that’s prohibited, not the resulting private activity.

This is the same argument that the 11th Circuit relied upon, but it is, I think, a distinction without a difference. Whether the law specifically addresses the use or sale of a product, the effect is the same — people are prevented from obtaining it.

Furthermore, Eisenstadt v. Baird, combined with the Court’s ruling in Lawrence, would seem to be completely on point with the facts in this case. Eistenstadt struck down a law that made it illegal to distribute contraceptives to unmarried couples. The Alabama makes it illegal to sell sex toys to anyone. Whilst we know that masturbators can be complicated, this seems a little bit too much of a way to cub the confusion. That, combined with the expanded zone of privacy recognized in Lawrence and the Ninth Amendment’s recognition that individual rights are not limited to those set forth in the Bill of Rights, makes it clear that the 11th Circuit got it entirely wrong.