WASHINGTON, D.C. - In a surprise move, the U.S. Supreme Court has requested that the state of Alabama file an answer brief responding to the petition for writ of certiorari filed by adult retailer Sherri Williams, as well as the "friend of the court" brief in support of the Williams petition filed by the Free Speech Coalition and the First Amendment Lawyers Association.
Williams has spent nearly 10 years fighting for her right to sell devices that can be used for sexual stimulation to her customers in Alabama, which has an "obscene device" statute preventing her from doing so. Williams has been in district court three times on this issue, won twice and been twice knocked down by the Eleventh Circuit U.S. Court of Appeals. Her petition to the Supreme Court, which will be argued by prominent First Amendment attorney Paul Cambria, will likely be the last legal stage of this fight.
"Originally, the state filed a waiver of right to respond, and they actually did that before our friend of the court brief," said First Amendment attorney and Free Speech board member Reed Lee. "The court has now officially requested the state to respond. That's a moderate sign that they're interested. If there were no interest in the petition at this point, they wouldn't bother making the state respond if it didn't want to. How strong the interest is and where the interest lies is going to be an impenetrable mystery until at least the first week of the term, but it's a sign that there's some interest there."
Lee said that the request for response, which the state is unlikely to refuse, may be for something as simple as making sure there's no procedural defect in Williams' case that would "make the case not what it seems; that is, make it not worth the Supreme Court's time to consider it," Lee speculated.
But the overriding question is, will the generally conservative make-up of the high court use the Williams case as an excuse to tinker with, if not attempt to overturn, the 2003 landmark decision in Lawrence v. Texas, which recognized adults' rights to sexual privacy?
"Of the Lawrence line-up, five are left from the Lawrence majority," Lee noted. "In other words, even without O'Connor, Lawrence was 5-4; O'Connor wrote this concurrence that made it 6-3 on the equal protection argument. Alito is very up in the air as to how he would come down on this. On abortion, he is absolutely not promising at all ... but on issues relating to sexually-oriented expression, I don't know."
Lee sees hope in the fact that Alito didn't join the majority opinion authored by Chief Justice John Roberts in Morse v. Frederick, the "Bong Hits 4 Jesus" free speech case, although he authored a concurring opinion on more narrow grounds. However, he expects that Roberts and Associate Justices Antonin Scalia and Clarence Thomas can be counted upon not to favor Williams' position if the Court does accept certiorari, while Justice Anthony Kennedy was with the majority in Lawrence and might easily see Williams in the same light.
Lee also feels that the last Eleventh Circuit opinion may be helpful to Williams' case.
"As hostile as some of those Eleventh Circuit panels that Williams was unfortunate enough to pull, as hostile as they were to Lawrence – oh, they never did say it was strict scrutiny, or they never did say it was a fundamental right, or whatever – ultimately this last panel makes an 'even if' argument," Lee assessed.
"That is, even if Lawrence embraces the right to use these devices, there's still the matter of their commercial sale, and whether the state can regulate the commercial sale for purely moral purposes," Lee continued. "That issue was settled back in 1965, but the last panel basically said, 'Okay, we'll grant you that Lawrence covers the right, supports the right, so yes, this is a case about Lawrence,' but this is really a case about what limits could be put on Lawrence and whether the limits that Alabama has articulated and the courts have articulated – hostile Eleventh Circuit panels – I don't know why they've been so hostile, but they have been from the word 'go' – the question is whether they can limit Lawrence in any kind of coherent way, and our argument is that the way they've come up with so far has been foreclosed since 1965. But I think everybody realizes it's a real tough row to hoe if you're going to say there's a right to engage in homosexual acts between consenting adults but there's not a right to use a sexual device either alone or with another adult. Drawing that line would be very, very difficult, and I don't see any coherent votes for that on the court. Maybe a couple of crazies would vote for it – and you know the two I mean when I say 'couple.' But I don't see that line being drawn. I think the real issue here would be the commercial issue."
Lee's reference to 1965 is a reference to the seminal contraception case, Griswold v. Connecticut.
"The outrageous thing abut the Eleventh Circuit," said Lee, "is, they seemed to recognize, at bottom, in this latest panel opinion in Sherri's case, that, 'Maybe there's a right to masturbate, maybe there's a right to use these devices as part of consensual sexual activity between two adults, but the state can still regulate, on moral grounds, the commerce in these items.' The problem with that is, they decided the case without ever once talking about Griswold v. Connecticut, the old contraception case from 1965."
"Griswold recognized the right of married couples to contraception, but Edith Griswold wasn't part of a married couple wanting contraception," Lee explained. "Edith Griswold ran a family planning clinic that wanted to counsel people on contraception and wanted to give and sell contraceptives to people, and the Supreme Court said that made not one whit of difference. The Supreme Court said that Edith Griswold and her co-party doctor that wanted to counsel people had the right not to maintain their own claims, but rather to stand in the shoes of the married couples that they were counseling and treating. And the fact that money changed hands in that relationship made no difference in 1965."
Therefore, Lee concludes, if the Supreme Court had no problem with Griswold's clinic selling contraception to people even as Griswold herself was maintaining her First Amendment right to counsel them as to its use, Sherri Williams should prevail in her intent to sell sexually stimulating devices to Alabamans, since the Eleventh Circuit has now recognized the right of Alabamans to use the devices, and its quarrel over their sale would seem to be at odds with the settled law of Griswold. And Lee points out that the Griswold decision has been so popular and so accepted by society that judicial nominees who've spoken out against it have uniformly failed to be confirmed.
But for Lee, it all comes down to Lawrence.
"It is my view that as a logical matter, the Sherri Williams is a fortiori [directly following from] after Lawrence," Lee assessed. "If Lawrence is valid about the conduct involved, if the government can't regulate conduct between two consenting adults, how can it regulate the conduct of one person alone in his or her bedroom? That's why we've been saying in our briefs that that part is a fortiori. The next thing you look at is, what else is there? And what the Eleventh Circuit said is, 'Yes, but in this case there's commerce in the material.' What's going on in the back of everybody's mind is this: If there's no commercial/non-commercial distinction in Sherri Williams' case based on Lawrence, how's anybody going to uphold prostitution laws? We have a footnote in our brief saying we're ready to address that issue."
But what's also likely to come up in the high court's questioning, assuming they accept certiorari, is the whole question of how, in light of the 1969 decision in Stanley v. Georgia that citizens can own obscene materials in the privacy of their own home, can any retail be prevented from selling such "obscene" materials, since virtually no one creates obscene materials for him/herself to use at home?
"Lou Sirkin [the attorney for Extreme Associates] and I are making separate arguments in the obscenity area that get to the same result," Lee said. "I'm making mine on First Amendment grounds; Louie's making them on the privacy grounds from Lawrence, and yes, that's the one thing that stands in the way of extending Stanley in obscenity areas to commerce in the material; discreet commerce away from the prying eyes of kids and away from the eyes of adults who don't want to see it. But we can show that the Internet's discreet; billions of dollars in credit card transactions take place over the Internet."
In other words, if the Supreme Court decides that the state has no power to stop Williams from selling her vibrators on the grounds of some state-sponsored form of "morality," which power was what the Eleventh Circuit claimed justified its final ruling, then how can adult retailers be prevented from selling sexually explicit materials – even arguably "obscene" materials – since people already have the right to own such materials, and the state has no moral sanction to prevent such sales?
It's unclear how much time the state of Alabama will have to file its brief in response to Williams' petition, but First Amendment attorneys around the country are waiting anxiously for the Supreme Court's decision as to whether it will hear Sherri Williams' case – an announcement that could come at any time between now and June of 2008.
Legal
- By
