Sex Toy Sales Now Completely Legal In Fifth Circuit

NEW ORLEANS - It was almost subtle. Prominent First Amendment attorney H. Louis Sirkin received an order this morning from the U.S. District Court in Austin, Texas requiring the parties in the case of Reliable Consultants, Inc. v. Earle to submit a written status report on the case - but the big news was this sentence: "On October 29, 2008, counsel for the State of Texas informed the Court by telephone that the State does not intend to seek a writ of certiorari in this cause."

What that means is that the decision by a three-judge panel of the Fifth Circuit Court of Appeals on Feb. 12, which overturned Texas' obscene device law, remains the law of the land, at least in the three states that form the Fifth Judicial Circuit: Texas, Louisiana and Mississippi.

"The panel decision actually reaffirmed what Judge [Gary] Lancaster had done in Pittsburgh," Sirkin told AVN, referring to Lancaster's landmark opinion dismissing obscenity charges against Extreme Associates - charges which were later reinstated by the Third Circuit. "He really upheld that there's a substantive due process right of individuals to buy that which can excite them in the privacy of their own homes. And the key word is 'buy,' as in 'to buy and to have available to them for sale for that type of home environment.' And that's part of the argument that was used in the Reliable decision, that sex is not just for procreation; that this case recognizes a right of auto-eroticism - in other words, masturbation."

"What's really great about it is, as I've said before, the argument is being listened to," Sirkin continued, "and that's why I've made the argument for the big picture about how important the Extreme case is ultimately, because that issue will resurface if there's an adverse ruling, and the person that really set the stage for it was Judge Lancaster, and it's great from that standpoint. I go back to what I said when I got the Freedom Isn't Free award, that Lawrence is the future, and we've just got to keep pounding away at it, and they keep listening to Jennifer [Kinsley, Sirkin's partner] and me."

The Fifth Circuit decision in Reliable Consultants relied heavily on the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas, which said that the government had no business interfering with (or criminalizing) the private sexual affairs of citizens. As Judge Thomas Morrow Reavley wrote in the Reliable decision, "Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court's conclusion, we hold that the Texas law burdens this constitutional right. An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right."

With the Fifth Circuit now on board with the right to use and sell "obscene devices," that leaves only some states in the Tenth and Eleventh Circuits - most notably Alabama, for its continued rejection of retailer Sherri Williams' similar arguments for the right to sell adult novelties - which continue to criminalize sales of the devices. The U.S. Supreme Court last year rejected Williams' cert petition, and with Texas declining to bring the issue before the high court, there remains an untenable conflict in the judicial circuits.

"There are only three circuits in which any state has one of these laws, and the Fifth has gone one way, the Eleventh the other way, with the Tenth yet to weigh in," said First Amendment attorney and AVN columnist Clyde DeWitt. "Since Mississippi and Texas are in the Fifth Circuit, and the Eleventh Circuit has knocked out Georgia's obscenity law, which includes the device law, the only states left where it is illegal to sell so-called 'obscene devices' are Alabama and Kansas."

"The emerging problem now is local ordinances, some of which are beginning to include special categories of adult novelty businesses and severely regulate them," DeWitt continued. "The problem, of course, is that novelties are not protected by the First Amendment like videos and magazines. The effect of Reliable Consultants on that type of ordinance remains to be seen."

Indeed, attorney Gary Krupkin, who represents Texas retailers Sara's Secret and Condoms To Go, is pushing forward with his lawsuit against Murphy, Garland and Rowlett Counties in Texas, all of which have local ordinances which define stores that sell novelties as "sexually oriented businesses," even though the stores do not sell, rent or display adult videos or other products which depict sexual conduct.

"I definitely think it's going to have an effect on our suit," Krupkin told AVN. "What the city of Garland is arguing - and Murphy and Rowlett are really kind of following after Garland; Garland is taking the lead in this - but what I think they're arguing is not necessarily that what we sell is so inappropriate. What they're saying is, they have a right to zone where the intimate devices are sold. I understand what they're saying regarding the zoning issue, but my way of thinking is this: The zoning issue says, in order to be zoned, you have to be a sexually oriented business, and here are the definitions of a sexually oriented business under our municipal statute, and one of the definitions of course is a bookstore, arcade, video store, that type of thing, and the other is a store that sells 'instruments, devices and paraphernalia that are used for specified sexual activities.' Well, the type of specified sexual activities they're talking about and the devices they're talking about were exactly the devices that were addressed in Reliable Consultants, so my way of thinking is, well, you have to completely read out of the ordinance that portion of the ordinance because those devices were found not to be criminal."

"I think that the entire Reliable Consultants case has been a watershed moment in constitutional jurisprudence," he continued, "because it recognizes and embodies that which was recognized by the Supreme Court in Lawrence and really is making what I think is a return to traditional American values, and the value I'm speaking about is individual privacy and recognition that the First Amendment means something more than just speech; it means expression. I also think it's a recognition that the opinion from the Fifth Circuit was a very well-reasoned opinion and based on a reasonable interpretation of not only what the state of the law is now, but the future evolving nature of this particular area of the law, and I've got to congratulate the State of Texas on recognizing that and deciding not to seek certiorari."

In any case, Sirkin believes a conviction under a local "obscene device" statute or zoning violation in the Texas counties would not withstand further judicial scrutiny.

"I know some of the counties have got that little quirk down there that they're not bound by Reliable," Sirkin said. "They claim in the state of Texas that they're only bound by the Supreme Court of the United States, but my feeling would be, boy, it would be awful hard - I know that their claim to be bound only by 'clearly established law' means 'clearly established by the Supreme Court,' but at least in the interpretation of the Fifth Circuit, in its recognition of Lawrence, which was in fact a United States Supreme Court decision, it would be very difficult for any district court to say that a contrary state court finding was not clearly erroneous.

"If in fact they would prosecute somebody and that person were convicted, they could then go through the state and they would have a tremendous shot at filing a petition for habeas, because the ruling of the state court, under the interpretation of the federal courts and the Fifth and Fourteenth Amendments, the state of Texas' ruling would be clearly erroneous under clearly established law, at least in the Fifth Circuit. They would grant a writ and the person wouldn't go to jail and the conviction would be set aside."

With such a clear win before the Fifth Circuit panel, and with the full Circuit having rejected an en banc rehearing on the issue, the status conference ordered by the district court should mean that Sirkin will be able to collect attorney's fees against one or both of the defendants - and that put Sirkin in a mood to laud both his client and PHE, Inc. - Adam & Eve - which joined the suit as a Plaintiff-Intervenor.

"Reliable has been one of the most delightful clients we have ever represented," he said. "Jennifer and I have done other work for them in their battle with Kennedale and they are among the nicest people we have ever represented. What I like about it is, indirectly, it was Jenner & Block that was a big sponsor - they took on that thing [Adam & Eve's lawsuit] in Mississippi; they only did it under state law, but they joined our lawsuit and it was a pleasure having them as an intervenor."

It's wins like this that energize Sirkin in his work protecting sexual freedoms, and he isn't shy about commenting on the future of that fight.

"It's exciting being a part of these battles, and the way I put it, with substantive due process, I really think that we're just at the beginning stage of it - and now I'll probably be called a communist who believes in masturbation, or something of that sort," he said, referring to recent right-wing slurs on the reputation of presidential candidate Barack Obama. "I'm just waiting for the black helicopters to swoop down and find some microfilm hidden in my pumpkin patch!"