Some Novelty Manufacturers Still Waiting On 5th Circuit Sales

NEW ORLEANS - Concerned adult novelty manufacturers are wondering if it's safe to sell so-called "obscene devices" in the Fifth Federal Circuit - Texas, Louisiana and Mississippi - since the Fifth Circuit Court of Appeals has yet to decide if or when it will reconsider its ruling in Reliable Consultants, Inc. v. Earle.

"We haven't heard anything yet from the Court," said First Amendment attorney Jennifer Kinsley, a member of the team representing Reliable in the original appeal, handed down on Feb. 12, which overturned a Texas statute making it illegal to promote or sell sexual devices, and remanded the case to the trial court for reconsideration in concert with its ruling.

The government quickly petitioned the Court for an en banc reconsideration of its decision, which ruling was largely based on the right to sexual privacy implicit in the U.S. Supreme Court's 2003 ruling in Lawrence v. Texas, but as noted in our previous story, the Fifth Circuit rarely grants en banc hearings, and there is no deadline by which the Court has to decide whether to hear the case.

"We filed our response to the government's petition to rehear on March 9 or 10," Kinsley said. "I remember there was a big snowstorm going on at the time. But we haven't heard anything since then, so we're just sitting here, waiting. But as of right now, the law's no good in Texas, so that's some redemption."

As things stand now, manufacturers who supply realistic dildos, vibrators and other devices "designed or marketed as useful primarily" to "stimulate ... another's genitals" to retailers in the Fifth Circuit can point to the Reliable decision as their basis for the legality of such sales, and that status won't change unless one of three things happens: 1) The Fifth Circuit grants the en banc hearing, and the majority of judges rehearing the case overturns the original three-judge panel's decision; 2) The Fifth Circuit rejects the en banc petition, the case is reheard by the trial court, and that court somehow, even applying the rationale laid out in the Fifth Circuit opinion, issues an opinion that upholds the "obscene device" law (highly unlikely); or, 3) the Fifth Circuit rejects the en banc petition, the government petitions the U.S. Supreme Court to hear the case (which it might, considering that the Fifth Circuit holding conflicts with the Eleventh Circuit opinion in the Sherri Williams case) and, several months from now, that court overturns the Fifth Circuit's ruling.

Needless to say, novelty manufacturers wishing to sell their wares in the Fifth Circuit should consult with their attorneys as to any legal liability they might face from such sales, but at this moment, it is legal to sell the vast majority of commercially available sex toys throughout the Fifth Circuit.