Back in 1999, this column reported that Sherri Williams — as charming, intelligent and, most significantly, as tenacious an individual you could ever encounter — had succeeded in securing a federal judicial finding that one of those absurd "obscene device" statutes was unconstitutional. This author appeared with her on a panel at one of the first Adult Entertainment Expos shortly after that initial victory, and was duly impressed.
What these statutes do is criminalize the sale of devices "designed or marketed as useful primarily for stimulation of human genital organs." This is the paradigm of what the late Justice Potter Stewart — who also coined the much-quoted phrase in obscenity jurisprudence, "I know it when I see it" — might have designated, as he did with respect to Connecticut's absurd 19th century anti-contraceptive statute, as "an uncommonly silly law."
In the 1970s, Morality in Media crusaded around the country seeking to get obscene-device statutes enacted everywhere. The idea was that to outlaw such devices would strike a severe economic blow to the heart of the thriving adult-bookstore industry.
Their first success was Georgia, which was on its own crusade against adult bookstores in general and, in particular, one Michael Thevis, who was said to have had a hand in most of such stores there. Parenthetically, if you want to read about the downfall of Mr. Thevis and his empire, check out United States v. Thevis, 665 F.2d 616 (5th Cir. 1982), which reads like one of those "real crime" paperbacks, and details the allegations that landed him in maximum security federal custody for life. In any event, the challenge to Georgia's device statute was a disaster, rejected all the way to a summary approval by the United States Supreme Court (i.e., an approval on the merits, but without an opinion, under a procedure that is now for the most part not available but which, unlike denial of certiorari, has some precedential impact on the lower courts). Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), dismissed for want of a substantial federal question, sub nom Sewell v. Georgia, 435 U.S. 982 (1978). Since then, here is the scorecard of the six other states that followed Georgia's lead in enacting device statutes:
Texas: Constitutional. Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020 (5th Cir. 1981); Yorko v. State, 690 S.W.2d 260 (Tex.Crim.App. 1985).
Colorado: Unconstitutional. People ex rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348 (Colo. 1985).
Kansas: Unconstitutional to the extent of potential application to therapeutic use. State v. Hughes, 246 Kan. 607, 792 P.2d 1023(1990).
Louisiana: Unconstitutional. State v. Brenan, 772 So.2d 64 (La. 2000).
Mississippi: Constitutional. PHE, Inc. v. State, 877 So.2d 1244 (Miss. 2004).
Alabama: See below.
A handful of cities have joined in as well but, in many states, cities are precluded from enacting ordinances regulating obscene devices because of a doctrine called "preemption" by state law. See Commonwealth v. Rich, 63 Pa.Cmwlth. 30, 437 A.2d 516 (Pa. Cmwlth. 1981)(Philadelphia; constitutional) Videophile, Inc. v. City of Hattiesburg, 601 F.Supp. 552 (S.D. Miss. 1985)(Hattiesburg, Mississippi; preempted).
The original Sherri Williams opinion, handed down by the United States District Court for the District of Alabama, now referred to as "Williams I", was so persuasive that the Louisiana Supreme Court agreed with it, striking down Louisiana's matching statute, as noted above. So, here is the litany of decisions that followed: Williams v. Pryor, 41 F.Supp.2d 1257 (N.D.Ala.1999) ("Williams I"), rev'd., 240 F.3d 944 (11th Cir. 2000) ("Williams II"); Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002) ("Williams III"), rev'd., 378 F.3d 1232 (11th Cir. 2004) ("Williams IV"); Williams v. King, ___ F.Supp.2d ___, 2006 WL 515527 (N.D. Ala., Feb 28, 2006) ("Williams V"). Certain to follow will be "Williams VI", which will be the appeal to the Court of Appeals for the Eleventh Circuit; and likely "Williams VII" in the United States Supreme Court.
Having reviewed this tale of Sherri Williams and vibrators, you still may be wondering how Justice Scalia fits into this equation. Well, recall that in 1985, the Supreme Court in a 5-4 decision upheld a Georgia law criminalizing consensual homosexual activity, Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986), and that a few years back it overruled Bowers in a 5-1-3 decision, striking down a materially identical Texas statute. Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). If you were not aware already, in his dissent Justice Thomas proclaimed the Texas law, like the Connecticut birth-control statute, as "uncommonly silly," claiming that if he were a member of the Texas legislature (no chance, unless the Court upends Tom DeLay's gerrymandering of the entire state), he would vote to repeal it. He was joined by Justice Scalia, who registered a blistering dissent, including making a rather profound observation:
"The Texas [sodomy] statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are 'immoral and unacceptable,' ... the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, 'furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual'.... The Court embraces instead ... 'the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,' .... This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review."
Now, to most of the readers of this publication, the notion that government has no legitimate interest in enacting laws against bigamy, adultery, adult incest, bestiality, and obscenity is pretty appealing, as it likely is to a majority of Americans. But, at least as to the obscene device issue, there certainly is more than just a thread of logic to the notion that, if it is beyond the power of government to prohibit two individuals of the same gender from privately engaging in sexual activities, it is likewise overreaching to forbid the purchase of items that are designed for acts of private masturbation. And that is the issue that has plagued the federal courts in the buckle of the Bible Belt in the Sherri Williams case since Lawrence v. Texas was decided.
We can only hope that Sherri Williams continues to exhibit the staying power that has been evident in the roughly eight years since she first brought her meritorious case against Bill Pryor. You may recall that he then was the Bible-toting attorney general of Alabama who, thanks to the snow job that the Republicans have put over on America, is now on the federal Court of Appeals for the Eleventh Circuit. This is the court that will, for the third time, hear the appeal of the most recent decision in Sherri Williams' case; the same court that, in response to Alabama's claim that "banning commerce in sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation or familial relationships" is tied to the State's legitimate interest in notions of social morality, arrived at the following conclusion, which is enough to make any rational American sick:
"A statute banning the commercial distribution of sexual devices is rationally related to this interest. Alabama argues 'a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate legislative interest in discouraging prurient interests in autonomous sex' and that 'it is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State.' The criminal proscription on the distribution of sexual devices certainly is a rational means for eliminating commerce in the devices, which itself is a rational means for making the acquisition and use of the devices more difficult. Moreover, incremental steps are not a defect in legislation under rational basis scrutiny, so Alabama did not act irrationally by prohibiting only the commercial distribution of sexual devices, rather than prohibiting their possession or use or by directly proscribing masturbation with or without a sexual device." 240 F.3d at 950.
We shall see.
(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN's offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
