Despite the fact that there are no recorded deaths due to excessive vibrator use in the United States, the U.S. Supreme Court nonetheless refused, without comment, to accept a petition for certiorari filed on behalf of Alabama retailer Sherri Williams and several others, appealing a decision by the Eleventh Circuit Court of Appeals which remanded Williams' suit to the federal district court for reconsideration.
It was the second time the Eleventh Circuit had remanded the case – and the trial judge, Lynwood Smith Jr., isn't getting any younger.
"Judging by history, it'll be six to eight months by the time our case gets on the docket to hear the oral arguments," calculated Williams, "which I seriously doubt, because there's really nothing more to orally argue. We've been before Judge Smith twice, so it'll probably take maybe six months, really, because there's nothing to schedule. I hope the guy lives that long. He's like 70-something."
The cert petition was filed on Dec. 23, 2004, following the Eleventh Circuit's fiercely divided decision six months earlier to remand the case, and its later refusal of a rehearing en banc.
“This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or about sexual devices,” wrote dissenting Judge Rosemary Barkett, who won kudos from attorney Luke Lirot for her excellent research and analysis in the Peek-A-Boo Lounge case in 2003. “It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”
That's Williams' take on the issue as well.
"A lot of people still believe that this case is only about overturning the sex-toy law in Alabama, but it's not," Williams told AVN.com. "What it is really all about is, we have been fighting to prove that the Constitution provides a right to sexual privacy. We've been suing for a fundamental right to sexual privacy. All of the litigation and all of the briefs and everything we've filed, even though sex toys was the reason we're in court, the basis which we are using to overturn this law is 100 percent based on the right to sexual privacy. The district court understood that, but the appeals court [majority] refuses to acknowledge that there's an association” between the sale of sex toys and Americans' privacy rights.
Williams' view was most recently vindicated in the opinion dismissing the indictments in United States v. Extreme Associates, where Judge Gary Lancaster melded rights contained in the First, Fifth and Fourteenth Amendments of the Constitution with Supreme Court decisions in, among others, Stanley v. Georgia, Lawrence v. Texas, Griswold v. Connecticut and City of Los Angeles v. Alameda Books. But Judge Stanley F. Birch, Jr., writing for the Eleventh Circuit majority, spent nearly 40 pages attempting to distinguish the sexual privacy liberty interests of Lawrence from the Supreme Court's holding in Washington v. Glucksberg that physicians had no liberty interest in assisting terminally-ill patients to commit suicide – a bit of a stretch, to say the least, especially since the more relevant case would have been Griswold's holding that physicians can legally prescribe birth control devices for their Connecticut patients.
"I read the article on Extreme, about Sirkin and Reed Lee's comments, and I especially noted that Lou Sirkin said the day's coming soon where the Fourth and First Amendments will soon be merged," Williams stated. "If you can read [obscenity] in the privacy of your own home, how is that different than if you want to buy toys and use them in the privacy of your own home? How else is it going to get there if somebody doesn't make it and sell it?"
But Judge Birch had no problem making that distinction in his opinion in Williams.
"The dissent also flatly states that the Lawrence Court rejected public morality as a legitimate state interest that can justify criminalizing private consensual sexual conduct,” Judge Birch wrote, “but this conclusion ignores the obvious difference in what this statute forbids and the prohibitions of the Texas statute. There is nothing ‘private’ or ‘consensual’ about the advertising and sale of a dildo. And such advertising and sale is just as likely to be exhibited to children as to ‘consenting adults.’... One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principal has been jettisoned wholesale..."
However, Judge Lancaster dealt with the "exhibition to children" issue, noting that there are less restrictive ways to prevent that than a complete ban on the material – and since Lawrence didn't deal with commercial interests, perhaps when the Supreme Court next considers the case of a defendant convicted of selling obscenity or an "obscene device," it will expound on the liberty interests inherent in selling such material at that point, overturning several prior decisions such as United States v. Orito in the process.
As for Sherri Williams, while the rejection by the Supreme Court is "depressing," and she fears that the current injunction against Alabama enforcing its obscene device statute against her may be lifted in upcoming legal proceedings, she's currently turning much of her attention to her newest business, a smoking lounge cum adult video store.
"In all my years of being in business, I never carried videos, I never believed in the exploitation of women, and it didn't fit well with my upscale boutique-type environment," Williams explained, "but just recently, space came open next door to my existing store, and what I did was go ahead and rent that. I put a hookah bar, a smoking lounge in the front, and as you enjoy that, you can move on back towards the back of the room, where I have shot glasses and lighters and stuff for sale, and at the very back, I put adult videos and magazines and that sort of thing. I called the store 'Hipocratease,' mainly because of the hypocrisy of my life: I set out to help women by selling toys and the government told me I can only sell porn."
Williams spent much of her time at the Adult Entertainment Expo scoping out couples-friendly videos to stock for her largely transient Huntsville patrons, many of whom are government contractors working at the nearby Marshall Space Flight Center and the Redstone Arsenal.
"As this business has grown, of course, women have become more sexually overt and have empowered themselves, so my views have changed as well," Williams reflected. "I don't see all exploitation of women as bad; just like everyone else, I've changed my tune, and of course, I have adult video stores, but had I been given the freedom of complete and utter choice, I probably still today would not carry them. But they're now an economic necessity, and because society has come around to accept it more so, I have to realize that perhaps my beliefs are somewhat old school. The adult videos pay the rent, as they always do."
