Without saying why or why not, the U.S. Supreme Court has declined to hear an appeal to Alabama's law making it a crime to sell adult toys, under which first-time violators face fines up to $10,000 or jail time up to a year.
"The evidence shows that this case is not about novelty items, naughty toys or obscene matter. It is a case about human sexuality and extremely intimate acts," said attorneys for the American Civil Liberties Union, which represented those who challenged the Alabama law, including two vendors.
First Amendment and adult entertainment attorney Lawrence G. Walters agreed, adding he had hoped the Supremes would take the appeal and perhaps offer more clarification, in any ruling, on the breadth of constitutional protection of sexual privacy.
"It would have been nice to know if (the U.S. Supreme Court should think) these new ordinances violate the right of sexual autonomy that Lawrence v. Texas described," Walters said, referring to the controversial Texas anti-sodomy law the high court struck down two years ago. "And since it's a fairly new constitutional theory, it's in need of greater definition so the lower courts know how to apply it. This isn't the last we've heard of this issue. These other ordinances will be challenged."
Fellow First Amendment and adult entertainment attorney J.D. Obenberger, based in Chicago, said the high court deciding not to hear the appeal isn't exactly the end of challenging Alabama's law. "It's just going to be remanded back for trial," Obenberger said when reached for comment. "The U.S. Supreme Court, generally speaking, doesn't want to get involved in the middle of a case. You can't really derive any other inferences from (the decline to hear the current appeal)."
Alabama, the ACLU said, has never explained or clarified "why sales of performance enhancing drugs like Viagra, Cialis and Levitra and even ribbed condoms are not similarly prohibited." The ACLU also noted Alabama never contested evidence that a reported 20 percent of American women use vibrators and ten percent of sexually active adults use vibrators in their regular sex lives.
The Alabama law, enacted in 1998, was struck down by a federal judge, but a three-judge panel of the 11th U.S. Circuit Court of Appeals upheld the law on a 2-1 vote. The law bars distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs," though it allows ordinary vibrators and body massagers which are not marketed or designed as sexual aids primarily, as well as making exemptions for sexual devices having what the law calls "a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose."
"It's an issue that more and more states are confronting, and one that more and more retailers are being faced with, because of this wave of sex toy ordinances we see in the country," Walters told AVNOnline.com, alluding to other states which have passed similar ordinances, though some—in Colorado, Kansas, and Louisian—have been struck down in the lower courts thus far. Georgia, Texas, and Mississippi also have adult toy and sex device restrictions, and Mississippi's has already survived at least one court challenge.
