Adult Business Law

On February 12, the Fifth Circuit ruled that the government (in this case, the State of Texas) does not have the power to prohibit the sale of sexual devices to consenting adults.  Aside from providing the guilty pleasure of seeing the second highest court in the country repeatedly use words like “dildo” and “artificial vagina”, the decision in Reliable Consultants, Inc. v. Earle, ___ F.3d ____ (5^th Cir. Feb. 12, 2008) could have a dramatic effect on many of the laws that currently restrict sexually oriented businesses.

 

Before starting the celebrations, however, it is important to remember that this decision is almost certainly not the last word that we will hear on this subject.  The State of Texas has the right to ask for a rehearing on the issue—something that will almost certainly happen because of the groundbreaking nature of the decision.  There is also the possibility that the decision will be appealed to the U.S. Supreme Court—something else that seems likely given that the Fifth Circuit’s opinion is directly at odds with the decision reached by the Eleventh Circuit last Valentines Day in Williams v. Morgan, 478 F.3d 1316 (11^th Cir. 2007).

 

Keeping in mind that the Reliable Consultants decision is, at best, merely the beginning of a long road, there is reason to believe that it may be a sign that federal courts are finally (if tentatively) stepping out of the 19^th Century and, thus, there is some hope that human sexuality and sexual expression may start to get the constitutional protections that have been denied for the last 50 years.

 

 

The law in question in Reliable Consultants is Section 43.23 of the Texas Penal Code, which makes it a third degree felony to to market, sell, or even give away any device that is designed or marketed as being primarily useful “for the stimulation of human genital organs.”  Section 43.23 is one of three remaining state laws in the U.S. that prohibit the sale of sex toys, and it is rarely, if ever, enforced any more.  In fact, as one large online retailer of sex toys has noted,  it was probably “more honored in the breach than in the observance.”  Nonetheless, it is still on the books, and, at least once within the last four years, someone in Texas has been arrested and charged with violating the statute.

 

Fearing that they might be the next target for prosecution, two retailers (one with local outlets and one large online seller) filed a lawsuit in federal court seeking to have Section 43.23 declared to be unconstitional.  One of their arguments for unconstitionality of the statute was based on the 2003 decision by the U.S. Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003).  The Lawrence decision is largely remembered because it overturned state sodomy laws, which made certain homosexual practices illegal, but its significance extends beyond sodomy.

 

As the Fifth Circuit noted in its decision, the Lawrence opinion held—probably for the first time in U.S. legal history—that simply viewing a “particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”  Based on the Lawrence holding, the Fifth Circuit came to a natural conclusion that the government cannot attempt to intrude upon “consensual private intimate conduct” simply because it finds it morally offensive.  Therefore, the Fifth Circuit reasoned, the Texas law prohibiting the distribution of sex toys is improper because its only purpose is to restrict the ability of adults to engage in certain types of sexual behavior in the privacy of their own home—a purpose that can never be legitimate after the Lawrence decision.

 

To most modern Americans, the result in Reliable Consultants probably seems a little obvious.  After all, does it really make any sense that the government should restrict the sale of harmless items simply to limit the ways in which its citizens can acheive sexual gratification?  And does it really matter that a law was overturned when it really wasn’t being enforced anyway?

 

If the only impact of Reliable Consultants was that it overturned an outdated, quaint Texas law that wasn’t enforced much anyway, it would hardly be worth writing about.  But there are at least three aspects of the decision that make, it potentially, one of the most significant decisions ever for sexually oriented businesses.

 

 

1.  Sexuality may have finally been rescued from the First Amendment ghetto.  For much of its history, sexually oriented businesses in the United States have been tied to First Amendment arguments in their attempts to defend their right to exist and due business in places that are hostile to their presence.  The results of these efforts have been mixed, at best, with the Supreme Court making facially absurd statements like the one in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).  In that case, the Court decided that nude dancing was speech that was covered by the First Amendment, but created a new category of constitutional rights—”marginal protection,” meaning, of course, that its really not protected at all.

 

Reading the First Amendment decisions regarding sexually oriented businesses that have been issue in the last 40 years is a uniquely frustrating task.  It is virtually impossible to find any consistent legal principles from the cases.  What becomes obvious rather quickly, however, is that Federal Judges are not comfortable with nonverbal sexual speech as a protected right under the First Amendment.  As a result, sexually oriented businesses have become largely resigned to accepting the tyranny of the regulatory restrictions that are allowed on commercial speech—even when those regulations are so restrictive that it is a practical impossibility for a business to operate in a community.

 

The decision in Reliable Consultants offers hope for a way out of the free speech ghetto for at least some sexually oriented businesses, which should be a welcome change.  After all, as much as some may want to argue that a dildo or a nude table dance are forms of “speech,” most people—federal judges included—have a difficult time with that classification.

 

What the Fifth Circuit has done is expressly acknowledged what most Americans have probably been thinking for some time: regardless of whether certain sexually related activities qualify as speech, the government really doesn’t have any right to intrude on private sexual behavior solely for the purpose of trying to shape “morality.”‘

 

 

2.  Somebody Has Finally Acknowledged the Link Between Personal Freedoms and Commerce.  One of the implicit arguments made by the State of Texas in defense of the statute was that it did not outlaw the possession of sex toys, only distribution.  Therefore, Texas was not intruding on intimate behavior by adults, only on commercial sales of devices that it considers immoral.  This position is not surprising because it is the primary rationale used by the 11th Circuit to uphold Alabama’s sex toy statute in Williams v. Morgan.  In that case, the 11th Circuit also acknowledged that the Lawrence prohibits a government from outlawing private sexual behavior solely based on moral concerns.  But the 11th Circuit then sidestepped the issue by claiming that Lawrence only protects private conduct and does not extend to commercial activities.

 

The obvious problem with the 11th Circuit’s decision is that ignores the realities of everyday life.  As the Fifth Circuit recognized in Reliable Consultants, outlawing the sale or distribution of an item is practically the same as outlawing it all together.  Texas’s position was that it could tell its citizens, “we would never dream of telling y’all that you can’t use a dildo in the privacy of your own home, but you’d better be pretty good at making them yourself, because you sure can’t buy them here.”  The Fifth Circuit rightly understood the silliness of Texas’s position.

 

What is significant about the Fifth Circuit’s somewhat obvious rejection of Texas’s position is that it is a rare, or maybe even unprecented, acknowledgement in U.S. jurisprudence that personal freedoms are often inseparable from commerical activities.  In contrast, the history of the 1969 decision by the Supreme Court in Stanley v. Georgia, 394 U.S. 557 (1969), demonstrates how often federal courts have failed to recognize this obvious truth.  In Stanley, law enforcement officers discovered obscene materials in a criminal defendant’s home while searching for evidence of his illegal gambling operation.  The defendant was subsequently arrested and convicted under state law for possession of obscene materials.  The Supreme Court overturned the conviction, holding (in a decision that seems remarkably like the Lawrence decision from 34 years later) that the government had no authority to prohibit citizens from having and viewing obscene materials in the privacy of their own homes.

 

The problem with Stanley, however, is that it has consistently been limited and minimized by the federal courts and by the Supreme Court itself.  Although the Supreme Court recognized the right of individuals to privately view obscene materials, no court has ever recognized the right to sell, distribute, or purchase those materials.  In essence, the Supreme Court has taken the same position with regard to obscenity that Texas attempted to take with regard to sex toys, telling citizens, “you have every right to view obscenity in the private of your home, but good luck trying to find it because we will still allow states to prosecute anyone who tries to sell it to you.”

 

The most significant aspect of Reliable Consultants, then, may very well be the simple recognition by the Fifth Circuit that recognizing and protecting a private, personal right can be be fruitless if the courts refuse to protect the rights of businesses to provide materials that support and enable the exercise of that right.

 

3.  The Right of Privacy May Offer a Way Out of the Obscenity Morass.  The current state of obscenity law in the United States is an unqualified mess.  In the 1960s and 1970s, the Supreme Court issued a series of opinion that culminated in the infamous obscenity test in Miller v.California, 413 U.S. 15 (1973).  The Miller test, which is undoubtedly familiar to most people in the adult industry, defines obscenity by reference to a complicated series of factors that are to be measured based on “community standards.”

 

As a result of the Miller test, selling or distributing sexually explicit materials has carried an undeterminable level of risk for the last 35 years.  Items that are not obscene in one community could be considered obscene in a different community just a few miles away. Or, even more puzzling, materials could be obscene or not obscene on different days in the same community, depending entirely on how members of different juries might apply “community standards.”  More recently, the problem has become more pronounced as the Department of Justice has stepped up efforts to prosecute mail-order sellers of DVDs for selling movies that violate the “community standards” in especially conservative places like Utah and Tampa, Florida.

 

For the indicted sellers of DVDs (and probably a substantial number of Americans) it must seem hopelessly unfair to be unable to know whether filling an internet DVD order could result in an indictment for obscenity.  The Supreme Court seems unlikely, however, to revise its definition of obscenity any time soon.

 

The Reliable Consultants decision may offer some hope for the obscenity problem.  When Miller was decided in 1973, the primary forum for obscenity was adult movies shown in theatres.  By definition, the right to privacy that was the basis for the decision in Stanley in 1973 could not protect the theatres who showed these materials because they were public venues.  Now, the primary venues for showing of the materials that are accused of being “obscene” is private homes—something that was explicited protected by the Supreme Court in Stanley.

 

If Reliable Consultants survives the additional scrutiny by the Fifth Circuit and the Supreme Court that is almost certain to occur, it may be the basis for a new defense for those accused of purveying obscenity.  Because private citizens have a right to view obscenity in the privacy of their own homes, the Constitution must also protect those who sell obscenity materials for private viewing.  Otherwise, just as the right to use sexual devices in private would be meaningless without a place to buy those devices, the right to privately view obscene materials would also be useless without the ability to legally buy them.