(Link) The 11th US Circuit Court of Appeals has been buzzing with activity over the constitutionality of banning love utensils. And giggling over those folks who foolishly leave the batteries in when packing for a trip.
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By Howard J. Bashman
Law.com
History fails to attribute to patriot Patrick Henry the statement "Give me sex toys or give me death," so therefore it's not surprising that the legal battle continues over whether the right to obtain and use appliances intended for sexual gratification is included within the liberty protected under the U.S. Constitution.
A number of states still have laws that make it a crime to sell or distribute sex toys, and over the past several years there has been a notable amount of litigation throughout many southern states concerning whether these laws remain constitutional in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, which holds that states cannot outlaw homosexual sodomy between consenting adults.
The 11th U.S. Circuit Court of Appeals -- the federal appellate court that hears appeals from Alabama, Florida and Georgia -- has in recent years become a veritable hub for sex toy–related litigation. In July 2004, the 11th Circuit examined whether an Alabama law prohibiting the sale of sex toys violated a purported constitutional right to sexual privacy. By a vote of 2–1, the court rejected the challenge to the Alabama law.
The conclusion of the majority opinion in Williams v. Attorney General of Alabama explains: "we hold that the district court committed reversible error in concluding that the Due Process Clause 'encompass[es] a right to use sexual devices like ... vibrators, dildos, anal beads, and artificial vaginas.'" Yet instead of terminating the case, the 11th Circuit remanded the lawsuit so that an Alabama–based federal district court could consider whether public morality continued to provide a rational basis for the law in the aftermath of Lawrence v. Texas. Late last month, in a 56–page ruling, the U.S. District Court for the Northern District of Alabama entered final judgment in favor of Alabama, rejecting all challenges to the law. The time for appeal from that ruling has not yet expired, so it is possible that this case could make yet another trip to the 11th Circuit.
Next, in August 2005, the 11th Circuit confronted a case imparting the lesson that batteries should be removed from one's sex toys before packing them in checked luggage on a commercial airline flight. In February 2002, Renee Koutsouradis was returning home to Florida from a vacation that she and her husband had taken in Las Vegas. She was flying Delta Air Lines, which necessitated a change of planes in Dallas. When the luggage handlers loading the plane to Florida noticed that a suitcase was emitting a mysterious buzzing noise, Delta's gate agent summoned Koutsouradis to the door of the aircraft.
According to an Associated Press account of the incident, Koutsouradis "says she told the agent what it was: an adult toy that she and her husband had just bought on their trip to Las Vegas. [S]he says the agent took her to the bag on the tarmac and forced her to open it 'and remove the adult toy and hold it up for visible view.' One side of the plane's passengers witnessed the scene, ... as three male Delta employees nearby 'began laughing hysterically' and offered 'obnoxious and sexually harassing comments.'"
In the proud American tradition, whatever embarrassment Koutsouradis experienced as a result of the incident was eventually outweighed by a realization that she could sue Delta Air Lines for compensatory and punitive damages. The lawsuit did not have a happy ending, however, as the U.S. District Court for the Middle District of Florida ruled in favor of Delta on plaintiff's claims for breach of contract of carriage and intentional infliction of emotional distress. And, in August 2005, the 11th Circuit affirmed the trial court's ruling in Delta's favor in an opinion explaining that the testimony under oath from the airline's employees contradicted the lawsuit's allegations that anyone had been rude to Koutsouradis or had caused her to display the item so that it was visible to others.
Most recently, in February 2006, the 11th Circuit issued a ruling in which the seller of sex toys achieved victory. The case arose in Georgia, where an obscenity statute prohibits the sale, or advertisement for sale, of "[a]ny device designed or marketed as useful primarily for the stimulation of human genital organs." Yet the statute contains exceptions allowing the sale of such devices to any "person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material" and also to any "person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist."
A store in Cobb County, Ga., that desired to sell vibrators and dildos filed suit in federal court challenging the law's blanket prohibition against advertising of devices designed or marketed primarily for the stimulation of human genital organs. The lawsuit claimed that the prohibition was unconstitutionally overbroad, in violation of the store's right to engage in lawful commercial speech, because the Georgia statute expressly allowed the sale of sex toys to several groups of potential purchasers.
Last month, the 11th Circuit agreed, holding that Georgia's obscenity statute violates the First Amendment. It remains to be seen whether the 11th Circuit's ruling entirely voids the law, thereby enabling sex toys to be advertised and sold to everyone within Georgia. It also remains to be seen whether Georgia will replace the law with a ban on the sale and advertising of sex toys that contains no exceptions.
The federal district court's decision upholding the constitutionality of Alabama's sex toy ban, and the distinct possibility that Georgia will enact a new sex toy ban to replace its former law, all but guarantees that the 11th Circuit will continue to handle sex toy cases in the foreseeable future. The lessons learned thus far from the 11th Circuit can be summarized as follows: Sex toy bans are constitutional, except for when they violate First Amendment commercial speech rights, and please be sure to remove the batteries before placing sex toys into checked luggage.
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