Dildos 1, Texas 0

Texas has a statute that criminalizes advertising, selling, giving, lending or otherwise distributing an “obscene device,” which the law defines as any device “designed or marketed as useful primarily for the stimulation of human genital organs.”

Interestingly enough, there’s a statutory affirmative defense that authorizes promoting obscene devices for “a bona fide medical, psychiatric, judicial, legislative, or law enforcement purpose.” Presumably, then, a vendor is in the clear if he markets fuck dolls for exclusive use in judges’ chambers, legislators’ offices and/or police department break rooms, assuming of course that dumping a load from time to time during the work day qualifies as “a bona fide . . . judicial, legislative, or law enforcement purpose.”

The statute doesn’t reach possession or use of “obscene devices.” You can own or use a twenty-inch double donger, but you can’t buy one from a vendor (since vendors can’t sell them) or borrow one from a friend. The maximum period of incarceration for violating the statute is two years.

A couple of retail sex toy sellers filed suit in federal district seeking a declaration that the Texas statute violated the substantive component of the Fourteenth Amendment’s Due Process Clause as well as the retails’ free speech rights under the First Amendment. Yesterday, the U.S. Court of Appeals for the Fifth Circuit sided with the retailers on the due process claim by a 2-1 vote. Reliable Consultants, Inc. v. Earle (pdf, 22 pages).

The plaintiffs’ due process challenge wasn’t based on any alleged Fourteenth Amendment right to advertise and distribute dildos. Instead, the retailers advanced the individual right of potential customers “to engage in private intimate conduct in the home without government intrusion.”

The state claimed that the retailers lacked standing to assert the rights of third parties. Rejecting that claim was a veritable no-brainer for the Fifth Circuit, which simply noted that in Griswold v. Connecticut, 381 U.S. 479 (1965) — the case that shot down a statutory ban on contraceptive use — the Supreme Court allowed pharmacists to assert the rights of their customers.

Applying Lawrence v. Texas, 539 U.S. 558 (2003), in which SCOTUS held unconstitutional a Texas statute criminalizing “sodomy” between consenting adults, the Fifth Circuit found that the dildo statute violated due process. Per Lawrence, the right at issue isn’t a right to jack off with sex toys but rather the broad “right to be free from governmental intrusion regarding ‘the most private human contact, sexual behavior.'” The statute “impermissibl[y]” and “heavily” burdened that by rendering people “unable to legally purchase” sex toys in Texas. Hell, you can’t even lawfully lend them or give them away. The state advanced the usual array of “morality”-based justifications for the law, all of which the court rejected in convincing fashion.

The majority also reinstated the retailers’ First Amendment commercial speech protection claim, but did not address the claim on the merits. The majority surmised that the commercial speech claim would likely be superfluous in view of its Fourteenth Amendment holding.

Earle is at odds with Williams v. Morgan, 478 F.3d 1316 (11th Cir.), cert. denied, 128 S. Ct. 77 (2007), in which the U.S. Court of Appeals for the Eleventh Circuit upheld a substantially similar Alabama statute against a Lawrence-based due process attack.