Federal appeals panel upholds Alabama’s ban on sex toys

Monday, October 16, 2000

An Alabama obscenity law that criminalizes the commercial distribution
of sex toys is constitutional, a federal appeals court panel has ruled.

In 1998, the Alabama Legislature amended its obscenity law, making it
illegal for anyone to knowingly distribute “any obscene device or any device
designed or marketed as useful primarily for the stimulation of human genital

The law provides that a first-time offender could be punished by a
maximum fine of $10,000 and one year in prison. A subsequent violation would be
a felony and lead to a longer prison sentence.

In 1998, six individuals sued state Attorney General Bill Pryor and
the district attorney of Madison County, challenging the provision.

The plaintiffs, who include both the owners of adult novelty shops and
users of the products, contend that some of the devices are necessary to treat
sexual dysfunction.

They alleged in their lawsuit that “by restricting the sales of these
devices to plaintiffs, Alabama has acted in violation of the fundamental rights
of privacy and personal autonomy that protect an individual's lawful sexual
practices guaranteed by the First, Fourth, Ninth and Fourteenth Amendments of
the United States Constitution.”

In August 1999, U.S. District Judge Lynwood Smith struck down the law,
ruling that it was “overly broad.” Smith also noted that people who used the
devices would be “denied therapy for, among other things, sexual

The judge wrote that “a majority, or at least a significant minority,
of the proscribed devices, as a matter of law, are not obscene under any
established definition of obscenity.”

However, the district court also ruled that the plaintiffs did not
have a fundamental right to use sexual devices. Fundamental rights are
important in constitutional cases, because laws that burden fundamental rights
are subject to greater judicial scrutiny.

On appeal, a three-judge panel of the 11th U.S. Circuit Court of
Appeals unanimously reversed in Williams v.

“We conclude the district court erred in determining the statute lacks
a rational basis,” the panel wrote in its Oct. 12 opinion. “The State's
interest in public morality is a legitimate interest rationally served by the

“However, misguided the legislature of Alabama may have been in
enacting the statute challenged in this case, the statute is not
constitutionally irrational under rational basis scrutiny because it is
rationally related to the State's legitimate power to protect its view of
public morality,” the panel wrote.

The panel did send the case back to the lower court to consider
challenges brought by the four plaintiffs who are users of the products to see
if the law violates their specific rights.

“We remand the as-applied challenges for due consideration by the
district court because the record and stipulations in this case simply are too
narrow to permit us to decide whether or to what extent the Alabama statute
infringes a fundamental right to sexual privacy of the specific plaintiffs in
this case,” the panel concluded.

Calls to the plaintiff's attorney and the Alabama attorney general's
office were not returned.

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