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CASES

Reliable Consultants v. Earle 2008 WL 383034 (5th Cir. Feb. 12, 2008)

5th Circuit holds that Texas statute impermissibly burdens individual's substantive right to "engage in private intimate conduct of his or her choosing."

The 5th Circuit determined that a Texas statute (Tex. Penal Code § 43.21) banning the sale and promotion of "sexual devices" - upheld in the district court - cannot "define sexual devices themselves as obscene" and therefore unconstitutionally allows government intervention in the private use of such devices.

The court's reasoning proceeded as follows (excerpts taken from the opinion):

Because of Lawrence, the issue before us is whether the Texas statute impermissibly burdens the individual’s substantive due process right to engage in private intimate conduct of his or her choosing. Contrary to the district court’s conclusion, we hold that the Texas law burdens this constitutional right.

An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right. This conclusion is consistent with the decisions in Carey and Griswold, where the Court held that restricting commercial transactions unconstitutionally burdened the exercise of individual rights. Indeed, under this statute it is even illegal to “lend” or “give” a sexual device to another person. This further restricts the exercise of the constitutional right to engage in private intimate conduct in the home free from government intrusion. It also undercuts any argument that the statute only affects public conduct . . .

The State’s primary justifications for the statute are “morality based.” The asserted interests include “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.” These interests in “public morality” cannot constitutionally sustain the statute after Lawrence. To uphold the statute would be to ignore the holding in Lawrence and allow the government to burden consensual private intimate conduct simply by deeming it morally offensive

Following this line of reasoning, the 5th Circuit finds itself in opposition to the 11th Circuit over the application of Lawrence v. Texas. The basic question is whether Lawrence found a fundamental constitutional right of "private intimate sexual conduct" and, subsequently, whether regulations on the sale of "sex toys" constitute an impermissible burden on that right. According to the 5th Circuit, Lawrence describes the "contours of the substantial due process right to sexual intimacy," regulation of which must survive the standard of strict scrutiny:

The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding “the most private human contact, sexual behavior.” That Lawrence recognized this as a constitutional right is the only way to make sense of the fact that the Court explicitly chose to answer the following question in the affirmative: “We granted certiorari ... [to resolve whether] petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.”

However, according to the 11th Circuit opinion in Williams v. Attorney General of Alabama, 378 F.3d 1232 (2004) no such analysis was performed in Lawrence and, therefore, the fundamental question regarding the sale of "sex toys" is whether such a commercial enterprise (advertising for which could be viewed by children) violates a substantial state interest:

The operative legal conclusion that we come to as a basis for the decision in Lawrence is that Texas's sodomy prohibition did not further a legitimate state interest. . . .(fn. 8)

We decline to extrapolate from Lawrence and its dicta a right to sexual privacy triggering strict scrutiny. To do so would be to impose a fundamental-rights interpretation on a decision that rested on rational-basis grounds, that never engaged in Glucksberg analysis, and that never invoked strict scrutiny.

Further, the 11th Circuit pointed out that moral judgments can form valid legislation capable of surviving rational basis review via Supreme Court precedent established in Barnes v. Glen Theatre, Inc. (1991), Gregg v. Georgia (1976), Paris Adult Theatre I v. Slaton (1973), Roth v. United States (1957), United States v. Bass (1971), and the 11th Circuit's own opinion in Williams v. Pryor (2001). As Judge Birch notes:

One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence if now such a traditional and significant jurisprudential principal has been jettisoned wholesale (with all due respect to Justice Scalia's ominous dissent notwithstanding).

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LAW REVIEWS

(Abstracts excerpted from article introductions, citations omitted)

The Uncertain Fate of Virtual Child Pornography Legislation
Chelsea McLean, 17 Cornell J.L. & Pub. Pol’y 221 (2007)

Despite these legal battles, child pornography industry continues to develop and to create increasingly realistic images due to advancements in digital technology. In light of these developments, this note will address the increasing complexities facing those prosecuting and adjudging child pornography cases and will argue that computer savvy pornographers armed with budding technology may exploit the Court’s ban on prohibitions of virtual child pornography by arguing that the real children depicted are actually virtual. Specifically, this note will argue, in Part IV, that statutes regulating virtual child pornography as obscenity will and should be upheld by the Supreme Court, and further, that such laws are sufficiently broad to prevent the harmful effects of virtual child pornography. But before delving into that debate, this note provides some background on pornography litigation and legislation. Part I describes the history of obscenity and pornography regulation and jurisprudence. Part II examines the Supreme Court’s opinion in Ashcroft v. Free Speech Coalition. Part III analyzes subsequent Congressional efforts to regulate virtual child pornography, namely the PROTECT Act of 2003. Finally, in Part IV, this note will consider what forms of child pornography are obscene, and if all child pornography can or should be found obscene under the Miller v. California standard, which asks whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, politic or scientific value.

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