October 03, 2006

Law School Buzz

by PG

Some Columbia Law School organizations may hold an event at which sex toys will be sold, with the idea being to promote sexual choice and safety and further discussion about legislation and recent court decisions regarding obscene devices. It sounds like a better idea than the "Tent of Consent" popular among undergraduates, though I would have been amused if the law school had had such a tent, solely because it would upset alumni assumptions.

Yesterday the Supreme Court refused certiorari, without comment, on 05-1574, Acosta v. Texas. Ignacios Acosta is an employee in an El Paso adult bookstore who was arrested after he sold an "obscene device" to an undercover cop. The El Paso County Criminal Court dismissed the charge against him because it decided that the Texas statute prohibiting promotion of obscene devices[1] was
unconstitutional. The Court of Appeals, 8th District of TX, reversed the dismissal. The petition for writ of certiorari is at SCOTUSblog. I wouldn't have been wholly surprised if the Court had taken it, as there's a split among various courts as to whether such statutes are invalid under the federal Constitution post-Lawrence.

The inquiry begins with the question of whether laws that prohibit giving someone a sex toy are interfering with sexual privacy, as long as they do not prohibit possession[2] or use of sex toys. The courts seem to agree that, as the Eleventh Circuit said in upholding Alabama's ban, "For purposes of constitutional analysis, restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item." Yet despite the Acosta petition's attempt to make all the state statutes sound the same, the Alabama law is very different from Texas's. The former "proscribes a relatively narrow bandwidth of activity. It prohibits only the sale -- but not the use, possession, or gratuitous distribution -- of sexual devices." The Texas law, in contrast, prohibits a fairly broad spectrum of activity: "a person commits an offense if, knowing its content and character, he promotes or possesses with an intent to promote any obscene material or obscene device... 'promote' means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or offer or agree to do the same."

I disagree with the idea that "restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item." I am restricted from buying a kidney, but I am welcome to have one donated to me for my use should mine fail. I am restricted from paying for the sexual use of another person's body, but I am not restricted from making such use for free, even for homosexual sodomy, thanks to Lawrence. Since the end of Lochner, legislatures can restrict the number of hours a paid employee must work, but to my knowledge cannot restrict volunteer labor. The police power over economic matters is tremendous, as accords with the state's responsibility to enforce contracts and otherwise keep the gears of commercialism running smoothly. If prostitution became like any other service, a 'ho who took my money and failed to provide sex could be sued for breach, whereas my unpaid significant other cannot be civilly penalized for the same failure.

Even aside from my own idiosyncrasies about commercial activity, the Acosta petition is not wholly honest about the right of privacy precedents it cites. The restrictions struck down in Griswold, Baird, Roe, Carey and Casey were total prohibitions, not ones specific to commercial activity. Particularly in Baird, the vaginal foam in question was distributed for free to unmarried women who attended a discussion, not sold. If abortion protestors only harassed the clinics and threatened the doctors whom women paid for their abortions, I suspect that abortion would become a donation of medical services with charitable funding from feminist groups. Abortion also is intensely different from sex toys and contraceptives because it is a service rather than a good that could be sent by mail. All of these bans, like the Texas law against "promoting" dildos, are total rather than particular to commercial activity.

The Texas law, therefore, is defective not in its application to Acosta, but in being written so broadly, and that might provide the Court with reason to wait until someone gets arrested for loaning (!) a sex toy to a friend.

[1] The employee went astray by telling the cops that the toy would give a woman an orgasm. These toys are able to remain in shops because they normally are marketed as "novelty" items. Training for employees in these stores ought to include a rule against ever admitting that any of the devices might be used for sexual purposes.

[2] If I remember the Texas statute correctly, however, it employs the same logic as drug prohibition and declares that anyone in possession of an excessive number of sex toys is presumed to be intending to sell them.

October 3, 2006 11:45 PM | TrackBack

Ugh. I was really looking forward to saying "dildo" incessantly in class. As it is, it was quite a shock to hear the semi-retired professor say, "Did they agree to hear the dildo case?" But then it was probably inappropriate for me to mention the rabbit, which got one of the Justice Breyers in the class to laugh nervously.

Posted by: Armen at October 4, 2006 03:48 AM
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