Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

April 14, 2008

KEEP THE GOVERNMENT OUT OF OUR BEDROOMS

Houston Criminal Attorney John T. Floyd Discusses Fifth Circuit Decision Striking Down Obscenity Statute Prohibiting Promotion or Sale of Sex Toys, the Right to Private Sexual Privacy

Do you believe that every American citizen has a constitutionally protected right to sexual privacy in his/her home?

The Texas Legislature and the Texas Court of Criminal Appeals did not think you did until the United States Court of Appeals for the Fifth Circuit recently informed them that every citizen does have an indisputable right to sexual privacy in the home. See: Reliable Consultants, Inc., et al. v. Earle, et al., 2008 U.S. App. LEXIS 3102 (5th Cir. Feb. 12, 2008). The appeals court struck down those portions of the Texas obscenity statute that made it a crime to promote or sell sexual devices [commonly referred to a “sex toys”]. See: Tex. Penal Code § 43.21(a)(5),(6).

The Legislature in 1973 enacted Texas’s obscenity statute with what the Fifth Circuit called a “modest goal” of prohibiting “obscene material.” Id., at LEXIS 2.

In 1973 the United States Supreme Court made an affirmative attempt to define “obscenity” for the states. See: Miller v. California, 413 U.S. 15 (1973). The high court held:

“This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. ‘The First and Fourteenth Amendments have never been treated as absolutes.’ We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

”The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of; that concept has never commanded the adherence of more than three Justices at one time. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” Id., 413 U.S. at 23-25.

In the wake of Miller, the Texas Legislature redefined “obscene material” but elected not to follow the constitutional guidance of the Supreme Court. Instead state lawmakers decided to expand the state’s obscenity statute to include prohibitions on the “promotion” and “wholesale promotion” of “obscene devices,” including the selling, giving, lending, distributing, or advertising for them. See: Reliable Consultants, supra, at LEXIS 2.

The law was so restrictive that it criminalized the act of a husband buying and giving his wife a vibrator. The legislature broadly defined an “obscene device” as any device “designed or marketed as useful primarily for the stimulation of human genital organs.” See: § 43.21(a)(7). The Texas Court of Criminal Appeals upheld this law, ruling that there was no constitutional right to “stimulate … another’s genitals with an object designed or marketed as useful primarily for that purpose.” See: Yorko v. State, 690 S.W.2d 260, 263 (Tex.Crim.App. 1985).

In 1995 and 1996 researchers at the University of California, San Francisco, conducted the National Sexual Health Survey (“NSHS”) which involved a telephone poll of 7,700 adults ages 18 to 90. Seventy-seven percent of those surveyed said they were sexually active by having sex within a 12-month period prior to the survey. The survey’s findings revealed:

• 10% of the sexually active adults used a vibrator or other sex toys in partner sex.
• Sex toys are most often used in partner sex by sexually active adults between ages of 30 thru 49.
• 13% of the sexually active adults between 30 and 49 years of age admitted to the use of sex toys in partner sex.
• 9% of the sexually active adults between 18 and 29 years of age admitted to the use of sex toys in partner sex.
• 8% of the sexually active adults between 50 and 59 years of age admitted to the use of sex toys in partner sex.
• 4% of the sexually active adults over age 60 admitted to the use of sex toys in partner sex.
• High income sexually active adults in partner sex are more likely to use sex toys than lower income sexually active adults.
• 9% of the married sexually active adults admitted to the use of sex toys in partner sex.
• 10% of the non-married sexually active adults admitted to the use of sex toys in partner sex.
• 15% of the separated, divorced or widowed sexually active adults admitted to the use of sex toys in partner sex.

When projected on the national population, these percentages reflect that as many of 10 to 20 million Americans, in one form or another, use sex toys in partner sex. In effect, thousands of Texans had been criminalized by the very lawmakers they had sent to Austin to represent their social, political, and constitutional interests with the obscenity statute. Only three other States – Mississippi, Alabama and Virginia – have laws similar to the Texas obscenity statute. The Eleventh Circuit Court of Appeals recently upheld the Alabama statute, finding that it did not violate the substantive due process provisions of the Fourteenth Amendment. See: Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007), cert. denied, Williams v. King, 128 S.Ct. 77 (2007).

Relying upon the U.S. Supreme Court decision in Lawrence v. Texas, 539 U.S. 558 (2003) which struck down Texas’ sodomy law, the Fifth Circuit in Reliable Consultants chose not to follow the lead of the 11th Circuit. Id., at LEXIS 8. The Fifth Circuit examined and rejected the following arguments put forth by the Texas Attorney General in defense of § 43.21:

• The companies who distribute the sexual devices for profit did not have standing to challenge the law based on rights of their customers. Id., at LEXIS 8.
• The Lawrence decision did not apply because the statute involved in that case targeted a “specific class of people.” Id., at LEXIS 12.
• The legislative justification for the statute was “morality based” with a state interest of “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation and prohibiting the commercial sale of sex.” Id., at LEXIS 15.
• The state has a “public morality” interest in the statute because it serves as the “protection of minors and unwilling adults from exposure to sexual devices and their advertisement.” Id., at LEXIS 18.
• Ruling the statute unconstitutional would effectively bestow due process protection on the “commercial sale of sex.” Id., at LEXIS 19.

With respect to the State’s “lack of standing” argument, the Fifth Circuit said “this argument fails under the Supreme Court precedent holding that (1) bans on commercial transactions involving a product can unconstitutionally burden individual substantive due process rights and (2) lawsuits making this claim may be brought by providers of the product.” Id., at LEXIS 8-9. See also: Griswold v. Connecticut, 381 U.S. 479, 481 (1965)[pharmacists had standing to challenge state ban on the use of contraceptives based on rights of married couples]. The Fifth Circuit added:

”To determine the constitutional standard applicable to this claim, we must address what right is at stake. Plaintiffs claim that the right at stake is the individual's substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: ‘the right to stimulate one's genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.’ The Court in Lawrence--where it overruled its decision in Bowers v. Hardwick and struck down Texas's sodomy ban--guides our decision:

“’To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home.

”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’." Id., at LEXIS 10-12. [internal citations omitted)

In rejecting the State’s argument that Lawrence was not applicable because it concerned a state statute that targeted a specific class of people, the Fifth Circuit said:

”Justice O'Connor concurred in the majority's decision in Lawrence because she would have struck down the law on equal protection, not substantive due process, grounds. But the Court explicitly rested its holding on substantive due process, not equal protection. As discussed, the Court concluded that the sodomy law violated the substantive due process right to engage in consensual intimate conduct in the home free from government intrusion. Once Lawrence is properly understood to explain the contours of the substantive due process right to sexual intimacy, the case plainly applies.” Id., LEXIS at 12.

The Fifth Circuit added that it was precisely because of Lawrence that the issue of whether the Texas obscenity statute imposed impermissible burdens on the individual’s right to substantive due process right to sexual privacy was before the court. The court addressed the issue as follows:

” … 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.” Id., at LEXIS 13.

The Fifth Circuit then explained why it chose not to follow the Eleventh Circuit’s conclusion that Lawrence did not establish a “fundamental right”:

”The Supreme Court did not address the classification, nor do we need to do so, because the Court expressly held that ‘individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of 'liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.’ The Court also carefully delineated the types of governmental interests that are constitutionally insufficient to sustain a law that infringes on this substantive due process right. Therefore, our responsibility as an inferior federal court is mandatory and straightforward. We must apply Lawrence to the Texas statute.” Id., at LEXIS 14.

The Fifth Circuit called the State’s “morality based” argument its primary justification for defending the obscenity statute. The appeals court went directly to the heart of that issue:

”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. In Lawrence, Texas's only argument was that the anti-sodomy law reflected the moral judgment of the legislature. The Court expressly rejected the State's rationale by adopting Justice Stevens' view in Bowers as ‘controlling’ and quoting Justice Stevens' statement that ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’ Thus, if in Lawrence public morality was an insufficient justification for a law that restricted ‘adult consensual intimacy in the home,’ then public morality also cannot serve as a rational basis for Texas's statute, which also regulates private sexual intimacy.” Id., at LEXIS 15-16.

The Fifth Circuit was also not impressed by the State’s attempt to cast the “public morality” issue around the “protection of minors and unwilling adults from exposure to sexual devices and their advertisement.” The appeals court addressed the “protection of minors” issue first:

” ,,, It is undeniable that the government has a compelling interest in protecting children from improper sexual expression. However, the State's generalized concern for children does not justify such a heavy-handed restriction on the exercise of a constitutionally protected individual right. Ultimately, because we can divine no rational connection between the statute and the protection of children, and because the State offers none, we cannot sustain the law under this justification.” Id., at LEXIS 18

The Fifth Circuit had even less patience with the protection of “unwilling adults” issue:

”The alleged governmental interest in protecting ‘unwilling adults’ from exposure to sexual devices is even less convincing. The Court has consistently refused to burden individual rights out of concern for the protection of ‘unwilling recipients.’ Furthermore, this asserted interest bears no rational relation to the restriction on sales of sexual devices because an adult cannot buy a sexual device without making the affirmative decision to visit a store and make the purchase.” Id., at LEXIS 18-19.

Finally, the appeals court dispensed with the State’s irrational argument that by declaring the obscenity statute unconstitutional it would be the equivalent of attaching substantive due process protection to the “commercial sale of sex”:

“Not so. The sale of a device that an individual may choose to use during intimate conduct with a partner in the home is not the ‘sale of sex’ (prostitution). Following the State's logic, the sale of contraceptives would be equivalent to the sale of sex because contraceptives are intended to be used for the pursuit of sexual gratification unrelated to procreation. This argument cannot be accepted as a justification to limit the sale of contraceptives. The comparison highlights why the focus of our analysis is on the burden the statute puts on the individual's right to make private decisions about consensual intimate conduct. Furthermore, there are justifications for criminalizing prostitution other than public morality, including promoting public safety and preventing injury and coercion.

”Just as in Lawrence, the State here wants to use its laws to enforce a public moral code by restricting private intimate conduct. The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

”It follows that the Texas statute cannot define sexual devices themselves as obscene and prohibit their sale. Nothing here said or held protects the public display of material that is obscene as defined by the Supreme Court--i.e., the language in Section 43.21(a)(1) of this statute, excluding the words in the provision defining as obscene any device designed or marketed for sexual stimulation. Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution.” Id., at LEXIS 19-21.

The Texas Legislature does not have any legitimate constitutional interests in patrolling the bedrooms of Texas citizens to police their intimate sexual conduct either with themselves or a partner. The Fifth Circuit made it unmistakably clear that it’s none of the Legislature’s business what goes on in the privacy of one’s home so long as no other person is being physically or sexually abused. The Reliable Consultants decision should instruct Texas lawmakers that, while in Austin, they would better serve the interests of the state’s citizenry by eliminating government waste, mismanagement, and corrupt rather than being concerned about who, when, or why someone is using a vibrator or a dildo.

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