From the Pleasure Chest to the Seattle-based Babeland (which celebrated its 20th anniversary this year) to the U.K.-based Ann Summers chain, sex toy sales continue to be a highly profitable part of the adult entertainment industry. Ann Summers, in fact, has credited the popularity of E.L. James’ softcore BDSM novel “Fifty Shades of Grey” with a 60 percent increase in blindfold sales and a 30 percent increase in handcuff sales (both leather and metal). But some parts of the U.S. are still problematic if one earns his/her living selling vibrators, dildos and nipple clamps. The good news for sex toy providers in the U.S. is that selling them is legal in the vast majority of states; the bad news is that in 2013, some parts of the Bible Belt still prohibit or greatly restrict their sale.
States that have had so-called “obscene device” laws have included Georgia, Texas, Louisiana, Kansas, Virginia and Mississippi, but prohibitions in most of those states have been struck down. Presently, the strictest prohibition is in Alabama, which in 1998, passed a statewide ban on the sale of sex toys — and violations can result in a year in jail and a $10,000 fine. That law has been challenged in the courts, but so far, the U.S. Supreme Court has declined to examine its constitutionality. And in 2009, the U.S. Court of Appeals for the 11th Circuit upheld the law as constitutional.
States that have had so-called “obscene device” laws have included Georgia, Texas, Louisiana, Kansas, Virginia and Mississippi, but prohibitions in most of those states have been struck down.
But in 2008, Texas’ obscene device law was rendered unenforceable by a 5th Circuit decision — which, according to First Amendment attorney Lawrence G. Walters, applies to Mississippi’s law as well because Mississippi is also in the 5th Circuit. The Texas law was passed in 1973 but was only enforced sporadically; in 2003, however, Texas-based Joanne Webb (a former schoolteacher) was arrested for selling vibrators to two undercover police officers posing as a married couple (the charges were later dropped).
2003 was also the year in which the U.S. Supreme Court handed down its landmark decision in Lawrence v. Texas, which struck down a Texas sodomy law and invalidated sodomy laws all over the U.S. — and opponents of obscene device laws contend that the Lawrence ruling makes all obscene device laws unconstitutional. But while the 5th Circuit agreed with that viewpoint, the 11th Circuit didn’t.
“The Lawrence v. Texas decision essentially recognized that you have a right to be free from governmental interference in your intimate sex life,” Walters explained. “The 5th Circuit relied on that language and on that concept when it invalidated the Texas law and said that Texas’ prohibition on the sale of obscene devices interferes with your ability to engage in intimate sexual activity either with yourself, your spouse or your partner. The Texas law didn’t prohibit possession of the devices, but you couldn’t buy them anywhere because the promotion and sale of the items was prohibited. So the 5th Circuit said that if you’re going to prohibit companies from selling them, you are essentially prohibiting people from obtaining them and using them and are banning them from the marketplace. But the 11th Circuit didn’t agree with that interpretation and did not recognize the fundamental right to privacy in your sex life, emanating from Lawrence v. Texas. The 11th Circuit found that states can use enforcement of public morals as a sufficient basis for legislation, and therefore, that the obscene device law in Alabama was constitutional.”
Walters said that Virginia’s obscene device law “could potentially be applied to sex toys given the language” but that the law has not been challenged in court. Virginia is not covered by the 11th or 5th Circuit rulings on obscene device laws because Virginia is in the 4th Circuit.
These days, sex toys are sold in a variety of environments, ranging from brick-and-mortar stores to sex toy parties (female-oriented gatherings similar to Tupperware parties) to adult industry conventions to cyberspace. And obscene device laws make life complicated for online sex toy merchants who have customers in different states and even different countries. Walters said that if a webmaster based outside of Alabama sells sex toys online to an Alabama resident, Alabama authorities have the right to confiscate the items when they enter that state.
“We don’t see a whole lot of active geo-blocking of jurisdictions,” Walters said of American websites that specialize in selling sex toys. “Alabama is probably the one clear exception because there’s a clear prohibition there. Certainly, I would recommend to any of my novelty clients that they geo-block Alabama.”
One online retailer/sexologist who has been a consistent and outspoken critic of obscene device laws is North Carolina-based Lisa S. Lawless, founder of Holistic Wisdom, Inc. and the National Association for the Advancement of Science & Art in Sexuality (NAASAS). Lawless said that at this point, sex toys are so ubiquitous — even in the Bible Belt — that obscene device laws are way out of the mainstream. “With the Fifty Shades phenomenon and more emphasis on sex toy parties,” Lawless asserted, “the general public is more comfortable with sex toys than at any other time in history. Anyone attempting a ban on the sale of such products is going to have a difficult time winning the consensus of the majority.”
Lawless and others who sell sex toys online are hoping that eventually, the U.S. Supreme Court will strike down obscene device laws all over the country. But with obscene device laws having been upheld in the 11th Circuit and invalidated in the 5th Circuit and the nation’s highest judicial body, the U.S. Supreme Court, declining to weigh in one way or another, the future of those laws is still up in the air.
“I’m not sure the Supreme Court wants to extend the Lawrence v. Texas decision to protect dildos,” Walters said. “They caught enough flack from the morality groups for invalidating sodomy laws. If the Supreme Court did look at the obscene device laws, they would be forced under Lawrence v. Texas to invalidate them — and I’m not sure they want to go there yet. They might at some point in the future.”