Surprisingly the shop, This, That and the Other Gift and Tobacco, won the case almost by accident due to a complicated loophole in state law.
On Feb. 15, the 11th U.S. Circuit Court of Appeals in Atlanta ruled that a Georgia law banning public advertising of sex toys was unconstitutional because it limited free speech.
In Georgia, it is considered a high misdemeanor to sell sex toys, which are considered obscene by state law. Consequently, it also is illegal to advertise the sale of such devices.
However, the law also stipulates that the sale of such items is legal for educational or medical purposes, such as for a sex-education class or to treat a sexual dysfunction under a doctor’s care.
The lawyer for This, That and the Other Gift and Tobacco, which carries a small selection of sex toys and novelties, argued that the advertising ban kept this small segment of legal consumers from knowing about the toys.
The appeals court agreed, which would effectively force the Georgia legislature to rewrite at least some of the state’s obscenity law to allow advertising of adult products.
Jonathan Bristol, an Atlanta attorney who frequently handles adult business cases, said the impact of the ruling may be short-lived, but also could reign in a number of appeals from businesses that have previously been penalized for advertising adult products.
“I have no doubt that the state government will rewrite the rules to comply with the ruling,” Bristol told XBiz. “But there are also going to be literally dozens of cases popping up on appeal since lawyers can now argue new free speech grounds.”
Bristol said the case would no doubt cause a stir in many state capitals.
“It could certainly give a lot of lawyers ideas for how to attack a case of this nature,” he said. “And politicians will no doubt take notice.”