Federal Court Strikes Down Georgia Obscenity Law

Matt O'Conner
ATLANTA — What started as a case questioning a ban on advertising of sex toys in Georgia has led to the 11th U.S. Circuit Court of Appeals upholding its earlier ruling that the state’s entire obscenity statute is unconstitutional.

The ruling stems from a 2000 case in which This, That & The Other, a Smyrna, Ga.-based tobacco accessory shop that offers a small selection of adult novelties, filed suit against Cobb County after county officials attempted to shut down the store for violations of Georgia’s obscenity statute.

County officials targeted the store because it was advertising sex toys. Lawyers for This, That & The Other argued that the statute’s ban on advertising was a violation of the store’s constitutional right to free speech.

While Georgia law considered the sale of sex toys a high misdemeanor, the law also stipulated that the sale of such items was legal for educational or medical purposes, such as for a sex-education class or to treat a sexual dysfunction under a doctor’s care. Lawyers for This, That & The Other said that the advertising ban kept this small segment of legal consumers from knowing about the toys.

In a February decision, the federal appeals court not only agreed that the advertising ban should be lifted, but added that the state’s entire obscenity statute needs to be overhauled. Cob County petitioned the court to hear the case “en banc,” meaning they wanted all judges on the appeals court to reconsider the case.

But a three-judge panel refused to rehear the case, stating, “Our panel opinion clearly holds that, based on the law of the of the case, the entire [statute] is unconstitutional.”

Anticipating such an outcome, the state’s Attorney General had pleaded to legislators to quickly draft a new obscenity statute before the close of the 2006 session, but they did not, meaning that as of now, Georgia is without an obscenity law.

Cobb County does have the option of appealing the decision to the U.S. Supreme Court.