U.S. Justices May Hear Alabama Sex Toy Ban Case

Q Boyer
WASHINGTON — A rare move made last week by the U.S. Supreme Court may indicate that the nation’s highest court is giving real consideration to hearing a case challenging Alabama’s ban on the sale of sex toys, according to legal experts familiar with the case.

In the case Williams vs. Alabama, adult novelty shop owner Sherri Williams is challenging the Alabama state law that prohibits the commercial distribution of devices “primarily for the stimulation of human genital organs.”

The most recent decision in the case came from a panel of judges from the U.S. 11th Circuit Court of Appeals, in which the court held that “public morality remains a legitimate rational basis for the challenged legislation,” and deemed the Alabama ban constitutional.

Following the decision from the 11th Circuit, Williams petitioned the Supreme Court to hear the case, filing a writ of certiorari in May of this year. At the time, the state of Alabama declined to file an opposition to Williams’ writ, a move that is not uncommon when an opposing party believes the Supreme Court is unlikely to take the case.

Last week, the Supreme Court directed the state to respond to Williams’ writ of certiorari — something that experts said the court is unlikely to do if they are not at least considering hearing the case.

“This does not happen often,” Reed Lee, president of the 1st Amendment Lawyers Association, told XBIZ. “The court has requested a response, which it seems to me they would not do if there were no interest in taking the case; by and large, the court does not assign meaningless paperwork.”

According to Lee, because the Supreme Court receives thousands of requests to hear cases every year but only grants certiorari in several dozen of those cases, it is highly unlikely they would request more information on a case that they had no intention of hearing.

The Williams case has taken a long and winding path to the doorstep of the Supreme Court. Most recently, a panel from the 11th Circuit affirmed in part and reversed in part a decision by an Alabama district court. It concurred with the lower court that there was “no currently recognized fundamental right to use sexual devices,” while reversing the district court’s decision that the statute lacked a “rational basis,” holding that the “promotion and preservation of public morality” provided that rational basis.

Asked in what sense the sale of sex toys might impact “public morality,” Lee said that in the mind of many judges hearing such cases, “because it involves commerce, this makes it ‘public.’” Further, Lee said that for some jurists there is a notion that “commerce is almost sanctified,” and that anything related to adult entertainment or sexual materials has a negative impact on commerce, in general.

“Some judges think that [in free speech cases], public morality and notions of propriety should be given more weight when there is commerce involved,” Lee said. “They think that adult materials somehow degrade commerce.”

Despite the unusual move on the part of the Supreme Court to direct the government to respond to Williams’ writ, Lee said it will be “at least the first week of October” before the court announces its decision on whether it will hear the case.