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Ruling on Texas Sex Toy Ban Could Affect Other States

Miss. official says 5th Circuit’s ruling renders defense of his state’s ban ‘problematic’; FSC’s Reed Lee expects panel’s ruling to withstand review
Ruling on Texas Sex Toy Ban Could Affect Other States
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Feb 21, 2008 4:00 PM PST    Text size: 
JACKSON, Miss. — State government officials this week said that a recent decision by the 5th U.S. Circuit Court Appeals overturning a Texas sex toy law could render Mississippi’s own ban on “obscene devices” unenforceable.

According to the Huntsville Times, Miss. Assistant Attorney General Harold Pizzetta said Tuesday that while the state’s law is “still on the books,” the court’s ruling “will make any defense of the law problematic.”

“It will put our statute in jeopardy,” Pizzetta added.

Mississippi isn’t the only state that could see its sex toy ban fall by the wayside — the 5th Circuit’s ruling this month has created what is commonly referred to as a “square split” between judicial circuits. Last year, the 11th Circuit upheld Alabama’s ban on obscene devices as constitutional, reasoning in its decision that the state’s “interest in preserving and promoting public morality provides a rational basis for the challenged statute.”

In an analysis prepared for the Free Speech Coalition (FSC), attorney Reed Lee, who represents store owner Sherri Williams in her ongoing challenge to Alabama’s ban on sex toys, expressed cautious optimism that the 5th Circuit panel’s decision will be upheld.

“The panel majority’s decision and reasoning are sound, and they deserve to prevail both in the 5th Circuit and elsewhere,” Lee wrote. “But conservative judges will likely be upset about the ruling, as they were about the Supreme Court’s sodomy decision and about so many other decisions of importance to us.”

Lee added that, just as the 6th Circuit’s recent 2257-related ruling in the Connection Distributing case “is not likely to be the last word on the subject,” it should be expected that there will be further litigation pertaining to sex toys, as well.

“In the end, I think both panel’s decisions will be vindicated,” Lee wrote.

Williams, who has spent over nine years fighting the ban on sex toys in Alabama, said this week that she has printed 5,000 postcards for her customers to send to state legislators as part of her ongoing lobbying effort.

“Maybe now that they’re the only one standing, they’ll listen,” Williams said.

In his analysis prepared for the FSC, Lee compared Williams’ situation with that faced by Michael Hardwick two decades ago: Hardwick unsuccessfully challenged Georgia’s antisodomy laws in the 1980s.

“They both bravely fought unconstitutional laws on constitutional privacy grounds,” Lee wrote. “Unlike Mr. Hardwick, it looks like Sherri Williams will live to see her constitutional challenge fully vindicated. No one has struggled more assiduously than she has, and no one deserves vindication more.”

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