First passed in 1998, the statute makes it illegal to sell “any device designed or marketed as useful primarily for the stimulation of human genital organs.” Violations are punishable with fines of up to $10,000 and as much as a year in prison.
The law has a complicated history. It has twice been overturned in federal court, then subsequently upheld on appeal in both cases.
Michael Fees, an attorney for the plaintiffs —adult novelty retailers, free speech advocates and a number of women who say they need the devices for therapeutic purposes — said he hopes to once again push the issue to the Supreme Court’s doorstep.
He filed a motion this week with U.S. District Judge Lynwood Smith, the same judge who has twice overturned the law before being overruled by the 11th Circuit Court of Appeals.
Fees is arguing that the law is an unconstitutional intrusion on sexual privacy. He cited the Supreme Court’s decision in Lawrence vs. Texas, which struck down a Texas sodomy law and created a fundamental due process right to sexual privacy.
What’s more, Fees contended that, because masturbation and genital stimulation are not illegal in Alabama, the sale of devices used for those purposes should not be, either.
While Judge Smith has shown himself to be sympathetic to the plaintiffs’ case, the high court earlier this year rejected, without comment, an appeal based on the same argument.
