Citing the constitutional protection of free speech, U.S. District Judge Gray Miller granted Houston-based Carico Distributing Co. a permanent injunction, barring the TABC from seizing materials its agents consider obscene.
Carico, which distributes adult materials to liquor and convenience stores throughout the state, filed suit seeking a temporary injunction in 2003 to stop the TABC from raiding stores that it sells to.
U.S. District Judge Vanessa Gilmore granted the temporary injunction at the time, halting the agency’s efforts to remove adult materials from the shelves.
At the time, Carico attorney Michael Lamson said that the TABC agents did not exercise discretion when it came to declaring material obscene.
“Hey, they were taking everything on the rack — Penthouse, whatever was there,” Lamson said.
Miller granted the permanent injunction, saying that the TABC’s policy of seizing materials it deems obscene without judicial guidance is unconstitutional.
"The TABC may not simply designate materials obscene, and then proceed from that untested premise," Miller said. "The law demands a judicial determination that this designation is accurate."
Miller also ruled that the state law banning the possession or display of “immoral, indecent, lewd or profane” materials by merchants licensed by the TABC is unconstitutionally vague, saying that non-obscene erotic materials are protected by the 1st Amendment.
"It [the law] cuts a wide and broad swath across territory covered by the 1st Amendment," Miller wrote.
After the ruling, Lamson characterized the policy of the TABC as a “cowboy mentality.”
According to Lamson, the TABC has the right to appeal Miller’s ruling or wait for the state legislature to change the law.
