In the Matter of the Penal Codes of THE STATE OF TEXAS, Appellant, v. RELIABLE CONSULTANTS, INC. and PHE, INC., Respondents.

SUPREME COURT OF THE UNITED STATES

March 29, 2008, Filed.

PRIOR HISTORY: Appealed from Fifth Circuit Court of Appeals

Decided February 12, 2008.

DISPOSITION: Affirmed

COUNSEL: For Appellant: Ashma Basnyat

For Respondent(s): Gabriela Salvidea

JUSTICE Katie Combs delivered the opinion of the Court, with whom CHIEF JUSTICE HANSON joins.

FACTS OF THE CASE

Texas Penal Code Ann. §43.21 and §43.23 prohibit the “promot[ion] or possess[ion] with intent to promote any obscene material or obscene device,” defining such devices to include “a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” The respondents, purveyors of such devices, claimed that such prohibition was an infringement of their Fourteenth Amendment right to due process, a claim that was upheld by the Fifth Circuit Court of Appeals. The State of Texas has appealed this decision. This Court affirms the decision.

ARGUMENT

I. RIGHT TO PRIVACY

The Court sees no merit to the appellant’s assertion that “in this case, the state’s concern is not the private but the public” (8). In completely prohibiting the sale of sexual devices – to the point where testimony indicated that mail personnel would be legally liable for out-of-state shipments of devices, or for owning more than six devices – Tex. Penal Code Ann. §43.21 clearly reaches far beyond the public realm and infringes on private action. Even in the State’s brief to the Fifth Circuit Court, it stated that its motivations included “discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation.” The State does not have a role in regulating “autonomous sex” in the interest of morality nor in dictating the manner of intimate relations that consenting adults wish to engage with each other, based on what it considers the “correct” kinds of relations. As such, the Penal Code is overbroad and infringes on individual rights rather than merely furthering State interests through narrowly tailored restrictions towards public morality. Take, for example, the case of Joanne Webb, a Texan woman who was arrested for selling devices from her home in what was described as a “Tupperware style” party by undercover officers. The charges were later dropped after media coverage, but the situation illustrates the way in which the law clearly affects the private realm and enables excessive government interference, since it goes so far as to not allow a person to “issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit [etc.]” devices. Giving and lending, in particular, clearly have implications for private realms and individual action. The Lawrence decision acknowledged

an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex…The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

In all of these restrictions, especially giving and lending, the state is interfering with the private realm of individual action that this court’s Lawrence decision has made imminently clear is a critical component of our constitutional freedoms.

The appellants point to the lower court decision, citing Texas v. Acosta’s conclusion that “there is no fundamental right to stimulate human genital organs with an obscene device; therefore, restricting the promotion of such devices does not infringe on any recognized fundamental right” (08-04-00313-CR). This characterization of the issue at hand is fundamentally flawed in its misleading specificity; this Court deems the fundamental right not to be stimulation with specific devices, but in the general right to private sexual behavior. It is in this context that Lawrence can be examined properly as relevant precedent, for as its opinion stated, “the intimate, adult consensual conduct at issue here was part of the liberty protected by the substantive component of the Fourteenth Amendment's due process protections.” This conception of sexual privacy and “intimate conduct” extends to the case at hand. Willing adults should be able to use sexual devices in the privacy of their home if they so wish. This ban’s purpose clearly extends far beyond the public sphere and is aimed at private behavior, which is unconstitutional as we noted in Lawrence.

Moreover, the appellant’s use of the decision of the 11^th Circuit Court of Appeals in Williams v. Alabama – which upheld a law similar to Penal Code Ann. §43.21 – is misguided. The decision in Williams said that the Constitution “does not include a right to sexual privacy,” which clearly is at odds with our decision in Lawrence. The Lawrence decision reflects the Supreme Court’s acknowledgment of widespread and common-sense expectations for personal privacy in the bedroom; Alabama is currently one of only three states in the nation to ban the use of sex toys, along with Texas and Mississippi, and even the penal code in question in Texas is said to be “rarely enforced” according to law enforcement. Moreover, the Williams decision stated that “the statute exercises a time-honored use of state police power – restricting the sale of sex,” making an unfounded claim that the sale of sexually-related products is equivalent to selling and purchasing sex. Sale and promotion does not seem “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, 447 1969). As in the case of Carey, the promotions in Williams “merely state the availability of products and services that are not only entirely legal…but constitutionally protected” (see Carey v. Population Services International 431 U.S. 678).

The appellant additionally suggests that the equation of banning the sale and banning the use is unfounded because “such devices may be obtained from other sources outside of the State of Texas.” However, given that the penal code prohibits the mailing or transfer of sex toys, and would thus prohibit even such a discreet and private action as to order a device from an out-of-state online source (decidedly not a threat to public morality), banning the sale is clearly akin to banning the use. It would place an undue burden on the consumer to drive out of state and thus makes purchase nearly impossible. Further, the use of sex toys is a part of sexual privacy akin to the way that the use of condoms is a part of sexual reproductive privacy. The respondent’s citation of Carey v. Population Services International (1977) is apt: “Restrictions on the distribution of contraceptives clearly burden the freedom to make such decisions. A total prohibition against sale of contraceptives, for example, would intrude upon individual decisions in matters of procreation and contraception as harshly as a direct ban on their use.” Completely banning the sale of sexual devices in Texas stores would thus infringe on an individual’s right to privacy, since Tex. Penal Code Ann. §43.21 similarly intrudes on individual decisions of a sexual nature as severely as a ban on use would by preventing sale.

II. FIRST AMENDMENT CONSIDERATIONS AND REGULATION OF PUBLIC MORALITY

While the argument until this point has centered on the way in which Tex. Penal Code Ann. §43.21 infringes on the constitutional rights of customers under the Fourteenth Amendment, we also find it necessary to emphasize that Tex. Penal Code Ann. §43.21 is a violation of the respondents’ first amendment rights. In matters of commercial speech in relation to the First Amendment, this Court has previously relied on the test established in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (447 U.S. 557, 1980) – a case concerning a complete ban of promotional advertising by electric utilities – which provided the following guidelines:

Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment, it at least must concern lawful activity and not be misleading. Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, it must then be decided whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

The speech in question does indeed regard lawful activity, as the appellants have maintained that the penal code does not explicitly ban usage of sex toys. In regards to the second stipulation, however, the Texas penal code is more extensive than necessary to further the State's interest in public morality.

Completely banning the promotion of such devices outright clearly limits speech to an extent that violates the Constitution. This Court has stated that in a general sense, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (Police Department of Chicago v. Mosley, 408 U.S. 92, 95 1972) and has recognized commercial speech to fall under this category of expression since Bigelow v. Virginia, 421 U.S. 809 (1975). The case of Bolger v. Youngs Drug Products Corp. (1983) saw this Court decry postal regulations that outlawed mailed condom advertisements. In this case, the Supreme Court struck down a Postal Service statute, 39 U.S.C. § 3001, which had provided “for the suppression of Trade in and Circulation of obscene literature and articles of immoral use.” This case exemplifies the way the Court has extended free speech rights to advertisers of sexually-related products. As the respondent has argued, both condoms and sex toys can be considered similar in that both are products used by choice in private sexual acts. Thus, entirely banning the promotion and sale of sexual devices violates the principles of the First Amendment.

The appellant has expressed a well-intentioned concern for the wellbeing of children in an effort to display overriding State interest, a concern that the Supreme Court has previously recognized (New York v. Ferber, 458 U. S. 747, 775-777 1982, Ginsberg v. New York, 390 U. S. 629 1968). However, the First Amendment “does not permit the government to prohibit speech as intrusive unless the ‘captive' audience cannot avoid objectionable speech” (Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S. at 542). Narrowly tailored restrictions would adequately serve to further the State’s interest in protecting children from inadvertent but unavoidable exposure in public areas. This Court does not object to laws enacting age restrictions for “adult areas” and would not object to a more narrow law qualifying specifically the manner of promotion; for example, visibility standards in public settings with children present would be considered valid actions of the State. However, to ban all promotion preemptively is a violation of the First Amendment similar to that apparent in Sable Communications v. FCC, 492 U.S. 115 (1989), where the court ruled that “While the government unquestionably has a legitimate interest in, e.g., protecting children from exposure…§ 223(b) is not narrowly drawn to achieve any such purpose. Its flat-out ban of indecent speech is contrary to the First Amendment.” Like the statute in question in that case, the Tex. Penal Code currently in question “curtails freedom of speech far more radically than the Government's interest in preventing harm to minors could possibly license on the record before us” (see Justice Brennan; concurring in part and dissenting in part).

III. FUTURE CASES

This Court believes that to uphold Texas Penal Code Ann. §43.21 and §43.23 would allow for excessive government interference with individual acts – acts that, since conducted within the home, pose no threat to public morality. While the Court refrains from agreeing with the respondents that all sexual devices reflect “healthy behavior” and could “enhance morality” (due to the sheer breadth and variation of devices and use), this law’s complete ban on their promotion curtails the purveyors’ First Amendment rights and the liberty rights of all citizens to choose their intimate relations.

The appellant suggests that a ruling favoring the respondent would set a precedent limiting the State’s ability to regulate public morality and implies a consequential societal decline. The appellant’s brief, for example, poses the following scenario in its argument that a parallel to Lawrence is untenable:

If the court chooses to take Lawrence as a precedent, then it is arguing that the state cannot intrude on private, consensual relations and so the state cannot use morality as a basis to ban the sale of sex toys because it becomes an intrusion in the private sphere. So then the same logic would then have to apply to prostitution- states would not be able to use morality as a basis to ban prostitution because in doing so, it also intrudes in the private sphere- private consensual sexual relations. However prostitution still remains illegal up till this date. Since Lawrence [is] regarded as the precedent, should prostitution be legalized too?

Legalization of prostitution is not so clear-cut a consequence as this appellant would seem to suggest, and affirming the lower court decision in this case would not necessarily have the direct result of legalizing prostitution. Lawrence itself differentiated private acts of sodomy from prostitution, invalidating the comparison: “It does not involve public conduct or prostitution.” Courts have differentiated between the sale of products and the sale of body, even employing metaphors of slavery (and relying on statistics regarding the young age of many prostitutes) to suggest that such actions cannot be considered consensual, unlike both the sodomy acts considered in Lawrence and the sale of sex toys in the present case. Thus, declaring Texas Penal Code Ann. §43.21 unconstitutional does not establish prostitution as a private right.

IV. CONCLUSION

The State of Texas clearly has tried to establish a moral standard with the passage and implementation of Texas Penal Code Ann. §43.21, but as was stated in Lawrence, “The fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This remains true, particularly when the law in question is clearly overbroad and infringes on individual privacy. This Court believes that the sale of sex toys is an exercise of the right to privacy and expression; to completely ban their sale and purchase would violate the First and Fourteenth Amendments. The judgment of the Court of Appeals is therefore affirmed.