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Banning Sales of Sex Toys Upheld and could spread to other states and cities

June 13, 2005

In February, Alabama's controversial ban on sex toy sales went all the way to the U.S. Supreme Court, which much to the disappointment of sex toy providers refused to examine the constitutionality of the ban. Under an Alabama law passed in 1998, selling a dildo or vibrator in that state can result in a year of incarceration and a $10,000 fine and there are six other states where selling sex toys is illegal or greatly restricted, including Georgia and Texas (where schoolteacher Joanne Webb was arrested in 2003 for selling vibrators).

Because of the Christian Right-inspired war on sex toys that is taking place in the American Bible Belt, webmasters who sell those items online are asking jurisdictional questions: Could a webmaster who is based in Washington or Massachusetts (states that don't have sex toy bans) face prosecution for mailing a dildo to a customer in Alabama?

Lawrence Walters, a high-profile First Amendment lawyer with a long history of representing adult-oriented businesses, stressed that the main issue online sex toy merchants need to be concerned about is laws in their state, county or city. Walters said that if a webmaster who lives in a place where sex toys are legal mails them to a place where they are illegal, the items could be "seized or intercepted" by authorities. But, he added, "As far as a prosecution and a webmaster being extradited to Alabama or Georgia from Boston or Seattle to face charges of distributing sex toys, it's not realistic."

However, Walters emphasized that if a webmaster is physically based in Alabama or any other state with a sex toy prohibition, he/she could, in fact, be prosecuted for selling dildos or vibrators online.

"We're not going to see rampant obscenity prosecutions against devices using federal law; it simply doesn't apply based on case law," Walters said. "But we may see more of the states and even some local governments some counties passing new obscene-device laws and obscene-novelty laws. And if you happen to be a webmaster who lives in a state or a county where those devices are illegal, it doesn't matter where you're sending the devices to. The fact that you're selling these items and putting them in packages is enough for local prosecutors to come after you."

Lawrence vs. Texas
Jeffrey J. Douglas, a First Amendment attorney who heads the Free Speech Coalition's board of directors, believes that because of the Supreme Court's ruling in the Lawrence vs. Texas case, sex toy bans will eventually be declared unconstitutional. In 2003, that ruling struck down Texas' sodomy law and supported the right to sexual privacy; Douglas insists that sex toy bans are a violation of Lawrence vs. Texas. "Lawrence vs. Texas, in essence, says that states do not have the power to create criminal liability on purely moral grounds," Douglas said. "Post-Lawrence vs. Texas, there is not a single rational justification for the existence of anti-sex toy laws and the fact that the Supreme Court chose not to enforce its own ruling doesn't persuade me that there is any legal justification." But Douglas asserted that until the Lawrence vs. Texas ruling is truly enforced and all sex toy bans are abolished on constitutional grounds, webmasters need to obey those laws and that means that if one wants to sell dildos and vibrators online, Alabama isn't the place to do it.

Alabama's sex toy ban is something that novelty-store owner Sherri Williams has been fighting with the help of the ACLU and others for seven years. Although quite disappointed by the Supreme Court's refusal to examine Alabama's ban, Williams, who lives in Florida and owns two erotic boutiques in Alabama, hasn't given up. She is in the process of assembling an organization called the National Alliance of Adult Trade Organizations (NAATO), which she describes as "an umbrella group that will fight these bans on adult toys."

Williams said that her decision to form NAATO has received enthusiastic support from pro-sex toys activist Lisa S. Lawless who heads an organization called the National Association for Sexual Awareness and Empowerment (NASAE) and Michelle L. Freridge, executive director of the Free Speech Coalition. "To me," Lawless said, "it's absolutely disgusting what is going on in Alabama and Texas. It's an injustice. Sexuality is a beautiful part of who we are there's nothing inherently dirty about it and sex toys don't cause harm to anyone. The appalling thing is that these barbaric laws weren't passed in the 19th century; they were passed in the 1990s."

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