State sex toy ban may fall under federal court decision

JACKSON – Mississippi’s 25-year-old law barring the sale of certain devices designed for sexual stimulation could be unenforceable under a new ruling in a Texas case, according to the attorney general’s office.

The 5th U.S. Circuit Court of Appeals ruled that the Texas law making it illegal to sell or promote obscene devices, punishable by up to two years in jail, violated the Constitution’s 14th Amendment on the right to privacy.

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The Mississippi law is similar.

“It’s still on the books, but the 5th Circuit ruling will make any defense of the law problematic,” said Assistant Attorney General Harold Pizzetta said Tuesday. “It will put our statute in jeopardy.”

Pizzetta said anyone cited under the state law will point to the court decision.
Harry V. Rosenthal of Pearl, the license holder for Secrets adult bookstore in south Jackson, said he considers the Mississippi law negated after the ruling in the Texas case.

Rosenthal was charged last year by Jackson police with possessing sex toys for purchase or resale at the store. The charge was remanded to file, meaning officials are not pursuing prosecution of the case, which has not been dismissed.

“If they charge us now, they can’t take us to court,” Rosenthal said.

Texas, Mississippi, Alabama and Virginia are the only states with obscene-devices statutes.

In 2004, the Mississippi Supreme Court upheld the constitutionality of the law and ruled the advertising of the sexual devices is not protected by the right to free speech. Such advertisements, the court said, promote an illegal transaction.

Adam and Eve and ZJ Gifts LLC, the Memphis-based owner of the Christal’s chain of adult stores, sued the state of Mississippi in 2000. The company, which closed an adult store in Southaven in 2001, claimed the law barring the sale of certain adult devices was unconstitutional.

A Hinds County judge ruled in 2003 that state law does not extend the right to privacy to the commercial sale of sexual devices.

The Mississippi high court said there is no fundamental right of access to buy sexual devices.

In the Texas case, Dreamers and Le Rouge Boutique operates four retail stores that carry a stock of sexual devices for off-premises, private use. The owners of the company challenged the constitutionality of Texas statute.

The 5th Circuit, in a ruling last week, said the issue was whether Texas law places a burden on an individual’s due process right to engage in private intimate conduct of his or her choosing. The court said the answer to the question was yes.

A challenge to Alabama’s law is pending in the 11th Circuit.

Virginia’s law barring obscene items is a bit different from other state laws and does not seem to apply to sex toy sales, said Phil Harvey, president of Adam & Eve Inc.

Louisiana, Kansas and Colorado had laws barring obscene devices, but courts have since struck them down, the 5th Circuit judges wrote in their ruling. The 11th Circuit Court of Appeals struck down a Georgia law banning the advertising of sex toys, which can be sold under some approved circumstances.

“An individual who wants to legally use a safe sexual device during private intimate moments alone or with another is unable to legally purchase a device in Texas, which heavily burdens a constitutional right,” the 5th Circuit said in the Texas case.

“Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution.”

• The Clarion-Ledger contributed to this report



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