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Is There a Constitutional Right To Promote the Use of Sex Toys?
A Texas Arrest Raises the Question

http://writ.news.findlaw.com/grossman/20040127.html

Recently, Joanne Webb -- a Texas mother of three who works primarily out of her home -- advised two customers on which products they should select from the business's catalog, and on how those products worked. Then, she filled their order. The products were sex toys, and the customers said that they were a young married couple in search of some sexual regeneration. Unfortunately for Webb, however, the "couple" turned out to be undercover police officers.

Webb was charged with a misdemeanor under Texas obscenity law -- which makes it a crime to promote a device "designed or marketed as useful primarily for the stimulation of human genital organs." If convicted, Webb could face up to a year in prison and a $4000 fine. (She would also probably lose the ability to return to her former career as a grade school teacher.)

Webb is currently awaiting trial. However, the Texas law under which she will be tried may well be struck down as unconstitutional.

In June 2003, in Lawrence v. Texas, the Supreme Court issued a landmark decision striking down a Texas law making homosexual sodomy a crime. In the course of the decision, the Court recognized that -- pursuant to the constitutional Due Process right to "liberty" -- adults have a right to "enter into [an intimate relationship] in the confines of their homes and their own private lives. . . ."

The Texas law may violate that right -- a right that belongs to Webb's customers, but which Webb herself may be able to assert. The Texas law may also violate Webb's own free speech rights under the First Amendment.

Targeting "Promotion," Not Sale

Strikingly, Webb did not apparently run afoul of Texas law because she sold sex toys; she did so because she promoted them -- explaining their use and purpose. Adult stores in Texas sell the same kind of products Webb sold. But the stores deem them "novelty items" and provide no information about their intended use.

This leads to an ironic situation: Employees of adult toy stores may be less vulnerable to prosecution than an individual who gives a prohibited device to a friend, and suggests that she use it.

Also vulnerable may be the "passion parties" that Webb hosts at women's homes. The specific sale Webb made to the undercover officers did not occur at a "passion party," but many of her sales do.

"Passion Parties": Similar to Racy Tupperware Parties

What is a "passion party," exactly? According to the stereotype, 1950's suburban housewives delighted in hosting Tupperware parties. And, indeed, to this day there is a whole genre of similar parties--kitchen parties, candle parties, basket parties, and holiday décor parties, for example--that suburban women host and attend. (Though one could imagine a stereotypical counterpart for men--a Home Depot party, perhaps--I've never heard of one.)

The parties usually work this way: One woman hosts the party in her home. A sales representative from the company attends to pitch the products, demonstrate their many uses and fine qualities, and take orders. The host usually gets free merchandise based on the total sales of the party, and the sales representative gets some commission or fee from the sales as well.

"Passion parties" seem to work in the same way. A sales representative from Passion Parties, Inc., such as Joanne Web, attends a party; shows off the company's products, which include vibrators and an accompaniment of gels, lotions, and lingerie; and tells the guests how to use them.

Webb has stressed that the parties and products are about helping couples. Her stated goal is to help women spice up their marriages--and even save them. The parties become "mini-therapy sessions," Webb told one reporter. But since a major purpose of the parties is to promote the products, they may be illegal under Texas law as it now stands.

Possible Challenges to Texas's Anti-Sex-Toy-Promotion Law

That law, however, may well be unconstitutional.

To begin, the Supreme Court made clear in Miller v. California what state obscenity statutes ought to look like -- and Texas's statute generally toes the line. Under Miller, obscenity must include only material that lacks serious literary, artistic, political, and scientific value, and only material that the average person would find appeals to the prurient interest. Texas law also includes these requirements.

Typically, material deemed obscene would consist of films, videos, books, and the like -- and their sale would be prohibited. But Texas's statute is unusual in that it includes sex toys in its description of material prohibited as obscene, and focuses on promotion of such devices rather than explicitly singling out sales.

Presumably some kinds of "promotion" of some sex toys may be defensible, within the terms of the statute itself, as having "scientific" value in the sense that it promotes couples' psychological and sexual health, and women's ability to achieve orgasm. Certainly, it would be a sad commentary if a woman's advising another woman on how to use a vibrator to achieve orgasm were to be considered so wholly valueless as to be obscene.

But the problems with the Texas law also go deeper. As I discussed in an earlier column, the Lawrence decision left a variety of laws in a sort of legal limbo -- it suggested they may be unconstitutional, yet they have not yet been struck down. Now, it seems that the Texas law may belong to this class of laws as well.

The Relevance of the Lawrence v. Texas Precedent

Lawrence itself was triggered by the arrest of two men who were engaged in a consensual sexual act in a private apartment. The law under which the men were prosecuted was struck down even under the Court's laxest standard of review--rational basis review. In order to strike the law down under this standard, the Court had to deem the statute criminalizing homosexual sodomy to be wholly arbitrary, and therefore insupportable.

In striking down the statute, the Court made clear that adults have a right to "enter into [an intimate relationship] in the confines of their homes and their own private lives. . . ." This right is part of the "liberty" granted in the due process clause, which, the Court said, "gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

If consensual adult relationships can encompass sodomy, as Lawrence made clear, then arguably, they ought to encompass the voluntary use of legal sex toys as well. If prohibiting sodomy is arbitrary, certainly prohibiting (or in this case, impeding) sex toy use is arbitrary as well. After all, few would say that the historical prohibition of sexual enhancers is as strong as that of sodomy.

More to the point, Lawrence made clear that the fact that a state views a "particular practice as immoral" is not a sufficient reason for upholding a ban on it. To my knowledge, Texas has offered no reason at all for banning sex toy use. And it is hard to imagine what that reason might look like, if it were not simply a general claim that the use of sex toys is immoral. With the use of sex toys -- as with consensual private sodomy between adults -- there is no apparent risk to minors; there is no coercion; there is no prostitution; and the general public is not forced to witness the activity or formally recognize the practice.

(If Texas did come up with some rational basis for the law, Webb might be in trouble. To defend herself, she would then have to contend that sex toy use is a fundamental right. But the state might contend that, rather than being crucial to an intimate relationship, it is only an optional enhancement of it.)

Webb Should Be Able to Raise Her Customers' Rights In This Case

Readers may respond: But even if there's a right to use sex toys, wouldn't that right belong to Webb's customers, not to Webb herself?

The answer is yes -- but under the law of standing -- that is, the law determining who has the right to sue -- promoters such as Webb ought to be able to assert their customers' rights to intimate relationships, as well as their own First Amendment rights.

After all, customers have to learn that the devices exist, and learn how to use them, before they can avail themselves of the right to use them. There is little value to the right to do something, without the accompanying right to learn how