Texas obscenity statute

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The Texas obscenity statute is a statute prohibiting the sale of sex toys in Texas. The law was introduced in 1973, and was last updated in 2003. While the law was never formally repealed, in 2008 a U.S. District Judge released a report declaring it to be "facially unconstitutional and unenforceable."

Contents

History

In 1973, the Texas Legislature passed Section 43.21 of the Texas Penal Code, which, in part, prohibited the sale or promotion of "obscene devices." The statute defines "obscene device" as "a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." The legislation was last updated in 2003, and Section 43.23 currently states, "A person commits an offense if, knowing its content and character, he wholesale promotes or possesses with intent to wholesale promote any obscene material or obscene device." [1] Section (f) of the law also criminalizes the possession of six or more devices (or "multiple identical or similar" devices) as "presumed to possess them with intent to promote." [1]

Prosecuted cases

Prosecution under the statute is rare but has occasionally occurred. In 2001, attorneys Mary and Ted Roberts used the obscenity statute in an elaborate extortion scheme against a number of men who had engaged in extramarital relations with Mary Roberts. [2] In Burleson in 2004, Joanne Webb faced up to one year in prison for selling a vibrator to two undercover police officers posing as a married couple at a private party. [3] She was later acquitted, and the undercover officers were issued reprimands. In 2007, a lingerie shop in Lubbock was raided, and items "deemed to be illegal by the Texas Penal Code" were confiscated. The clerk on duty at the time was arrested, but charges were later dropped. [4] [5]

Appeals

Reliable Consultants, Inc., who operate four retail stores in Texas that carry a stock of sexual devices, and PHE, Inc., which is also engaged in the retail distribution of sexual devices through their website and catalogs, both filed lawsuits against the legislation,[ when? ] claiming that the statute is unconstitutional. In an appeal from the United States District Court for the Western District of Texas, a three-judge panel of the United States Court of Appeals for the Fifth Circuit overturned the statute on February 12, 2008, by a vote of 2–1, holding that "the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution". [6] The State of Texas filed a petition on February 22, 2008, for the Circuit Court to rehear the argument en banc. [7]

On July 3, 2008, Texas's 13th Court of Appeals in Corpus Christi [8] in the case of Villareal v. State, [9] addressed the ruling of the federal Court of Appeals. The 13th Court of Appeals ruled that until the Texas Court of Criminal Appeals rules that Section 43.23 is unconstitutional, the promotion of obscene devices remains illegal. [10] Therefore, despite the actions of the federal courts and the Texas Attorney General described elsewhere in this article, Section 43.23 remains in effect in the twenty-county area of Texas within the jurisdiction of the 13th Court of Appeals. [11]

On August 1, 2008, the Fifth Circuit denied Texas's request to re-hear the case en banc. [12] The refusal created a split between federal circuits: the 5th Circuit overturned the Texas law and the 11th Circuit upheld the nearly identical Anti-Obscenity Enforcement Act in Alabama. The presence of a "circuit split" is one of the factors that increases the likelihood of the Supreme Court of the United States granting a writ of certiorari and ruling in order to clear up the disagreement between the two Courts of Appeals. [13]

On November 4, 2008, U.S. District Judge Lee Yeakel released a two-page document dated October 29, 2008, in which he stated that the Texas Attorney General's Office notified him that they would not file a writ of certiorari with the Supreme Court. The next month, on November 13, Yeakel filed a "joint status report" that noted the parties had come to an agreement. "Texas Penal Code §§ 43.23, to the extent that it applies to 'obscene devices' as defined in Texas Penal Code § 43.21(a)(7), is declared to be facially unconstitutional and unenforceable throughout the State of Texas". [14]

See also

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test.

<span class="mw-page-title-main">Comstock Act of 1873</span> United States obscenity law, enacted in 1873, and amended since.

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People v. Freeman was a criminal prosecution of Harold Freeman, a producer and director of pornographic films, by the U.S. state of California. Freeman was charged in 1987 with pandering - procurement of persons "for the purpose of prostitution" - under section 266i of the Cal. Penal Code for hiring adult actors, which the prosecution characterized as pimping. The prosecution was part of an attempt by California to shut down the pornographic film industry. The prosecution's characterization was ultimately rejected on appeal by the California Supreme Court. Prior to this decision, pornographic films had often been shot in secret locations.

<span class="mw-page-title-main">PROTECT Act of 2003</span> United States law regarding child abuse and violent crimes against children

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<i>United States v. Extreme Associates, Inc.</i>

United States v. Extreme Associates, 431 F.3d 150, is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across state lines. After several years of legal proceedings, the matter ended on March 11, 2009, with a plea agreement by Rob Zicari and Lizzy Borden.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.

<span class="mw-page-title-main">Dildo</span> Sex toy, often phallic

A dildo is a sex toy, often explicitly phallic in appearance, intended for sexual penetration or other sexual activity during masturbation or with sex partners. Dildos can be made from a number of materials and shaped like an erect human penis. They are typically about the average length of an erect penis, 4–6 inches (10–15 cm), but some may be longer. A dildo's circumference is typically 4–5 inches (10–13 cm).

<i>Williams v. Pryor</i>

Williams v. Pryor, 229 F.3d 1331, rehearing denied, 240 F.3d 944 was a federal lawsuit that unsuccessfully challenged an Alabama law criminalizing the sale of sex toys in the state. In 1998, a statute enacted by the legislature of the State of Alabama amended the obscenity provisions of the Alabama Code to make the distribution of certain defined sexual devices a criminal offense. Vendors and users of such devices filed a constitutional challenge to the statute in the United States District Court for the Northern District of Alabama against William H. Pryor, Jr., in his official capacity as the Attorney General of the State of Alabama. The district court declined to hold the statute violated any constitutional right but determined the statute was unconstitutional because it lacked a rational basis. The State appealed to the Eleventh Circuit Court of Appeals, which reversed the lower court ruling on October 12, 2000.

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Earl Leroy Yeakel III, also known as Lee Yeakel, is a former United States district judge of the United States District Court for the Western District of Texas.

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged in sexual and excretory activity.

Town of Mt. Pleasant v. Chimento was a South Carolina case that ruled that while poker was a game of skill, the Dominant Factor Test is not demonstrably a legal standard in South Carolina and thus poker is still subject to the laws related to gambling. The case was later appealed to a higher South Carolina district court where the Judge overturned the trial court's convictions, stating that Dominant Factor Test was the appropriate legal standard and therefore participating in a private home poker game is not illegal, nor is it gambling. The Judge further declared sections of the 207-year-old statute unconstitutionally vague and therefore void. In 2012, the South Carolina Supreme Court upheld the statute and reinstated the convictions of the defendants.

<span class="mw-page-title-main">Child pornography laws in the United States</span>

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The Anti-Obscenity Enforcement Act of 1998 is an Alabama statute that criminalizes the sale of sex toys. The law has been the subject of extensive litigation and has generated considerable national controversy.

<i>American Booksellers Foundation for Free Expression v. Strickland</i> Judgment on Constitutional issue

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United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech or expression under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

References

  1. 1 2 "Penal Code Chapter 43. Public Indecency". Statutes.legis.state.tx.us. Archived from the original on September 18, 2012. Retrieved July 15, 2017.
  2. ↑ "There's something about Mary1 …". Texas District & County Attorneys Association. Archived from the original on May 16, 2008.
  3. ↑ "Texas mom faces trial for selling sex toys". CNN . February 11, 2004. Archived from the original on January 10, 2013. Retrieved July 15, 2017.
  4. ↑ "Police Raid Lingerie Shop". klbk13.tv. May 21, 2007. Archived from the original on May 25, 2007. Retrieved May 21, 2007.
  5. ↑ "Lubbock District Attorney Drops Charges Against Lingerie Store". July 16, 2007. Archived from the original on December 10, 2021. Retrieved July 15, 2022.
  6. ↑ "PHE v. State of Texas, Intervenor-Defendant-Appellee". FindLaw. Archived from the original on July 15, 2017. Retrieved July 15, 2017.
  7. ↑ Reliable Consultants, Inc v. Ronnie Earle, 06-51067 & 06-51104 (5th Cir.February 22, 2008).
  8. ↑ Texas Office of Court Administration. "Welcome to the official site of the Thirteenth Court of Appeals of Texas". 13thcoa.courts.state.tx.us. Archived from the original on 2013-08-25. Retrieved 2013-09-01.
  9. ↑ "Texas Judiciary Online - HTML Opinion". 13thcoa.courts.state.tx.us. Archived from the original on 2016-01-12. Retrieved 2013-09-01.
  10. ↑ Guest, Robert (October 6, 2008). "Are Dildos Illegal in Texas (again)?". Dallas Criminal Defense Lawyer Blog. Archived from the original on July 30, 2012. Retrieved July 15, 2017.
  11. ↑ "Dildos & Sexually Obscene "Toys" Illegal in Texas … for now | Austin Attorney Dax Garvin". Dax Legal. January 31, 2012. Archived from the original on July 16, 2012. Retrieved July 15, 2017.
  12. ↑ "United States Court of Appeals" (PDF). Ca5.uscourts.gov. Retrieved 2013-09-01.
  13. ↑ Brayton, Ed (August 11, 2008). "Dildos at the Supreme Court?". ScienceBlogs . Archived from the original on October 18, 2008. Retrieved August 11, 2008.
  14. ↑ "2008-11-13 Texas Western Court Order Obscenity Law | PDF | Attorney's Fee | Judgment (Law)".
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