MONTGOMERY, Ala.—The Alabama Supreme Court ruled Friday that Nancy's Nook, better known to its customers as "Love Stuff," could not overturn Alabama's "obscene device" statute, although the store, at press time, was continuing to sell vibrators and similar devices under what their attorney termed an "affirmative defense."
In a case that began on January 14, 2005, the city of Hoover filed suit against Love Stuff, which had been open for business for only one month before being visited by law enforcement personnel.
At that time, the city claimed that Love Stuff—which the city deemed to be an "other form of adult-only enterprise" for its sale of vibrators and some adult DVDs and videotapes—was unlawfully operating within 1,000 feet of a school, house of worship, public housing project, daycare center or other places "frequented by minors." Such activities are prohibited by the state's Anti-Obscenity Enforcement Act, §13A-12-200.1 et seq. of the Alabama Code of 1975.
The city also claimed that the operation of the business constituted a "public nuisance" and sought to close the store on that basis. Love Stuff countersued on various grounds.
"We have a restrictive statute that you can't sell within so many feet of certain uses: schools, residences, day-cares, that type of thing," explained Amy Herring, Love Stuff's attorney. "And they had said it was 'another form of adult-only enterprise.' We argued that that was unconstitutionally vague, and the [trial] judge agreed with us, and that was in a decision rendered in November 2, 2007. So we actually got part of the statute knocked out."
The state Supreme Court's decision quoted heavily from the opinion of trial judge Robert Vance Jr., who heard the case without a jury, and who took the unusual step of actually visiting Love Stuff's premises himself, where he saw both a public area open to all customers as well as a back room (referred to during the trial as "Area B") that stocked "hard-core, adult-only material to which no child should be exposed."
The judge found that such material constituted, depending on the standard of measurement used, only 26 percent to 29 percent of the store's sales space, and from 32 percent to 36 percent of its inventory. However, since the phrase "other form of adult-only enterprise" is nowhere defined in Alabama law, Judge Vance ruled that the fact that less than one-third of the stock was "adult," it failed to meet the legal standard that the Alabama Supreme Court had set for an "adult bookstore," which is "a commercial establishment in which books or other medium depicting sexual conduct 'constitute substantially all of its stock or inventory.'" [Emphasis added]
"While no one contends that a book superstore like [Hoover landmark] Books-A-Million is an 'adult bookstore,' the problem is that the word 'substantially' is not defined," Judge Vance ruled. "What if such books constituted 60% of a bookstore's inventory—is that substantial enough to throw the business into this category? What about 40% or 20%? No guidance is given as to where to draw the line." [Citations removed here and below]
In the end, the judge ruled that Love Stuff's stock could not be considered "substantially" adult, and therefore threw out the city's contention that the store violated the distance requirements of the Anti-Obscenity Enforcement Act.
However, that left Love Stuff's challenge to §13A-12-200.2, the state's "obscene device" law, which Love Stuff sought to have declared unconstitutional—and that's where the current Supreme Court decision applies.
In making its decision, the Alabama high court's majority undertook an exhaustive comparison between its own circuit's (the Eleventh) rulings in the cases leading up to Williams v. Morgan, the long-running vibrator dispute involving retailer Sherri Williams and other plaintiffs, and the Fifth Circuit's more recent decision in Reliable Consultants v. Earle, which invalidated a Texas "obscene device" statute and other similar laws in the circuit.
Love Stuff's argument was that its right to sell vibrators rested largely on the Fifth and Fourteenth Amendments to the U.S. Constitution, which the Fifth Circuit held contained a "protected liberty interest" for users of sex toys similar to the protections afforded to private sexual conduct in Lawrence v. Texas.
While the details of the Alabama Supreme Court's analysis are interesting, in the end it concluded that the Alabama statute should be subjected to "rational basis review" rather than the "strict scrutiny" that should be afforded issues implicating fundamental rights. As such, the court ruled that the Eleventh Circuit's holding in what is known as Williams VI that "public morality supplies a legitimate rational basis for the statute" was more applicable to the dispute than the Fifth Circuit's more expansive finding in Reliable that after Lawrence, a state's "interests in 'public morality' cannot constitutionally sustain the statute."
Particularly heartening, however, is the dissent by Justices Thomas A. Woodall and Chief Justice Sue Bell Cobb.
"As recognized by the Fifth Circuit, Lawrence recognized as a constitutional right the 'right to be free from governmental intrusion regarding "the most private human [conduct], sexual behavior."
Woodall further quoted, “This right of 'adult consensual sexual intimacy in the home' was grounded upon the 'vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.'"
"In my opinion, § 13A-12-200.2, Ala. Code 1975, by generally banning the sale of sexual devices, 'impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing,'" he continued. "More specifically, '[a]n 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 [Alabama], which heavily burdens a constitutional right.' In my opinion, the majority's focus is unduly narrow and ignores the burden the statute places on private sexual activity. It is clear that United States 'Supreme Court cases hold that ... restricting the ability to purchase an item is tantamount to restricting that item's use.'"
Herring, who was also one of the attorneys representing Sherri Williams during her decade-long case, was disappointed with the ruling.
"What we currently plan to do is to call the city of Hoover's attorneys who are involved in the case and the attorney general and discuss it with them, and see what their position is," Herring told AVN. "Because we're still selling, and we have been selling in Alabama under what are listed as affirmative defenses, which include medical, scientific, educational, judicial/law enforcement and legislative, and all of our customers, when they purchase out of our back room, sign a receipt that they're purchasing the items under those exceptions. And we're very careful about that; we don't wink at people who come in and say, 'I want to buy it for a gag gift.' We tell them no, we don't sell for that purpose."
Herring isn't sure what type of reception she'll get from her opponents, but the fact that the Alabama Attorney General's office released just a two-line statement regarding the decision gives her hope.
"The attorney general apparently has issued a two-line press release on this decision, that they don't pass the laws, they just defend them; that as the office of the attorney general, it's their duty to defend statutes," Herring recounted. "That's very noncommittal, and there's a certain amount of looking foolish in all this, because the legislature has stuck to this thing like glue; they have defended it [the statute] from day one, even though it was an afterthought in the statute; I don't think any of them have read it. Not even the sponsor knew it was in there."
"But I don't know that the attorney general is that interested in protecting folks from our selling what had been quoted earlier as 'trashy' [devices] and what we're saying are medical devices," she added. "We're not sure what's going to happen, and we certainly have had some D.A.s in some counties that I won't name that have been less than friendly to the stores that we have."
Herring envisions her next step to be to the U.S. Supreme Court.
"If I remember my law correctly, the case would next go to the United States Supreme Court," she said. "This has been the ultimate decision [on the state level]. I've never appealed one from a state supreme court, but it's my understanding that it would go straight to the United States Supreme Court since it's a decision from the state's high court. Now, we couldn't challenge them on the state constitution, but they ruled on the federal constitutional issue, and there is very clearly a split in the circuits, and it may be ripe for the Supreme Court; it might not."
"We have to discuss it some more, and it may be that things will just go on like they are down there," she stated. "Our stores are really conservative. If you look at them on a national standard, they're very conservative stores. My clients try to be very cognizant of the strictures of the community and local standards; not just state standards like they have to be, but local standards; you know, what is this community all about? What would offend this community? And we were so careful when we opened this Hoover store and we're just amazed when it was attacked almost immediately. But it hasn't been much of a problem, and right now, we have customers who are worried that we might close and they'll lose their outlet."
Herring believes that the future course of the litigation, if any, will be decided in the next few days, and has promised to let AVN readers know of any further developments as they occur.