NEW ORLEANS – The State of Texas wasted no time in petitioning the Fifth Circuit for an en banc hearing of all of the Circuit's justices to reconsider a Fifth Circuit three-judge panel's Feb. 12 decision in Reliable Consultants, Inc. v. Earle, which overturned Texas' "obscene device" statute.
"This proceeding," wrote Assistant Solicitor General Bill L. Davis in the petition filed by Texas Attorney general Greg Abbott and several members of his office, "involves a constitutional question of exceptional importance: Whether this Court should expand the doctrine of substantive due process to invalidate morality-based laws that neither permit government invasion of private property nor regulate private, noncommercial conduct."
Interestingly, in the argument that follows, Davis' tactic is to focus on the "obscene" part of the term "obscene device," as if it were understood that whether or not such devices can be sold is a First Amendment issue rather than a Fourteenth Amendment substantive due process issue. He claims that under the Fifth Circuit's 1981 case, Red Bluff Drive-In, Inc. v. Vance, it is settled law in the circuit that "'obscene devices,' as defined in the statute, are 'obscene per se' ... Yet the panel majority ignores Red Bluff (never citing it) and equates obscene devices with contraceptives, rather than other forms of obscenity. The distribution of contraceptives is constitutionally protected, given its direct link to individuals' constitutionally protected ability to control whether or not they have children. The distribution of obscenity, however, is not." [Citations removed here and below]
That "[equation of] obscene devices with contraceptives" is a reference from the Supreme Court's seminal birth control decision, Griswold v. Connecticut, a decision that some knowledgeable attorneys believe made the Lawrence v. Texas decision, which overturned Texas' anti-sodomy law, almost inevitable.
"Griswold was certainly a case where a privacy right was implicated based on a restriction of commercial activity, so they [petitioners] are talking about two different aspects of regulation," observed First Amendment attorney Jennifer Kinsley, a member of the team representing the appellant in the original appeal. "They're trying to make this sound like all they're doing is regulating commerce and it doesn't affect anyone's private behavior, and that's simply not the case.
"In addition to creating a circuit split with Williams VI," Davis wrote, referring to the final district court hearing in the Sherri Williams matter, "the decision also conflicts with the combination of: (1) Supreme Court precedent establishing the absence of any constitutional right to receive, transport, or distribute obscene materials ... and (2) a prior decision of this Court holding that obscene devices, as identically defined in a previous version of this same statute, are "obscene per se."
The "obscene per se" issue has been covered above. The "Supreme Court precedent" to which Davis refers is Paris Adult Theater I v. Slaton and its progeny; Paris being the 1973 case where the Court ruled that "[o]bscene material is not speech entitled to First Amendment protection," and that "[e]xhibition of obscene material in places of public accommodation is not protected by any constitutional doctrine of privacy." The state attempts to bolster its case against the devices by citing Red Bluff, where the appeals panel found that a previous version of Texas' "obscene device" law was "consistent with the definition of obscenity announced in Miller v. California."
"No, it is not; no, no, no, no, no!" disagreed Kinsley. "In fact, it's inconsistent with Miller because Miller requires, for material to be obscene, sexual conduct as specifically defined by state law. A device is not sexual conduct. If you want to talk about the packaging or something maybe being obscene, we can have a rational discussion about that, but a device itself, unless it's got two separate anatomical parts that are being joined in some way, there is not sexual conduct being depicted by an anatomical device."
Not even dildos cast from live penises?
"I think that's absolutely what they're implying," Kinsley observed, "although even they must realize the ridiculousness of that, because they don't explicitly spell that out. Miller very clearly says that obscenity law is applied to depictions of sexual conduct as specifically defined by state law, and I don't know what the sexual conduct is that's being depicted by these devices. There must be some sort of conduct involved, not merely a depiction of an object or a body part."
But beyond the viability of "obscene device" laws in the aftermath of Lawrence v. Texas – see previous story – the state claims that the appellate panel's decision in this case is "untenably indefinite" in that it failed to "identify the applicable level of constitutional scrutiny" being used to balance the state's interests in retaining the law versus the public's privacy interests in being able to buy the devices, and that the decision makes it "uncertain as to what, if any, morality-based legislation is constitutionally permissible" within the circuit.
"They're stretching what the court did, first of all, especially in terms of the morality piece of it," Kinsley responded. "They're making it sound as though after this decision, no morality-based law will ever stand up, and that's simply not the case, particularly because the panel decision says, 'We are not saying that; we are saying morality is not enough to justify this limited law.'"
And as for the level of scrutiny required, Kinsley notes that there's a good reason the panel didn't define it.
"They said, 'under Lawrence, we do not need to identify the level of scrutiny because Lawrence didn't,' so that's not a problem. And I think even looking at that issue, if the level of scrutiny isn't specified, I think it's safe to assume that it was 'rational basis,' and even under rational basis review, these kinds of laws cannot stand up."
"Rational basis" scrutiny is the lowest form of scrutiny used by courts to decide legal issues, and is heavily weighted in favor of upholding the legislature's intent. For a law to have failed the "rational basis test," the law usually must be found to have been arbitrary or irrational – and with the Lawrence decision affirming that Texas' legislature had no legitimate reason to regulate its citizens' private sexual conduct, the appellate panel could hardly have found that it had reason to regulate its citizens' use of sexually stimulating devices.
Finally, the en banc petition claims that the Reliable Consultants decision creates a "conflict in the Circuits," since within the past year, the Eleventh Circuit had affirmed the trial court's dismissal of Sherri Williams' lawsuit against Alabama's own "obscene device" law.
"The decision absolutely does create a circuit split, but the Fifth Circuit got it right where the Eleventh Circuit got it wrong," Kinsley agreed. "I hate to say this, but they do make a pretty compelling case for the court to review this situation, because there is a split in the case law and there is a split in the way courts have treated these kinds of decisions."
However, Kinsley doesn't know whether her team will be required to respond to the state's en banc petition.
"Procedurally, we are not permitted to respond unless the court requests a response," Kinsley advised. "All the circuits have that rule, although the Fifth Circuit has its own rule that en banc rehearing are particularly disfavored and discouraged, so I'm hopeful that we will not be asked to provide a response and that this motion will be denied."
There is no deadline within which the Fifth Circuit must decide whether to grant the en banc petition ... but when/if it does, you'll read about it here.