sweet home alabama

July 29, 2004 11:27 AM

Attention Alabama Sex Toy Shoppers:the Feds have agreed that you will have to buy your buttplugs, rabbit pearls, and french ticklers elsewhere.
posted by tsarfan (36 comments total)

I just keep re-reading the first sentence over and over in disbelief.
posted by archimago at 11:31 AM on July 29, 2004

More here.
posted by homunculus at 11:31 AM on July 29, 2004

It's pretty clear, isn't it? The constitution doesn't give Alabamans a right to sell buttplugs. Nothing wrong with that. The court is saying the law doesn't violate the constitution. It's not saying it's a good law.

Personally, I think it's one of the stupidest laws around. But I also agree with the court. Alabamans should revoke their own stupid law, not have the federal government do it for them.

Am I missing something?
posted by whatnotever at 11:41 AM on July 29, 2004

Hey, you guys fought a war to keep them in the union. Don't complain now! ;)

(You'd think the Supreme Court would likely overturn this, assuming it goes to court before Bush adds more right-wing maniacs if he wins in November)

The court is saying the law doesn't violate the constitution. It's not saying it's a good law.

It's saying that people don't have a right to private sex lives. If you don't see the problem with that you might already be a lost cause.
posted by The God Complex at 11:45 AM on July 29, 2004

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

Those pesky consenting adults must be stopped.

On preview: TGC, it saddens me that some people can read the Ninth Amendment so narrowly while reading the Commerce Clause so broadly.
posted by trharlan at 11:52 AM on July 29, 2004

my question is, why are the Repubs so concerned about what i do in my bedroom, or what i put in a sweet young woman's tooshie?
posted by tsarfan at 11:55 AM on July 29, 2004

I wonder if they have a law against dog toys too.
posted by spilon at 11:56 AM on July 29, 2004

So, these Alabamians...they don't vibrate?
posted by mr_crash_davis at 11:57 AM on July 29, 2004

I can just see the required labeling on Alabama cucumbers: "This product is sold subject to the condition that the purchaser insert it into no orifice but the eating one, and that only for gustatory rather than tactile enjoyment."
posted by George_Spiggott at 11:58 AM on July 29, 2004

well, im from alabama, and i love it down here mostly, but god dammit! the right wing fundi church no brain mother fuckers are out of control down here.

maybe you heard about the ten commandment thing. people were dressed up like fuck-noah walking the street with stone tablets doing cancer sheep puppet shows about how bad the federal guv'mint is.

I havent ANAL-YZED the statue, can i internet order this shit! Lord have MERCY on us all. I'm sorry, i missed the news article where someone was SHOT to death with ANAL BEADS. I guess i can leave my kevlar at home now, im safe from that shit.

alabama: the barbeque is good, the black people are poor as shit, the bible is motherfucking everywhere, AND I CANT BUY MY GIRLFRIEND A NEW VIBRATOR!
posted by yeahyeahyeahwhoo at 12:01 PM on July 29, 2004

it's a good thing Obama's folks didn't call him Al.
posted by quonsar at 12:03 PM on July 29, 2004

But...you can still buy guns, right?

Good.
posted by adampsyche at 12:08 PM on July 29, 2004

On preview: TGC, it saddens me that some people can read the Ninth Amendment so narrowly while reading the Commerce Clause so broadly.

Commerce Clause? The commerce clause specifies the federal government's power to restrict commerce. Since this was an Alabama state law, and not a federal law, under consideration, the commerce clause is irrelevant. Nowhere is TGC claiming that the commerce clause has anything to do with it one way or the other--that is purely your own warped inference.

I challenge you to find a single instance where a state's regulation of any product whatsoever was held to be unconstitutional, save for content-based restrictions which run into the First Amendment, or on firearms, which run into the Second.

As far as cucumbers, the Alabama legislature can prohibit their sale if it's worried they'll be used for sexual purposes; it can prohibit their sale if it's worried they pose a choking hazard to small children; it can prohibit their sale if it just plain doesn't like cucumber growers; it can prohibit their sale if it missed its nap and is just cranky.
posted by DevilsAdvocate at 12:21 PM on July 29, 2004

I don't agree, TGC. The SCOTUS set sexual privacy precedence in LAWRENCE ET AL. v. TEXAS (html) (opinion) (concurrence) when they overturned Bowers v. Hardwick (more info). O'Connor did not agree with the reversing of Bowers v. Hardwick, but the reversal stands. Her reasoning is:

Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause.

I am uncertain if the SCOTUS will hear this case, but I believe it is substanatively different because it involves commerce. The use and ownership of the items is not held to be illegal by the 11th U.S. Circuit Court of Appeals, but the sale of them is.

Jay Reeves, of the Associated Press, has done a poor job of reporting the story. He's misrepresenting this quote from the decision as meaning there is no right to sexual privacy:

"If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter," the court said.

"On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases including, for example, those involving adult incest, prostitution, obscenity, and the like."

My understanding is that states have the right to govern intrastate commerce. The right to buy sexual devices is different than the right to use sexual devices. Despite that, they pulled Rick Santorum.

"If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything."

Santorum's remarks were untrue then and remain untrue now, even when coopted by judges.

Circuit Judge Rosemary Barkett disagreed, saying the decision was based on the "erroneous foundation" that adults don't have a right to consensual sexual intimacy and that private acts can be made a crime in the name of promoting "public morality."

If this holds true in further appeals, then this ruling will be struck down. However, it's not clear to me that this is the logic used by the majority.
posted by sequential at 12:34 PM on July 29, 2004

I don't understand how privacy is involved at all. The law bans no private act: it bans the necessarily public act of selling. Commerce is by definition public, isn't it? Private citizens can continue to feel free to plug one anothers' butts all they want (per Lawrence v. Texas), so long as the butt plugs are purchased in Mississippi (or, more likely, Florida).
posted by mr_roboto at 12:50 PM on July 29, 2004

When buttplugs are outlawed only outlaws will have buttplugs. You'll get my buttplug when you pull it from my ... oh, never mind ...

Also, I thought they were renamed Freedom Ticklers ....
posted by ElvisJesus at 1:03 PM on July 29, 2004

One more reason to move up here to Canada!
"The state has no place in the bedrooms of the nation." -- Pierre Trudeau
posted by Robot Johnny at 1:16 PM on July 29, 2004

You can have my buttplug when you pry it from - oh, never mind.
posted by trondant at 1:23 PM on July 29, 2004

>Am I missing something?

I'd say there's an implied right to privacy in the 4th Amendment of the US Consitution. I certianly cannot imagine the founders or any follower of Enlightenment philosophy approving of this ruling.

I also am sick of hearing these ridiculous slippery slope "arguments" regarding how certain acts done in the bedroom will lead to criminal and victimizing acts like pedophilia, rape, and bestiality. I wish the judges would just be honest enough to say "We're crazy religious, and as such we don't like them icky dildos."
posted by skallas at 1:32 PM on July 29, 2004

I'd say there's an implied right to privacy in the 4th Amendment of the US Constitution. I certainly cannot imagine the founders or any follower of Enlightenment philosophy approving of this ruling.

Skallas, can you clarify how privacy is involved? The law is a ban on an act of commerce: a public act. Alabamians can continue to use sex toys in the privacy of their own homes; they simply cannot sell them. Are you suggesting that any object that can be used in private must be allowed to be sold? This is an interesting point of view, but it strikes me as a significant contortion of the existing case law, not to mention a massive change to the status quo: states are allowed to regulate the sale of pretty much anything.
posted by mr_roboto at 1:51 PM on July 29, 2004

"I don't understand how privacy is involved at all. The law bans no private act: it bans the necessarily public act of selling."

By the same logic, it would be ok to outlaw doctors performing abortions. Selling and buying are part of the same thing. If you make it impossible for a person to exercise their rights, does it matter whether you do so directly or indirectly? How about a law that makes it illegal for the paper industry to sell paper to printers who print "politically objectionable" materials. How about a law that makes it illegal to sell birth control pills. If you tamper with someone's consitutional right, does it really matter how you do it?
posted by Outlawyr at 2:08 PM on July 29, 2004

ugh. I live in Alabama and, um, we're not all, ugh. We have good barbeque?

I can't do it anymore. I gotta move.
posted by dig_duggler at 2:21 PM on July 29, 2004

hear, hear, Outlawyr! you beat me to the punch.

"sure, you can *have* an abortion. it's only illegal if the doctor is compensated." bunk.

or in the case of California: "sure, you can *use* marijuana if a doctor prescribes it. you just can't buy it." bunk.

that said, i have very little constitutional law knowledge (though the 14th amendment seems like it can protect almost anything).
posted by mrgrimm at 2:23 PM on July 29, 2004

Surely the distinction should be made between being able to buy a sex toy in the Alabama or being able to own a sex toy in Alabama. Outlawing the former is within the constitution, the latter is not.
posted by dodgygeezer at 2:35 PM on July 29, 2004

By the same logic, it would be ok to outlaw doctors performing abortions.

OK; this is an interesting case. Clearly, the argument could be made that since a woman must visit a doctor to have an abortion, abortion is not a private act, and cannot therefore be protected by an implied privacy right in the 4th amendment. There are a couple twists on this argument that don't apply to the decision we're discussing here, however. First, there's a difference in expectation of privacy between patient and doctor than there is between customer and sex store sales clerk; this is not merely a cultural distinction, but one that is recognized by law in the form of doctor-patient confidentiality. Second, the right to abortion rests on the right to privacy in a different manner than a hypothetical right to buy sex toys would. In the case of abortion, the right is based on the right of a woman to have control over basic biological function, which in turn rests on privacy. In the case at hand, you would claim that the right to buy sex toys rests on the right to diddle yourself with a vibrator, which in turn rests on the right to privacy. What the court is saying here is that while the two latter elements of that formula may in fact follow, the former (the right to purchase sex toys) does not. In essence, while pregnancy is a basic biological function, butt plugging is not, so greater weight is given to the capacity of citizens to control their pregnancies than to fuck themselves with silicone dildos.

How about a law that makes it illegal for the paper industry to sell paper to printers who print "politically objectionable" materials.

This is clearly a First Amendment matter; it has nothing to do with privacy. Note however that even the First Amendment does not protect obscene materials; that might be a closer analogy to the case at hand.

How about a law that makes it illegal to sell birth control pills.

Have there been any judgements on a right to birth control? The arguments I made re: abortion apply here, of course, but I'm pretty sure that if the FDA decided to yank all birth control pills from the market, they'd be within their regulatory rights.

Here's another hypothetical: what would you say to a legal argument that the government had no right to ban the sale of potentially dangerous food (ungraded beef, blowfish ovaries) because eating is a basic biological function protected by privacy rights?

And for the record, I'm awfully libertarian on all of these issues (I would love to see an America where you could find dildos in every corner shop). I'm just finding it to be an interesting argument. Plus I get to use lots of neat sex toy terminology!
posted by mr_roboto at 2:55 PM on July 29, 2004

Outlawing the former is within the constitution, the latter is not.

Unless you live in Texas where owning 6 or more "obscene devises" (anything used primarily to "stimulate human genitalia" - i.e. sex toys) is verboten. Having six or more (or identical or similar devices of any number) in your possession proves intent to promote and sell such devices which is a felony. And yes, some normal Jane Does with no intent of selling their collection have run afoul of this stupid law.
posted by Orb at 2:56 PM on July 29, 2004

From the link: A federal appeals court Wednesday upheld a 1998 Alabama law banning the sale of sex toys in the state, ruling the Constitution doesn't include a right to sexual privacy. [...] On the other hand, if we today craft a new fundamental right [...]

Sigh. Vindication of Hamilton's fears concerning a bill of rights.

There is but one human right: self-ownership. All other enumerated "rights" are but recapitualtions and reinterpretations of the One.

This is not a common view in American society (by my experience), but any other position invariably leads to idiotic outcomes like the ruling at hand: an attempt to determine whether one of the infinite varieties of human behavior is a member of an impossibly finite set of so-called "rights".

The state law bans only the sale of sex toys, not their possession, the court said [...]

So the court upheld a law restricting commerce based on the perceived absence of a personal right. Justice is blind, indeed.
posted by oncogenesis at 2:56 PM on July 29, 2004

By the same logic, it would be ok to outlaw doctors performing abortions. Selling and buying are part of the same thing. If you make it impossible for a person to exercise their rights, does it matter whether you do so directly or indirectly?

Apparently it does. Civil libertarians argued against Campaign Finance Reform on the grounds that it restricted speech. No, we were told by its supporters (including a seeming majority of MeFites) it doesn't restrict speech, it only restricts spending money on speech. Which is completely different. And wouldn't you know it, the courts have largely agreed with them.

And I'm still waiting for the "the law is unconsitutional" folks here to cite a single case which would support their position.
posted by DevilsAdvocate at 3:26 PM on July 29, 2004

There is but one human right: self-ownership.

Humans are not in the class of things that can be owned. Just as you can't own the moon, you can't own yourself.
posted by bshort at 3:34 PM on July 29, 2004

what if they *gave* away the sex toys?

like buy 4 tires, get a vibrator free.

is it the act of purchasing that's illegal?
posted by tsarfan at 4:04 PM on July 29, 2004

OH NO! Where are the truck drivers gonna get their pocket pussies?
posted by Keyser Soze at 4:57 PM on July 29, 2004

alabama: the barbeque is good, the black people are poor as shit, the bible is motherfucking everywhere, AND I CANT BUY MY GIRLFRIEND A NEW VIBRATOR!

Birmingham, Alabama, new to the list, ranks at No. 7. Birmingham is the least populous city among the top 10 but has a city population that is nearly 75% African American. While race relations are a concern for residents, the city boasts the highest percentage of African American homeowners, 58%, among the top 10.

At least you were correct regarding the barbeque.
posted by justgary at 5:02 PM on July 29, 2004

DevilsAdvocate: that is purely your own warped inference.

I'm sorry that you misunderstood my comment. Let me explain:

The court said that striking down the ordinance on privacy grounds would be "craft(ing) a new fundamental right by which to invalidate the law."

But in Griswold, SCOTUS held that "to hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever."

To me, the reading used in Griswold is a generous one, and charitable to the cause of liberty. The Circuit Court decison in the linked article, by comparison, seems to be extremely narrow.

I brought up the interpretation of the Commerce Clause not because it is (specifically) germane to this case, but because it's a striking example of the court's willingness to completely ignore what the Constitution reads and what its writers intended-- which is exactly what the appeals court claims not to want to do.

To put it differently, the courts have a long history of "craft(ing)...new (ways) to invalidate the law." Why have they stopped all of the sudden?

If you are indeed an attorney, as your username suggests, I'm disappointed that the comparison I drew rings to you as a "warped inference." It's not a particularly novel or foreign way of looking at the Constitution.
posted by trharlan at 6:36 PM on July 29, 2004

"In the case of abortion, the right is based on the right of a woman to have control over basic biological function, which in turn rests on privacy. In the case at hand, you would claim that the right to buy sex toys rests on the right to diddle yourself with a vibrator, which in turn rests on the right to privacy."

Mr. Roboto, the distinction you draw relies on making abortion part of a "basic biological function" and sex toys something silly and goofy and therefore not entitled to constitutional protection. Why isn't a sex toy just as much related to this "basic biological function", e.g. human sexuality, as a sex toys, condoms, and the curtains that cover my bedroom windows. It all comes down to privacy, the right to "diddle" or procreate or fuck yourself with a carrot or have gay sex or slather yourself in chocolate, or whatever you freaking feel like doing, because we live in a FREE country where the government is not supposed to impose itself in our private life unless there's a damned compelling reason. The question isn't what right do I have to buy a dirty magazine or a sex toy, the question is, what right does the government have to interefere with that decision. What is the compelling government interest. The court here pretends it would be required to create a new right when in fact the right to privacy already exists and applies to this case.

It was a bad and wrong decision, and adds to the overall erosion of our rights.
posted by Outlawyr at 8:17 AM on July 30, 2004

tsarfan : what if they *gave* away the sex toys?
like buy 4 tires, get a vibrator free.
is it the act of purchasing that's illegal?

This is kinda how pachinko parlours in Japan skirt anti gambling laws. The parlours allow you to exchange you balls for "gifts" which you can exchange for yen around the corner.
posted by Mitheral at 1:47 PM on July 30, 2004

Since someone mentioned it...

Alabama's banished Ten Commandments monument to tour U.S.
posted by john at 11:01 AM on August 2, 2004