Williams v. Pryor
| Decision Date | 29 March 1999 |
| Docket Number | No. Civ.A. 98-S-1938-NE.,Civ.A. 98-S-1938-NE. |
| Citation | 41 F.Supp.2d 1257 |
| Parties | Sherri WILLIAMS, B.J. Bailey, Betty Faye Haggermaker, Sherry Taylor-Williams, Alice Jean Cope, and Jane Doe, Plaintiffs, v. Bill PRYOR, in his official capacity as the Attorney General of the State of Alabama, Defendant. |
| Court | U.S. District Court — Northern District of Alabama |
Michael Lawrence Fees, Watson Fees & Jimmerson PC, Huntsville, AL, Amy L. Herring, Harris & Herring, Huntsville, AL, Mark J. Lopez, American Civil Liberties Union, New York City, NY, for Sherri Williams, B.J. Bailey, Betty Faye Haggermaker, Sherry Taylor-Williams, Alice Jean Cope, Jane Doe, plaintiffs.
Bill Pryor, Robert M. Weinberg, Courtney W. Tarver, Office of the Attorney General, Montgomery, AL, for Bill Pryor, defendant.
Julian D. Butler, George W. Royer, Jr., John Jeffery Rich, Sirote and Permutt PC, Huntsville, AL, for Tim Morgan, defendant.
The Alabama Legislature enacted an "Anti-Obscenity Enforcement Act" during the Regular Session of 1989. The Act subsequently was codified at Alabama Code §§ 13A-12-200.1 to -200.10 (1975) (1994 Replacement Volume). Nine years later, during the 1998 Regular Session, the Alabama Legislature amended various provisions of the Act through passage of Alabama Act No. 98-467.1 Among other changes wrought, section 6 of Act No. 98-467 extended Alabama Code § 13A-12-200.22 —which previously had applied only to the "distribution" of "obscene material"3 — so as to criminalize the distribution of "any device designed or marketed as primarily useful for the stimulation of human genital organs...."
(a)(1) It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value. Material not otherwise obscene may be obscene under this section if the distribution of the material, the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica for the sake of prurient appeal. Any person who violates this subsection shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than ten thousand dollars ($10,000) and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than one year. A second or subsequent violation of this subdivision is a Class C felony if the second or subsequent violation occurs after a conviction has been obtained for a previous violation. Upon a second violation, a corporation or business entity shall be fined not less than ten thousand dollars ($10,000) nor more than fifty thousand dollars ($50,000).
1998 Ala. Acts 98-467, § 6, now codified at Alabama Code § 13A-12-200.2(a)(1) (Supp.1998) ().
For convenience, this court shall hereafter refer to the statutory prohibition pertaining to "any device designed or marketed as primarily useful for the stimulation of human genital organs" in an abbreviated form, by the use of the phrase "sexual devices," or sometimes "proscribed devices."
Six plaintiffs bring this action pursuant to 42 U.S.C. § 1983, challenging the constitutionality of Alabama Code § 13A-12-200.2(a)(1), as thus amended. These plaintiffs may be bifurcated into discrete groups, each averring potential harm from enforcement of the challenged statute: (1) vendors of sexual devices (the "vendor plaintiffs"); and (2) persons who use such devices (the "user plaintiffs").
The first group includes plaintiffs Sherri Williams and B.J. Bailey. Williams is the principal shareholder of "Pleasures," an Alabama corporation that owns and operates two retail stores located in Huntsville and Decatur, Alabama, respectively, both of which display and sell sexual devices and novelties. Bailey is the principal investor in "Saucy Lady, Incorporated," an Alabama corporation selling sexual devices and novelties, including vibrators, lubricants, and oils, through in-home "`Tupperware' — style parties." These vendor plaintiffs fear criminal prosecution under the subject statute, and seek injunctive relief barring enforcement of it. They also seek to bring suit on behalf of their customers, who allegedly are reluctant to come forward "because of the sensitive and intimately personal nature of the reasons for using the product[s]." (Complaint, Doc. No. 1, ¶ 18.)
The second group of plaintiffs includes Betty Faye Haggermaker, Sherry Taylor-Williams,4 Alice Jean Cope, and Jane Doe. Each of these persons avers that she personally uses sexual devices either for therapeutic purposes related to sexual dysfunction, or as an alternative to sexual intercourse. (Id., ¶¶ 29-33.)
All plaintiffs seek to enjoin Bill Pryor, the Attorney General of the State of Alabama,5 from enforcing Alabama Code § 13A-12-200.2(a)(1).6 They contend implementation of that statute will infringe upon their fundamental right to privacy and personal autonomy secured by the United States Constitution. Plaintiffs further argue that the challenged legislation does not bear a reasonable relationship to a proper legislative purpose.
Plaintiffs initially sought a temporary restraining order, but formally withdrew that request on September 9, 1998, following an agreement among the parties stipulating that "the status quo would be maintained and the amendments not enforced with respect to plaintiffs' [sic], pending the Court's determination following a hearing on plaintiffs' claims for preliminary injunctive relief." (Plaintiffs' request for expedited scheduling conference, Doc. No. 27, at ¶ 2). No state adjudication has occurred, and none is pending. The matter presently is before the court on plaintiffs' motion for permanent injunctive relief.7
I. STATEMENT OF UNDISPUTED
FACTS
A. The Vendor Plaintiffs
1. Sherri Williams and "Pleasures"
2. B. J. Bailey and "Saucy Lady
Incorporated"
3. Other vendors of sexual devices
B. The User Plaintiffs
1. Betty Faye Haggermaker
2. Sherry Taylor-Williams
3. Alice Jean Cope
4. Jane Doe
C. Relevant Provisions of Alabama
Law
D. Condoms, Virility Drugs, and
Masturbation
E. Recognized Therapeutic Uses of
the Proscribed Devices
1. Federal Food and Drug Administration
regulations
2. Booksellers, magazine publishers
gift shops, and Internet websites
3. Alfred Jack Turner, Ph.D
4. Pepper Schwartz, Ph.D
II. ANALYSIS OF THE PARTIES'
CONTENTIONS
A. Standing to Sue
B. Framework of Analysis for Substantive
Due Process Claims
C. Does the Alabama Act Infringe on
a Fundamental Right
1. Background: fundamental
rights generally
2. Plaintiffs' assertion of a fundamental
right
3. The Attorney General's response
4. Decisions of other courts faced
with this issue
5. Breadth of the fundamental
right to privacy
D. Rational Basis Review
1. Conceivable state interests
2. Are the interests legitimate
a. Banning public displays of obscene
material
b. Banning "the commerce of
sexual stimulation and auto-eroticism,
for its own sake, unrelated
to marriage, procreation[,] or familial
relationships"
c. Banning commerce of obscene
material
3. Is Alabama Code § 13A-12-200.2(a)(1)
rationally related to
these legitimate state interests?
a. Banning public displays of obscene
material
b. Banning "the commerce of
sexual stimulation and auto-eroticism,
for its own sake, unrelated
to marriage, procreation[,] or familial
relationships"
c. Banning commerce of obscene
material
(1) What can be classified as "obscene"?
(2) What are the devices "designed
or marketed as useful primarily
for the stimulation of human
genital organs"?
(3) Are these devices obscene?
III. CONCLUSION
The stipulation of facts filed by the parties on December 3, 1998, is set forth in full immediately below.8
1. Plaintiff Sherri Williams is a resident of Florida and the owner and operator of "Pleasures," an Alabama corporation doing business in Alabama. "Pleasures" has two retail stores in Alabama, one located in Huntsville and one in Decatur. Sexual aids and novelties are displayed and sold at these locations.
1993. It is located on a main thoroughfare of Huntsville in a small shopping mall within a retail business district. It is adjacent to other retail stores which include an adult video store, a liquor store, a hair salon, a spa, an O'Charley's restaurant[,] and also a Wal-Mart Super Center just 150 feet to the rear.
3. The "Pleasures" store in Decatur has been in operation since February, 1996. It is located on a main thoroughfare of Decatur in a small shopping mall within a retail business district. It is adjacent to other retail stores, which include a Texaco, a chiropractor's office, a pet grooming facility, a tanning salon, a printer, a specialty kite shop[,] and a women and children's linen clothing store.
4. Both stores have brick storefronts with large display windows which commonly display lingerie, massage oils, adult games, hosiery, instructional videos, bath powders, aromatherapy candles, romance novels, etc. They also have standard wood signage on the glass front doors stating, "If offended by explicit sexuality, Please do not enter, You must be 21 years of age."
5. The products in both stores are displayed openly in much the same way [that] products are displayed in a novelty store.
6. The product line in both stores is adult oriented and persons under the age of 21 are not permitted entry.
7. Both stores are strictly retail. There are no sexual performances or video shows. The only services...
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