Meeting the Sin Laws » privacy

Utah’s alcohol laws

Cary Wiggins — Tue, 10 Feb 2009 16:09:25 +0000

In his article “Bars are about more than drinking,” Daniel Levin ponders Utah’s current private club laws. Which, he notes, “are most often derided because they are so inconvenient and so irrational as to be maddening. But,” he believes, ”they are most offensive for their chilling effect on Americans’ constitutional right of free association.” Mr. Levin makes a good point:

Drinking establishments have long served as incubators of America’s traditions of democratic self-government and our distinctive culture. There is no better place to find genuine political debate than a pub. The American rebellion against Great Britain was largely planned in taverns, and many of the most important discussions that led to drafting of the U.S. Constitution took place in City Tavern, across from Independence Hall, during the Constitutional Convention.

Speak-easies gave birth to jazz, Southern ‘juke joints’ spawned the blues and honky-tonks nurtured country music, all authentic expressions of America’s genius. American comedy, essential to our national sanity, is as much a product of nightclubs as it is of vaudeville.

People love people. And people love to talk, and sometimes listen. And people go to bars to talk, and sometimes listen. (Mr. Levin’s article appears in today’s edition of The Salt Lake Tribune.)

Texas sexual device ban held unconstitutional

Cary Wiggins — Wed, 13 Feb 2008 14:20:00 +0000

The Fifth Circuit Court of Appeals just reviewed Texas’s obscenity statute, and here’s how the opinion begins:

This case assesses the constitutionality of a Texas statute making it a crime to promote or sell sexual devices. The district court upheld the statute’s constitutionality and granted the State’s motion to dismiss for failure to state a claim. We reverse the judgment and hold that the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution.

It’s recognized that, in constitutional law, the answer often depends on how the question is framed. In this case the questions were posed this way:

Plaintiffs claim that the right at stake is the individual’s substantive due process right to engage in private intimate conduct free from government intrusion. The State proposes a different right for the Plaintiffs: ‘the right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.’

It looks like the court of appeals didn’t like the State’s picture, and it didn’t buy the frame.

Liberty 1, Absurd Legislation 0.

The Government & Morality

Cary Wiggins — Wed, 23 May 2007 14:13:00 +0000

It’s a debate that will never end: Should government judge morality for us? That’s the topic from this op-ed recently posted on MiamiHerald.com, discussing the plight of Sherri Williams and her sex toys case from Alabama. The government (we?) routinely answers morality questions with legislation. After all, both murder and theft are widely considered immoral, and that’s no doubt one reason that American governments have banned both acts with some exceptions. But I’m not sure that public morality, standing alone, supplies a rational basis for legislating when the law’s proscription targets private behavior. I guess we’ll have to wait and see.

Good (and bad) things come in small packages

Cary Wiggins — Wed, 11 Oct 2006 14:16:00 +0000

The Tenth Circuit Court of Appeals issued this opinion yesterday. The case involves a retail novelty store, Dr. John’s, that sells a “range” of adult products. When the City of Roy (Utah) insisted that Dr. John’s submit to its sexually oriented business (SOB) licensing scheme, Dr. John’s launched a comprehensive challenge to the city’s SOB ordinances. At the core of these challenges was one to the “pre-packaged studies” that local governments frequently review (or cite) in support of the need for stringent laws regulating adult entertainment. The opinion walks through several issues, but found error in only one decided by the district court: whether the ordinance was properly supported as targeting the untoward “secondary effects” adult businesses are thought to produce. The Court stated, “It is unclear from the record what evidence supporting and countering the City’s rationale that the ordinance was indeed necessary to prevent these negative effects was presented to, and considered by, the district court.”

If, on remand, Dr. John’s succeeds in refuting the veracity and reliability of the city’s “pre-packaged” studies, the remainder of this Tenth Circuit opinion might become “retroactive dicta.”

The USSC turns away sex toy case

Cary Wiggins — Tue, 03 Oct 2006 01:40:00 +0000

Reuters reports here that the U.S. Supreme Court declined to grant certiorari and hear a sex-toy case arising out of Texas. “His attorney challenged the law as unconstitutional, claiming it violated the right to sexual privacy without government interference. The court, which rejected a challenge to a similar Alabama law last year, denied the appeal without any comment,” reports the article.

Earlier this year I commented on that “similar Alabama law,” and my comments appeared in the uber-cool Mother Jones magazine.

Check out this post, too, from the First Amendment Center on other First Amendment cases which the Supremes turned away.