A Stitch in Haste

It almost sounds like a sketch from Mad TV:

Police confiscated two display photos of scantily clad men and a woman from an Abercrombie & Fitch store and cited the manager on a misdemeanor obscenity charge, authorities said.

The police issued the summons Saturday after Abercrombie management did not heed warnings to remove the images from the Lynnhaven Mall store after some customers complained, police spokesman Adam Bernstein said.
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City code makes it a crime to display "obscene materials in a business that is open to juveniles," Bernstein said.

Here is the artwork:


Some hasty stitches:

--The basic obscenity charge is unsustainable (i.e., the city code is blatantly unconstitutional). An inch of adult butt-crack is simply not "obscenity" under the Constitution. All but child pornography and the most prurient XXX-rated smut is protected under the First Amendment (see Miller v. California, 413 U.S. 15 (1973)).

--The notion of banning "nude" artwork where minors are welcome to traffic might entail a different analysis, but the code refers to "obscenity" — which, again, these pictures simply aren't.

--Even if they were, there is no mention of a warrant to seize the artwork. Since this was clearly a novel question regarding a constitutionally suspect law (not to mention a low-level misdemeanor), would it have so burdensome to the smut patrol police officers to refer the matter to a judge beforehand, rather than "confiscate first, litigate later"?

--Note again how flippantly property rights are utterly disregarded here (cf., this recent post). This was not art displayed on public property or forced upon a captive audience (not even a captive audience of juveniles). Anyone prudish enough to take offense at these photographs, or who does not want their precious little snowflakes corrupted by viewing some butt-crack, can shop at GapKids (or, better still, over the Internet).

--I never pass up an opportunity to highlight that Ron Paul is not a libertarian but only an anti-federalist. In his utopia, the anti-liberty, anti-property activist legislators who enacted this silly ordinance would be perfectly within their rights — their "states rights" — to do so.

More thoughts from Tom Rants, Howling Point, Rolling Doughnut, Dolphin's Dock.


UPDATE: Charges to be dropped. Virginia has some law school graduates after all.

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For those not familiar with Mad TV and A&F:

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And in case you missed this video gem from a few months ago.

A major circuit split has arisen over so-called "sex toy bans."

To review: An Alabama statute banning the sale (but not the possession) of sex toys survived a long and arduous challenge in the Eleventh Circuit Court of Appeals.* A key holding in that case was that sexual privacy of the kind guaranteed after Lawrence v. Texas** did not extend to commercial transactions. A "right to private consensual sodomy," the Eleventh Circuit eventually ruled, does not imply a "right to buy or sell a dildo."

Reviewing a Texas statute imposing essentially the same ban, the Fifth Circuit reaches the exact opposite conclusion:

The case is not about public sex. It is not about controlling commerce in sex. It is about controlling what people do in the privacy of their own homes because the State is morally opposed to a certain type of consensual private intimate conduct. This is an insufficient justification for the statute after Lawrence.

The court is using a reductio ad absurdum argument: What good is a "right to own a sex toy" if the government makes it impossible, or unduly burdensome, to actually acquire one? The court draws a direct analogy to Griswold v. Connecticut***, the landmark predecessor to Lawrence that held that a "right to contraception" must also imply a "right to sell contraception."

A clear circuit split on a major constitutional question such as substantive due process is an express lane to Supreme Court review. Stay tuned.

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Two more hasty stitches:

1. The majority expressly rejected Texas' argument that "sexual gratification unrelated to procreation" somehow enjoys less substantive due process protection than "morality based" (i.e., procreative) sex. The read-through to gay marriage bans — which have been repeatedly upheld recently on this specious "procreation is different" rationalization — is clear.

2. Wouldn't it be nice if, rather than perpetually litigating, re-litigating, appealing, re-appealing, circuit-splitting and certiorari-petitioning the question of what the right to privacy (i.e., sexual substantive due process) does and does not mean, we instead recognized the right of property and simply allowed individuals to buy or rent a plot of land, build or rent a store on it, and sell whatever he pleased, at least to competent consenting adults (i.e., economic substantive due process)?

More thoughts at Rolling Doughnut, Fusionist Libertarian.

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The case is Reliable Consultants v. Earle, No. 06-51067 (5th Cir., February 12, 2008) (PDF - 22 pages).

*Williams v. Morgan, 478 F.3rd 1316 (11th Cir. 2007), cert. denied sub nom Williams v. King, 128 S.Ct. 77 (2007) (PDF - 16 pages). See also Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001) and Williams v. Attorney General, 378 F.3d 1232 (11th Cir. 2004).

**Lawrence v. Texas, 539 U.S. 558 (2003).

***Griswold v. Connecticut, 381 U.S. 479 (1965).

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Elsewhere:

Police raided a novelty gift shop inside the Layton Hills Mall, seizing 15 boxes of items they said were sexually explicit. The raid happened Tuesday morning just as Spencer Gifts was opening for business. Police said a search warrant was drafted, seeking numerous items that may violate Utah laws on dealing materials harmful to a minor.
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While none of the items in the shop are illegal, authorities allege Spencer may have run afoul of the state statute by having sexually explicit items available for purchase and display to minors. Police were vague in their descriptions of the items seized but acknowledged seizing games, food items and items that could be described as "sex toys."

This fact pattern is a bizarre cross between the aforementioned bans on true sex toys and the recent Abercrombie & Fitch faux-obscenity prosecution/persecution — which was also based on an "accessible by juveniles" statute.

The best defense, other than suggesting a revival of economic substantive due process, would be to challenge the Utah statute as unconstitutionally vague: If a reasonable person cannot tell whether edible underwear is criminally "obscene," then he cannot be prosecuted for displaying it or selling it to minors.