Advocates of censoring the Internet often argue that sexually explicit material today is "worse"--more graphic, more violent, more deviant, and more available--than it was 25 or 30 years ago. If only we could return to the innocent days of the 1950s and 1960s, when Playboy was considered risqué, they imply. Then we wouldn't be confronted with a compelling need for censorship. This sense of urgency is probably sincere, just as it was 25, 50, and 150 years ago. Would-be censors and other authoritarians always exclaim that the "bad" speech or conduct they're targeting is badder than any speech or conduct ever targeted before.
But obscenity and indecency laws are sometimes quaintly directed against the tamest, most familiar forms of sexual expression, like erotic dancing. In 1991 the Supreme Court upheld a prohibition on nude dancing; to be precise, it held that a law against public nudity could be applied, constitutionally, to erotic dancing. The general ban of nudity was justified, the Court held, by the government's legitimate interest in preserving "order and morality." Like bestiality, sadomasochism, and cockfighting, public nudity was traditionally considered immoral, Justice Antonin Scalia approvingly observed. Meanwhile, nontraditional attacks on nudity have emerged in the form of sexual harassment complaints. In a notorious case in the early 1990s, a reproduction of Goya's Naked Maja was removed from the wall of an art history classroom at Penn State University after a professor complained that it made her students uncomfortable.
While some people are still putting fig leaves on statues (quite literally), others are outraged by sex toys. In 1998 Alabama criminalized the sale of vibrators and other "devices designed or marketed as primarily useful for the stimulation of human genital organs." Legislators in Alabama apparently consider masturbation immoral, although I doubt that they approach the issue with clean hands. (Nineteen ninety-eight was also the year that Alabama's attorney general obtained an obscenity indictment against Barnes and Noble for selling books by respected photographers Jock Sturges and David Hamilton that included pictures of nude children.)
As these cases make clear, the sexual revolution did not destroy the old regime. Puritanism (which H.L. Mencken described as fear that someone else might be having a good time) is tenacious; at least, it remains a respected tradition in the federal courts, as Justice Scalia's opinions suggest. Just a few weeks ago, in Williams v. Pryor, a federal appeals court actually upheld Alabama's ban on the sale of sexual devices, in an opinion that is either amusing or appalling, depending on your mood.
A lower federal court had struck down the ban, by declaring it simply irrational. This was, as a matter of law, a highly unusual decision. The requirement that a law must have a rational relationship to some legitimate governmental objective is the most permissive standard of judicial review; its use is usually a signal that a law is about to be upheld. It is only applied to statutes that courts do not consider infringements of constitutional rights (and the lower court in Williams v. Pryor declined to recognize a fundamental right to engage in the private use of sexual devices). The court did find that Alabama had a legitimate interest in banning "the commerce of sexual stimulation and auto-eroticism, for its own sake, unrelated to marriage, procreation, or familial relationships." In other words, sexual pleasure, especially when it involves masturbation, may be banned unless it involves some greater good. Still, the court found the Alabama law arbitrary and irrational, partly because it interfered with "sexual stimulation and eroticism" in the approved context of marital relationships. (Two of the plaintiffs in the Alabama case were married women.)
The federal appeals court reversed this decision--not surprisingly, considering the lower court's reasoning. In applying the rational-relationship test, judges are not supposed to substitute judicial for legislative judgment and invalidate laws that strike them as foolish. So in deciding whether the Alabama law was rational, the appeals court was quite deferential to the state's power to regulate sexual morality. It did not laugh at the state of Alabama's argument that "a ban on the sale of sexual devices and related orgasm stimulating paraphernalia is rationally related to a legitimate interest in discouraging prurient interests in autonomous sex." Instead, with a straight face, the court quoted Alabama's brief approvingly: "[I]t is enough for a legislature to reasonably believe that commerce in the pursuit of orgasms by artificial means for their own sake is detrimental to the health and morality of the State."
Of course, courts are supposed to carefully examine public-morals legislation that infringes on fundamental rights, and the Alabama law could and should have been struck down, under a strict standard of judicial review, as a violation of a constitutional right to privacy. Constitutional arguments about vibrators are liable to verge on self-parody, I admit, but the principles of sexual privacy underlying the arguments aren't trivial. The right to read obscene material in the privacy of your own home, for example, prevents police from breaking into your house and arresting you because they don't like your reading habits. The judicial denial of a right to engage privately in homosexual relations means that you can be prosecuted for what you do in your bedroom with another consenting adult. The notorious 1986 case Bowers v. Hardwick, in which the Supreme Court upheld a Georgia law banning sodomy, involved a man arrested by police who broke into his bedroom while he was having sex with another adult male.
That sodomy law was subsequently invalidated by Georgia's highest court, but the decision in Bowers v. Hardwick still stands as a denial of a federal constitutional right to sexual privacy. Indeed, that precedent saved Alabama's vibrator sale ban. The federal appeals court in the Alabama case took the constitutional privacy questions seriously but held that Bowers v. Hardwick precluded it from ruling that the right to privacy includes a "broad fundamental right to all sexual autonomy, such as a privacy right to engage in any form of private consensual sexual behavior between adults." Because of Bowers, the appeals court reasoned, Alabama's ban on the distribution of sexual devices was clearly constitutional as applied to homosexuals. (This suggests that the Alabama legislature could criminalize masturbation by homosexuals.)
Heterosexuals, by contrast, have stronger privacy claims; the Supreme Court has recognized sexual privacy rights in a line of cases involving the use of contraception and abortion. Alabama's law could yet be struck down as applied to heterosexuals. The appeals court directed the lower federal court to reconsider the privacy claims of four plaintiffs in Williams v. Pryor--the two married women "who use sexual devices with their husbands" and two unmarried women "who began using sexual devices in marital intimacy but are now both single."
It's not clear if this case will be appealed to the Supreme Court, which may be ready to reverse Bowers v. Hardwick. Alabama's ban on vibrator sales, along with the state's underlying concern about "the pursuit of orgasms by artificial means," has been hard to take seriously (and it provoked considerable mockery when it was passed). But the challenge to this silly law has become a vehicle for raising sobering questions about individual liberty and the morality of people who outlaw pleasure. ¤