The day after Valentine's Day, prompting countless lovers to exclaim, "NOW you tell me!"

*ahem*  Is this thing on?

iocaste here of Fantasy Life taking advantage of Majikthise's generosity in permitting me to blog here for a few days...  I'll try not to break anything.

Anyhoo, apparently Virginia now has some competition as a state for lovers, because the Eleventh Circuit has just held that you may buy a dildo in Georgia.

Actually, the case is pretty hilarious.  Georgia passed a statute making it illegal when a person "sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates" obscene materials, and defined "obscene materials" to include devices that stimulate human genitals.  But the statute contained an exception: persons accused of illegally selling obscene material could defend themselves if "dissemination of the material was restricted to: (1) A person associated with an institution of higher learning, either as a member of the faculty or a matriculated student, teaching or pursuing a course of study related to such material; or
(2) A person whose receipt of such material was authorized in writing by a licensed medical practitioner or psychiatrist."

(Seriously?  I need a new doctor.)

Anyway, the plaintiffs challenged the statute on a couple of grounds, but the only one that panned out was a First Amendment challenge.  And here's how it went:  There are, argued the plaintiffs, some legal purposes for which vibrators may be sold.  Yet, the statute contains a blanket ban on all advertising.  And the First Amendment does not permit bans on advertising legal materials.   An outright ban on all advertising, said the plaintiffs, was overly broad.

The trial court rejected the argument, but in 2002, the Eleventh Circuit accepted it: A per se ban on all advertising was too broad, said the court, and it remanded back to the trial court.

The trial court examined the issue again, and this time, attorneys for Georgia defended the statute by arguing that a court could specially construe it to permit advertising for legal obscene materials.  Georgia argued that you could just remove the word "advertises" from the phrase of prohibited actions ("sells, lends, rents, leases, gives, advertises, publishes, exhibits, or otherwise disseminates"), and the First Amendment problem would be solved.

The trial court rejected the argument, because the statute would still prohibit advertising-like behavior, such as "exhibiting" or "publishing," as applied to legal uses of obscene materials.  But, the trial court said, there was another way to limit the reach of the statute and make it constitutional: The statute currently says you can defend yourself if the "dissemination" was for a legal purpose; the court, however, would read "dissemination" to mean "dissemination and advertising."  That way, figured the trial court, you could defend yourself against a charge of distribution of obscene material if your dissemination or your advertising was restricted to legal purposes.

Up it went on appeal, and once again, the Eleventh Circuit reversed.  Why?  Because, said the Eleventh Circuit, we already held in our previous opinion that the statue contains a "per se" ban on advertising.  That's over and done now.  It can't be revisited.  So the district court is automatically wrong.  The statute cannot be saved, and the whole thing has to be thrown out -- advertising, selling, lending, leasing, giving, and dissemination bans and all.

Among other things, this is particularly hilarious because the Eleventh Circuit so obviously wanted to invalidate the statute without engaging in the hard legal reasoning that would result.

First of all, its holding that the prior panel already decided the issue is spurious, at best.  The prior court simply did not address the issue whether the statute could be interpreted, or modified, in a way that would be consonant with the First Amendment.

But leaving that point aside, there's been a new development.  Since the Eleventh Circuit first decided the case in 2002, and its second decision today, the Supreme Court issued its opinion in the abortion case of Ayotte v. Planned Parenthood.

And what difference does that make, you ask?

Well, aside from harbinging the death of the right to choose, Ayotte takes a new -- nay, unique -- view of how to deal with a potentially overbroad statute.  Normally, you see, courts try to "save" overbroad and unconstitutional statutes by "severing" the unconstitutional bits.  So, if there's a word you can delete out and save the statute (like the word "advertising"), a court will likely do that.

Until Ayotte, that was pretty much all you could do.  A court could not dig in and start writing a whole new statute -- that would usurp legislative power.  But it could tinker around the edges by chopping bits of the statute off.  If there's nothing you could easily chop off, however, the court would usually have to invalidate the whole thing.

(Recently, an appellate court in New York reversed a trial court that had held that New York's marriage laws should be read to permit gay marriage.  Why?  Among other things, the trial court found that it was unconstitutional to deny gays the right to marry while allowing heterosexual marriages.  But rather than declare all marriage laws in New York unconstitutional -- thus making it illegal for anyone to marry -- the court read the New York marriage law to allow gay marriage.  But since there was no easy way to chop off a bit of the statute to accomplish this result, the trial court basically rewrote the statute, redefining words like "bride" and "groom" to be gender-neutral.  Which the appellate court nixed.)

In Ayotte, the plaintiffs argued that the New Hampshire abortion ban was unconstitutional because it did not contain a health exception.  And because there was nothing easy to chop off, the First Circuit agreed the entire statute had to be invalidated.  The Supreme Court reversed, however -- and in a severe break from precedent, held that the First Circuit should have tried to figure out a way to invalidate only the unconstitutional applications of the statute while leaving the rest intact.  Even though this would mean "rewriting" the statute, by creating a whole new exception that had not existed before.

Which brings us back to the Eleventh Circuit.  In 2002, when it held that Georgia's obscenity statute was unconstitutional, it did not have the benefit of Ayotte.  A statute would likely have to be invalidated if there was no easy piece to chop off. 

But then Ayotte happened.  And now it's arguably acceptable for a court to do what the trial court did here -- write a whole new word into the statute, in order to save it.

Because of the intervening Supreme Court decision, the Eleventh Circuit could have held that its prior precedent did not control.

And though I suppose it's possible that Georgia did not make such an argument, I don't doubt for a second that the Eleventh Circuit was aware of Ayotte.  But they ignored it.  Which is understandable, really, because some of the judges in the Eleventh Circuit live in Georgia. 

I'm sure they want their dildos.

(cross posted to Fantasy Life)

Comments

[squashed]

Sometimes I wonder how a body of laws can even exist at all without quickly invalidating each other unpon inspection.

[Scott Lemieux]

That's one limitation of the studies of gender and judgining I've read: no study of the effects on cases involving the criminalization of sex toys. ;)

[Eli]

You're reading Ayotte a lot more broadly than I did. I certainly didn't think it mandated an across-the-board requirement that all potentially constitutionally infringing statutes only be subject to as-applied challenges. Since the first amendment jurisprudence is relatively developed on the issue, I would have assumed that it wasn't really touched by Ayotte. After all, facial and as-applied challenges certainly coexisted across areas of law prior to Ayotte, right? I may be misunderstanding, though - this certainly isn't my area of expertise or anything like that. If anyone can explain

[Eli]

...that would be great. Sorry, mouse slipped.

[S. COTUS]

Eli is correct, but the remand in Ayotte requires a determination of whether the statute, itself was severable.

[Bob Koepp]

Somehow, I don't think that declaring all marriage laws unconstitutional would have the effect of making it illegal for anyone to marry. Wouldn't marriage just become an unregulated activity? Or are we living in a society where everything that is not explictly legalized is illegal?

[iocaste]

Eli - I agree I'm reading Ayotte broadly, but only because nothing in Ayotte limits its logic to abortion cases. It says, if there's an overbroad statute, the court should see if it can carve out an exception that would make it constitutional. Period. I'm sure we'll see that theory bubbling up through the courts in other cases.

[iocaste]

Bob - you're right. It would mean that there would be no legally recognized marriages in New York, which would also mean that all the legal benefits associated with marriage would be void. At least for any new people who wanted to get married.

[Bob Koepp]

I would be quite pleased if laws were changed so there were no legal benefits associated with marriage. Tying legal benefits to a choice of lifestyle seems to me to be blatantly discriminatory.

[iocaste]

Bob - that's so funny. Over at my own blog, I http://iocaste212.livejournal.com/166871.html>once posted about how "marriage" should still exist (in the sense of legal benefits) but should not be tied to sexual unions.

[Eli]

The law-nerd part of me actually found this aspect of Ayotte super interesting, regardless of the abortion context. The balance between facial and as-applied challenges seems like it can make a huge difference in how a legal system works, and, as far as I can tell, it's pretty piecemeal and unprincipled in the American system. I wonder how much leakage we will see from Ayotte.

[Bob Koepp]

iocaste - that's so funny -- as if there's some correlation between marriage and sexual union! Well, OK, maybe a negative correlation ;-)

[gordo]

Bob Koepp--

In some cases, legally recognized marriages are crucial. A lesbian friend of mine lives with her wife and daughter in Florida. The child's father is dead, so if anything happened to my friend, her daughter would be taken from the home and placed with her grandmother.

The grandmother is a drunk who makes it a practice to call my friend's employer and acquaintances to inform them that my friend is a lesbian child molester. She would get custody, because she is the only living relative, and Florida doesn't allow gay adoption.

Even if Florida did allow gay adoption, the custody battle would turn into a food fight, and would likely be decided primarily on the basis of the judge's tolerance for gays, or lack of it. All because of the lack of a legally recognized marriage.

[Bob Koepp]

Gordo - I think your heart is in the right place, but I think when you say marriage is crucial to protecting parental rights you buy into a fundamentally unjust social order. Surely the rights of gay parents (and human rights generally) don't have to be premised on any particular institutional arrangement. Think about it. Should gays (or anybody else) have to get married to secure their rights? How retro can you get?

[Eli]

Bob, how exactly are people going to avail themselves of these kinds of potentially rival rights if not within some "particular institutional arrangement?" If your point is just that we don't necessarily have to use the word "marriage" - well, no shit. But we're going to have some sort of regime to allocate family rights.