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COBB COUNTY, GA – In a decision issued late last month, the 11th Circuit Court of Appeals ruled that Georgia’s obscenity law unconstitutionally limits the free-speech rights of businesses to advertise.

The case This That and the Other Gift v. Cobb County, Ga., was heard by circuit judges Susan H. Black, Frank M. Hull and Jerome Farris. Some legal experts have noted that the ruling does not strike down Georgia’s entire obscenity law; just the portion that bans the advertising of sex toys, the practical effect of the decision is that Georgia’s state legislature must amend the existing obscenity law.

Georgia’s current obscenity statute includes a ban on the sale of sex toys, which was enacted in 1975. When This That and the Other, which is both a tobacco and adult novelty shop, acquired its business license in 1998, the county found out the store would be selling sex toys, but did not take action. Two years later, however, Cobb County officials contacted This That and the Other and demanded that the store stop selling sex toys.

At the time, things did not look good for the store, This That and the Other’s attorney, Cary S. Wiggins, told the Fulton County Daily. Wiggins said that when the shop contacted him in 2000, he asked them “Do you want the bad news or the horrible news?”

Wiggins noted that since 1977, there had been 24 published Georgia Supreme Court opinions upholding the state’s ban on sex toys. The ban has also been upheld by state and federal courts on the grounds that devices for sexual gratification are not protected expression under the First Amendment or the Georgia Constitution.

Numerous unsuccessful challenges had been presented, arguing that the law violates privacy rights, that the language is vague and overbroad, that the law constitutes a prior restraint on legal free speech, and that the law violated due process because it had not been uniformly enforced.

Wiggins, however, devised an innovative way to challenge the law, rooted in certain exceptions provided under the state’s sex toy ban.

Under Georgia’s obscenity law, academics and people with permission from a doctor or psychiatrist are allowed to purchase sexual devices. The ban on advertising sex toys, however, is absolute – meaning that purveyors of sex toys could not advertise even to those consumers able to purchase sex toys legally, making the ban overbroad.

Wiggins unsuccessfully sued Cobb County over the sex toy ban in the U.S. District Court for the Northern District of Georgia, but the 11th Circuit agreed with his argument, ruling in 2002 that the law’s related ban on advertising such sexual devices violated the First Amendment’s protection of commercial speech.

The 11th Circuit sent the case back down to the district court, to see if the language banning advertising could be severed from the law. The lower court ruled that the language could not be removed from the law, but upheld the obscenity law on the grounds that its language could be interpreted to allow advertising to legal sex toy users.

Wiggins appealed to the 11th Circuit again and last month the appellate court overturned the district court’s decision in a unanimous opinion. In its ruling, the appellate court chastised the lower court for revisiting the First Amendment question at all.

“This case illustrates that revisiting of statutes should be left to the Georgia Legislature,” the 11th Circuit wrote in the opinion, hitting the lower court with a mild rebuke for its determination that the obscenity law could be saved through a little creative interpretation, rather than by legislative alterations.

While there was some disagreement as to whether the 11th Circuit’s ruling had effectively undermined Georgia’s entire obscenity law or just the prohibition on advertising sexual devices, state lawmakers decided not to wait for that determination.

On February 21st, the attorney general informed the governor, the lieutenant governor, and leaders of the House and Senate of the decision’s impact, and told them they might want to draft a new statute.

State Senator John J. Wiles, a Republican from Marietta, quickly introduced new legislation. Wiles’ bill, Senate Bill 261, appears to be stuck in the Senate Judiciary Committee, however.
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By Q. Boyer, taken from Please Register or Login to view links