REVISED MARCH 10, 2008 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit F I L E D February 12, 2008 No. 06-51067 Charles R. Fulbruge III Clerk RELIABLE CONSULTANTS, INC., doing business as Dreamer’s and Le Rouge Boutique Plaintiff - Appellant PHE, INC., doing business as Adam and Eve, Inc. Intervenor - Plaintiff - Appellant v. RONNIE EARLE, in his official capacity only, Travis County District Attorney Defendant - Appellee STATE OF TEXAS Intervenor - Defendant - Appellee Appeals from the United States District Court for the Western District of Texas Before REAVLEY, BARKSDALE, and PRADO, Circuit Judges. REAVLEY, Circuit Judge: 06-51067 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. I. The Statute The forerunner of Texas’s obscenity statute was enacted in 1973 and had the modest goal of prohibiting “obscene material.”1 Six years later, the legislature redefined “obscene material” so that it would track the Supreme Court’s definition of obscenity detailed in Miller v. California.2 That same year, the legislature also expanded the scope of the statute so that it would prohibit the “promotion” and “wholesale promotion” of “obscene devices,” which includes selling, giving, lending, distributing, or advertising for them.3 The legislature chose to broadly define “obscene device,” not using the Miller test, but as any device “designed or marketed as useful primarily for the stimulation of human genital organs.”4 In 1985, the Texas Court of Criminal Appeals held that the statute did not violate an individual’s right to privacy, concluding that there was no constitutional right to “stimulate . another’s genitals with an object designed or marketed as useful primarily for that purpose.”5 Later, in 1993, a narrow affirmative defense was added to protect those who promoted “obscene devices” for “a bona fide medical, psychiatric, judicial, legislative, or law 1 Tex. Penal Code Ann. §§ 43.21–.23 (Vernon 1973). 2 Tex. Penal Code Ann. § 43.21 (Vernon 1979) (defining “obscene material” in relation to the three-part “obscenity” test set forth in Miller v. California, 413 U.S. 15, 23–25, 93 S. Ct. 2607, 2614–16 (1973)). 3 Id. §§ 43.21(a)(5), (6). 4 Id. § 43.21(a)(7). 5 Yorko v. State, 690 S.W.2d 260, 263 (Tex. Crim. App. 1985). 2 06-51067 enforcement purpose.”6 Violating the statute can result in punishment of up to two years in jail.7 In essence, the statute criminalizes the selling, advertising, giving, or lending of a device designed or marketed for sexual stimulation unless the defendant can prove that the device was sold, advertised, given, or lent for a statutorily-approved purpose. The statute, however, does not prohibit the use or possession of sexual devices for any purpose. Besides Texas, only three states have a similar obscene-devices statute: Mississippi,8 Alabama,9 and Virginia.10 The Mississippi supreme court has upheld its state’s statute against First and Fourteenth Amendment challenges.11 Neither the Alabama nor Virginia supreme court has entertained a challenge to its state’s statute, but the Eleventh Circuit has rejected a Fourteenth Amendment challenge to Alabama’s statute.12 On the other hand, while the legislatures of Louisiana, Kansas, and Colorado had enacted obscene-devices statutes, each of their respective state supreme courts struck down its law on 6 Tex. Penal Code Ann. § 43.23(g) (Vernon 1993). 7 Tex. Penal Code Ann. §§ 12.35(a), 43.23(a)–(d). The full text of the statute is provided in the appendix. All subsequent citations to the statute are to the current version. 8 Miss. Code Ann. § 97-29-105. 9 Ala. Code § 13A-12-200.2. 10 Va. Code Ann. § 18.2-373. 11 PHE, Inc. v. State, 877 So. 2d 1244, 1248–50 (Miss. 2004). 12 Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007), cert. denied, Williams v. King, 128 S. Ct. 77 (2007). The Williams case had previously been before the Eleventh Circuit, where the court held that the obscene-device ban did not burden a fundamental right. See Williams v. Attorney General, 378 F.3d 1232, 1233 (11th Cir. 2004) (remanding the case to the district court). 3 06-51067 Fourteenth Amendment grounds.13 Likewise, while the Georgia legislature had passed an obscene-device statute, the Eleventh Circuit recently struck it down.14 II. This Proceeding Reliable Consultants, Inc. d/b/a Dreamer’s and Le Rouge Boutique operates four retail stores in Texas that carry a stock of sexual devices. The sexual devices are for off-premise, private use. PHE, Inc. d/b/a Adam & Eve, Inc. is also engaged in the retail distribution of sexual devices. It operates no public facilities in Texas, but rather sells sexual devices by internet and mail, and it distributes sexual devices ordered in Texas by mail and common carrier. Reliable and PHE desire to increase their sale of, and advertising for, sexual devices in Texas, and they fear prosecution under the statute if they do so. Reliable filed this declaratory action to challenge the constitutionality and enjoin the enforcement of the statutory provisions criminalizing the promotion of sexual devices. The complaint alleged that these provisions violate the substantive liberty rights protected by the Fourteenth Amendment and the commercial speech rights protected by the First Amendment. Later, PHE intervened as a plaintiff and sought similar relief. Reliable and PHE contend that many people in Texas, both married and unmarried, use sexual devices as an aspect of their sexual experiences. For some couples in which one partner may be physically unable to engage in intercourse, or in which a contagious disease, such as HIV, precludes intercourse, these devices may be one of the only ways to engage in a safe, sexual 13 See State v. Brenan, 772 So. 2d 64, 72–76 (La. 2000) (holding that the state’s obscene- devices statute fails rational-basis review under the Fourteenth Amendment of the U.S. Constitution); State v. Hughes, 792 P.2d 1023, 1031–32 (Kan. 1990) (holding that the state’s obscene-devices statute unconstitutionally burdens an individual’s Fourteenth Amendment right to privacy); People ex. rel. Tooley v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 369–70 (Colo. 1985) (same). 14 This That and the Other Gift and Tobacco, Inc. v. Cobb County, 439 F.3d 1275, 1278 (11th Cir. 2006). 4 06-51067 relationship. Others use sexual devices to treat a variety of therapeutic needs, such as erectile dysfunction. Courts scrutinizing sexual-device bans in other states have explained that an “extensive review of the medical necessity for sexual devices” shows that “it is common for trained experts in the field of human sexual behavior to use sexual aids in the treatment of their male and female patients’ sexual problems.”15 Still other individuals use sexual devices for non-therapeutic personal reasons, such as a desire to refrain from premarital intercourse.16 The district court held, inter alia, that the statute does not violate the Fourteenth Amendment because there is no constitutionally protected right to publicly promote obscene devices. Plaintiffs appeal the judgment granting the motion to dismiss. We review the district court’s dismissal for failure to state a claim de novo.17 The “court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.”18 To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”19 15 Brenan, 772 So. 2d at 75. Similarly, in Hughes, the Kansas supreme court noted that recommending the use of sexual devices is “common in the treatment of anorgasmic women,” “who may be particularly susceptible to pelvic inflammatory diseases, psychological problems, and difficulty in marital relationships.” 792 P.2d at 1025. 16 A recent commentator points out that sexual devices, such as vibrators, were originally designed for medical purposes and they continue to be prescribed as such. Danielle J. Lindemann, Pathology Full Circle: A History of Anti-Vibrator Legislation in the United States, 15 COLUM. J. GENDER & L. 326, 327–30, 336–41 (2006). In the early to mid-twentieth century their use for sexual pleasure became well known, and in the 1960s advertising for such devices began to emphasize their sexual benefits. Id. at 329–30. 17 Kaltenbach v. Richards, 464 F.3d 524, 526 (5th Cir. 2006). 18 Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal citations and quotation marks omitted). 19 Bell Atl. Corp. v. Twombly, --- U.S. ----, 127 S. Ct. 1955, 1974 (2007). 5 06-51067 With those standards in mind, we hold that the statute violates the Fourteenth Amendment. III. The Fourteenth Amendment The Plaintiffs’ claim is predicated upon the individual right under the Fourteenth Amendment to engage in private intimate conduct in the home without government intrusion. Because the asserted governmental interests for the law do not meet the applicable constitutional standard announced in Lawrence v. Texas,20 the statute cannot be constitutionally enforced. The State argues that Plaintiffs, who distribute sexual devices for profit, cannot assert the individual rights of their customers. This argument fails under the Supreme Court precedent holding that (1) bans on commercial transactions involving a product can unconstitutionally burden individual substantive due process rights and (2) lawsuits making this claim may be brought by providers of the product.