Via Pandagon

[roadrunnertwice]

I hear a mighty buzzing noise, and it sounds like... freedom.

EDIT: Also, via Daring Fireball: The most aggressive cinderblock ad EVER.

EDIT: I've changed my mind. This is definitely a low-mid grade flu rather than a cold. At least I'm getting over it fairly easy this year? I still feel crappy, but I'm not totally miserable.

EDIT: Ft. Lewis is doing nighttime shelling exercises tonight. It's kind of like a thunderstorm, except more irritating.

Comments

[nightswatch.livejournal.com]

God bless craigslist.

[jonsonite.livejournal.com]

I consider myself pro-freedom and also pro-sextoy. But I don't really buy this one...is the theory that the government can't ban anything related to sex now? What is it about sex toys that makes banning them a violation of privacy rights? The only distinction I can think of between sex toys and other products (the government can generally prohibit sale of whatever it damn well pleases, as long as it isn't birth control) is that the sex toys are sexual aids. That doesn't seem like a good enough reason to exempt them from legislative perview...

[gyladia.livejournal.com]

Hmm, I think the idea is sort of backwards from that. Yes, the government could exert control and ban whatever products it wanted, but why? Just because they can? Because sex is wrong and toys are icky? Why would banning sex toys be beneficial? Who are they harming and who are they helping? Banning them for the sake of being able to doesn't make sense either, and without a reason to think them dangerous to part of the public makes them more harmless than guns.
Maybe I'm not understanding your viewpoint.

[jonsonite.livejournal.com]

State governments have plenary power--that is they have the power to do anything they want to do as long as it doesn't violate the federal constitution or their state constitution. Here the federal constitution is being read in a way that prevents states from banning sale of a commercial product. This is highly unusual--I think the only other commercial products that the constitution protects are speech-related products, birth control and guns. I'm just wondering what it is about sex toys that gives them the same constitutional protections? Both free speech and guns have explicit amendments to protect them, and birth control allows family planning, and the "right to privacy" was intended to protect the family from government interference.

Generally the constitution doesn't care when state governments ban most any type of commercial good, so why does it care in this case? Why are sex toys an exception to the rule?

[roadrunnertwice]

Well, I'm looking at this:

The state also argued in a brief that Texas has legitimate "morality based" reasons for the laws, which include "discouraging prurient interests in autonomous sex and the pursuit of sexual gratification unrelated to procreation."

...and I'm thinking, wasn't the gist behind Lawrence that the state, in fact, has no such thing?

This sex toy ban _explicitly_ exists to police private sexual expression, which I understand to be constitutionally protected from state policing. You're giving credence to the state's commercial vs private argument, right? I don't have a very firm grip on that legal briar, but here's how I understand it: The state's entire reasoning for the ban is that it wants to prevent non-hetero/non-binary/non-procreative sex acts, and Lawrence says that these acts are not things the state is allowed to prevent. If the state had some reason for the ban that didn't stem from an intention to suppress constitutionally protected behavior, maybe it could make it stand? And if you're right that states can ban whatever they want to for whatever reason (your clarification to gyladia just rolled in a few minutes ago), maybe they could make the argument that they're banning sex toys based on pure whim, although I have never in my life heard of such a thing.

But let's turn it around for a better view: Say a state were to say that while you have a right to bear arms, you're not allowed to sell them, whether person-to-person, through the mail, or in a store. Would that hold up? (That's not rhetorical; I really have no clue.) Or turn it around again: Say a state, citing a serious public health concern, were to ban the sale of all sex toys containing toxic materials that have been previously banned from children's toys?* I can't see any way you could use Lawrence to bat that one down, can you?

As best as I can tell, the court is reading this ban as an unconstitutional attempt to police private sexual morality, and is brushing off as irrelevant the fact that it's a supply-side attack rather than a demand-side one. As far as the legal standing of that ruling, I'm clueless.


_____
* Just as a sidenote, I am 100% in favor of this. Currently, the materials one can make a dildo out of are completely unregulated, and a lot of them are made with the kinds of softened plastics that the government has decided should not go in children's mouths. I can't imagine they're any better for adults when they're in contact with sensitive mucus membranes, and I don't think there are generally labels informing people that their new toy is made out of poison.

[jonsonite.livejournal.com]

The moral of the story here is to never say why you're making a law.

Your argument is good, and I don't have a very good response to it except to say that sex toys are much more peripheral to sex than guns are to...guns. Banning sale of sex toys doesn't prevent sexual relationships between anyone, and though it might make an individual's favorite form of sex more difficult, it seems like this decision creates a constitutional safe-zone for anything that relates to sex. No other such constitutional safe-zone exists for anything but free speech.

I guess I'd have to know what other kinds of laws this new right would strike down. Surely the state can ban dangerous sex toys, but can they make aesthetic decisions? Can they ban "realistic" sex toys? They might not have a good reason, but does banning realistic sex toys diminish their functionality to the extent that it's an end-run around Lawrence?

Sorry if any of this doesn't make sense. It's time for bed.

[froborr.livejournal.com]

Fortunately, thanks to the fact that laws are made by legislatures rather than authoritarian fiat, it's virtually impossible to make a law without saying why you're making it. The arguments used in the legislature are public record, after all.

And I disagree with your stance on state plenary power. States cannot ban anything they want on a whim; the right to free expression necessarily means that every act must be legal *unless* the state can show a compelling interest in banning it. Thus any law must have an established rationale, which can be challenged in court.

If somebody went into court challenging a law, and the representives of the State defended the law by saying "Eh, we felt like banning succotash," the law would be struck down immediately.

[jonsonite.livejournal.com]

I think you're confusing free expression with everything else. In the realm of free expression, states generally have to have a good reason for what they're doing--that's why porn was legal in Texas. But for non-expressive conduct (and absent some evidence to the contrary, sex toys aren't expressive), the government generally is only subject to rational basis review--the legislation has to be rationally related to a legitimate government interest. Essentially if there isn't animus involved, the court will defer to the legislature. Try this on for size: Texas doesn't want children exposed to obscene material such as sex toys. That's a legitimate state interest. Banning the sale of sex toys is rationally related to that--if you ban them, they're less likely to make their way near children. So it sounds like, absent this "right to privacy" argument, the ban would be constitutional.

[froborr.livejournal.com]

They still can't pass a law without a legitimate government interest, which is what you seemed to be advocating above -- that state legislatures can make whatever law they feel like, on a whim. The point here is that the courts have ruled that encouraging a particular sexual more and favoring procreative over non-procreative sex acts are *not* legitimate government interests.

Of course, I'd argue that every act is, in fact, a possible form of expression and that therefore the burden is always on the state to demonstrate that a law both supports a compelling interest and does so in the least restrictive manner possible, but the courts have generally not agreed.

[jonsonite.livejournal.com]

From an anarchist perspective, it'd be great to have the first amendment gobble the rest of the constitution. But I don't think anybody wants that but me. Are minimum wage laws really narrowly tailored to achieve a compelling government interest? It'd be a hard sell. Strict scrutiny is generally seen as "strict in theory, fatal in fact". I think recognizing all conduct as expression would result in a government that couldn't constitutionally do much of anything.

[froborr.livejournal.com]

Oh, I definitely want that. And in the centuries it would take for the first amendment to eat all other law, we'd doubtless have grown out of this stupid capitalist phase and into who-knows-what. Whatever it is, in this hypothetical future where the U.S. somehow survives both environmental catastrophe and the natural tendency of any human group to become an authoritarian hierarchy, it would be much more compatible with democracy and we therefore won't need minimum wage laws in Fantasyland.