Dildoes Not Covered by Emanations

A federal court has, alas, upheld a Mississippi law that bars the vending of rubber dongs and other similar fun gadgets. I'm not sure about the grounds for the decision—the appeals court essentially issued a one-paragraph decision saying that the district court got it right, and I haven't been able to track down that opinion. But it is puzzling to me how this squares with Griswold v. Connecticut, the (ahem) seminal right-to-privacy case that struck down a ban on contraception as invading a private space protected by "penumbras, formed by emanations" from (among others) the First, Fourth, and Ninth Amendments. I'm genuinely curious: If there's a right to sexual privacy strong enough that the state can't prevent you from buying condoms, or from sleeping with someone of the same sex, why doesn't the same right guarantee your freedom to pick up a Rabbit at Toys in Babeland? And, equally important, if you use an Internet-enabled vibrator on a partner living across the country, does that somehow count as interstate commerce? (HT: Boing Boing)

Comments

[CodeMonkeySteve]

And, equally important, if you use an Internet-enabled vibrator on a partner living across the country, does that somehow count as interstate commerce?

You forgot to provide the link.

[NoStar]

I wonder how this affects the legality of masturbating using a magazine with John Stossel on the cover?

[Warren]

If there's a right to sexual privacy strong enough that the state can't prevent you from buying condoms, or from sleeping with someone of the same sex, why doesn't the same right guarantee your freedom to pick up a Rabbit at Toys in Babeland? And, equally important, if you use an Internet-enabled vibrator on a partner living across the country, does that somehow count as interstate commerce?

All good questions Julian. But the raise an even more fundamental question that renders them moot: What the hell did the inbred citizens of Mississippi think they were doing when they elected the chicken-fuckers that passed this dildoe legislation?

[Academy of Headlines]

Brilliant headline.

"You shall be rewarded with a cake." -Benjamin Jabituya

[Schlomo]

Does this law prohibit the Carpet Humper from purchasing a rich, succulent, arousing Stainmaster berber?

[Warren]

I still think there should be a rule requiring links with pictures on every sexually oriented post. Since Julian pussied out, I'll do the deed:

rabit

[Warren]

and another
internet sex

[oncogenesis]

Joking aside, this is a real blow to freedom in the US.

[oncogenesis]

Seriously, though. I don't understand how this decision (and countless others like it) square with the popular idea of "freedom". Was the US ever the Land of the Free? Or was I just brainwashed particularly well by public schooling?

[Matt]

If you read Mr. Justice Kennedy's National Middle Schoolers Liberty Essay Contest runner-up prose to introduce the Lawrence decision, you get the idea the thrust (sorry) of the Griswold-Eisenstadt-Carey-Lawrence lineage is that the decision to have sex and with whom is a self-determinative exercise. Your answer is probably that the government can proscribe how, in some circumstances, but never whether or with whom. Not that that makes much sense, but is probably where you get both anti-contraceptive and anti-sodomy laws being unconstitutional but anti-dildo laws being ok.

I, personally, am totally comfortable with federal judges deciding the rules for when sex is and isn't ok. (Right, yes, I know the alternatives, thanks, don't get up)

[Wintermute]

Newspaper article makes it sound like an abstention case, so it's not necessarily over.

http://en.wikipedia.org/wiki/Abstention_doctrine

[Robert]

Maybe they could say that sexual intercourse and the sale of devices related thereto is "fundamental", i.e. important, but that masturbation and the sale of appurtenant devices is frivolous and therefore not "fundamental".

[Anonopotomous]

Everything is interstate commerce. Here's how they managed the twisted logic:

A Hinds County judge ruled in 2003 that state law does not extend the right to privacy to the commercial sale of sexual devices.

[dead_elvis]

I think we'll see this in the 2006 "Top ten groan inducing H&R headlines"

And thank you, CodeMonkeySteve. That clearly is what the internet was invented for. I unfortunately chose the wrong millenia (back in the stone-age 1990s) to have long-distance girlfriends.

[Confused]

Do emanations spawn prenumbras or is it the other way around?

Does anyone have a complete list of these things posted anywhere?

[happyjuggler0]

I think this is a victory for the state's rights to be mindblowingly stupid. Why the hell would anyone give a crap if someone else was using a dildo at home? Even for Mississippi this seems damn stupid.

[John M. Joy]

Everything is interstate commerce. Here's how they managed the twisted logic: [...]

And here's the cite from the decision in Griswold (emphasis mine):

[...]
The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship.
[...]

Thus, had the Connecticut law prohibited manufacture and/or sale, rather than use, ...

JMJ

P.S. I love Stewart's wonderfully terse dissenting opinion:

Since 1879 Connecticut has had on its books a law which forbids the use of contraceptives by anyone. I think this is an uncommonly silly law. As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case. As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual's moral, ethical, and religious beliefs. As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual's choice can be meaningfully made. But we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do.

[Mr. Nice Guy]

I think it's obvious. The men in Mississippi are losing the war against plastic dicks. They just can't compete with them.

Weak. Pathetic. Y'all have no game. Go back to boning farm animals.

[gaijin]

What is a dildo? Would a plastic prosthetic hand be considered a dildo if applied to your own (or others) private parts in just such a way? Is plastic the defining characteristic or is it the use to which something is put?

[Jersey McJones]

This is what Federalism gets you, folks. If the country continues down this road toward "states rights," we are going to see a significant erosion of our privacy and happiness. Contrary to popular myth, Devolution will only increase poor decision-making and corruption. The accountability of a strong central authority is greater, more focused, and more direct than the accountability of smaller and more numerous entities.

You reap what you sow, America, and you're reaping stupidity.

JMJ

[gaijin]

The accountability of a strong central authority is greater..

By what measure is this true? The more local the issue, the more attention it can get. Seems to me it's only the people outside of Mississippi who are complaining. If you lived in Mississippi, well, then you can rally fewer people to kick stupidity out of office...or move. When WShington passes stupid laws, good luck getting that undone.

[Jersey McJones]

Gaijin,

Bullshit. What do you notice more, the sun above you or the trillion stars around you. OF COURSE a cetral authority is more accountable because it has the most attention paid it.

As for "just move," that's a silly, almost fatalistic, notion. What we have here is local and state gov'ts run amok. It's time we get rid of that scumbag piece of shit, Reagan, and his sleazy hypocritical besmirchment of the federal gov't and get back to rights and laws over states and morons.

JMJ

[ChrisO]

Bullshit. What do you notice more, the sun above you or the trillion stars around you. OF COURSE a cetral authority is more accountable because it has the most attention paid it.

I fail to see any "of course" about that. In fact, I think that the opposite conclusion is one of the few things that most political philosophers likely agree upon. Think about it this way--the larger the governed population, the more work (time, money etc.) it takes to get a majority of that population to vote a certain way. How is that "more accountable?" Moreover, I would say that the distance between governed and government in a centralized system decreases the flow of information, which is necessary for accountability to exist.

I would guess that the 'dildo law' is quite representative of the views of a majority of Mississippi residents. And those are the only folks to whom that silly law applies.

[Jersey McJones]

Look Chris - who gets more people to the polls to vote - the president, the congress, state elections, or local elections - it goes EXACTLY in that order.

Anyone who doesn't see this as fact is living in cognative dissonance.

JMJ

[ChrisO]

Ok, Jersey, I assume you can tell me off the top of your head every single thing that every single bureaucrat at the U.S. Dept. of Labor did last week. They're all "highly accountable" to us, right?

[John M. Joy]

Look Chris - who gets more people to the polls to vote - the president, the congress, state elections, or local elections - it goes EXACTLY in that order.

It depends on the issue, actually. A contentious local bond issue in a small town may bring out damn near everyone. Same could be said for a hotly contested local race.

As I've commented more than once here, the nature of the political machine is such that, as a rule, success in it depends to a great degree on one's willingness to conform to its status quo. Maverick candidates with positions differing significantly from that of the "party bosses" tend not to get nominations. The higher up the office is, the more layers of this "protect" it from challenge.

A useful exercise for you, Jersey: try to schedule an appointment to discuss a political issue with:

• your selectman/councilman/...
• your state rep
• your congressman
• your senator
• Mr. Bush

and report back on how easy it was to set up with each.

(The other) JMJ

[Mr. Nice Guy]

Our country was founded on the principle of cooperation among relatively independent states. "Federal" oversight is supposed to be clearly defined and limited.

People who crave absolute central power are blindly ignoring the possibility of central power turning against the citizens. Like that has never happend before.

[Jersey McJones]

Chris, the President is responsible for what goes on at the Dept of Labor (well, maybe not this president...). Your idealism is endearing, Chris, but the fact is that most people don't even know who their selectman/councilman/state rep/congressman/senator even are - and that proves my point right there.

Ideology is all well and fine, but when reality smacks it down then you have to leave it there.

JMJ

[Count d'Ildeau]

"The men in Mississippi are losing the war against plastic dicks. They just can't compete with them"

And have you seen *women* in MS? Really, for many, plastic dick is the only chance to get fucked.

(I speak as a Hinds County resident... *gag* Screw it, I'm outta here.)

[John M. Joy]

Your idealism is endearing, Chris, but the fact is that most people don't even know who their selectman/councilman/state rep/congressman/senator even are - and that proves my point right there.

Um, I think you were addressing me, actually.

Most folks try to stay as blissfully unaware of matters political as possible; when a matter of concern to them arises, though, they manage to thumb their phonebook's Blue Pages pretty damn quick.

So you've proven nothing.

Let me ask: when is the last time you have communicated with a politician at any level of government? What was the issue? What form of communication (face-to-face, phone call, letter, email, ...)? Did you receive a reply? What was its nature (face-to-face answer, form letter with signature stamp, ...)?

JMJ

[Mr. Nice Guy]

I'm a proud north-easterner, but from my travels it seems to me as one goes south, the people get friendlier and the women are easier to look at.

But I haven't been out in the sticks.

[R C Dean]

OF COURSE a cetral authority is more accountable because it has the most attention paid it.

Quite the opposite, in fact. There is no real accountability in the absence of power, and the power disparity between citizens and government grows as the government grows less local and more centralized.

[Jersey McJones]

John, I have been in touch via emails with people at all levels - on up to four senators - because I write a lot. But I see what you are doing. Accountability is more than just face-to-face interaction. Accountability is also visibility - basically, the president is face to face with the entirety of the American people - the ultimate accountability. Local governments get away with far more corruption and such because people aren't watching them and because they are pulling the local strings of authority.

JMJ

[Jersey McJones]

RCD, the power is at the polls. At the local level, that is far more suseptable to malfeasance than at the federal level.

JMJ

[John M. Joy]

Accountability is also visibility - basically, the president is face to face with the entirety of the American people - the ultimate accountability.

But he isn't. Especially not this President, who is notorious for his insularity. (And this administration is arguably the most secretive, at least of any in recent times.) If the best means you have to "petition for redress of grievances" is to get together, once every four years, with a hundred fifty million of your closest friends to throw the bastard out, you have no effective means - not only theoretically, but as a matter of realpolitik.

R C Dean is right in that, without effective checks and balances, ultimately the central power would be able to answer any challenge with, "But what you gonna do about it?!" And the answer would be, well, nothing. An all-powerful central government can, by edict, simply ignore even its own laws. Not that that's happened in the US recently (smirk).

While I'll certainly agree that local politics isn't exactly clean (hell, I sat for years on a local ethics board, and the stuff that came before us was just the very tip of the iceberg), the bigger the political entity, the more opportunity for shenanigans. You may think matters at the federal level are more open and "visible" and, thus, more accountable. Methinks you should reconsider.

JMJ

[Jersey McJones]

John, no one wants the ridiculous all-or-nothing "all-powerful central government". The point is that some things should be federal and some things not. That's all. Basic rights - like doing or buying what you want as long as it doesn't harm anyone - should not be the pervue of local democratic whims. Period. As for corruption, the central gov't is far more exposed and observed than the thousands of local institutions. Period. There's really no arguing this.

JMJ

[John M. Joy]

As for corruption, the central gov't is far more exposed and observed than the thousands of local institutions. Period. There's really no arguing this.

There's plenty of "arguing this." The federal government is a HUUUUUUUGE beast, with plenty of unobservable little corners and cubbies. Contrary to what you may believe, its principal work does not take place in the White House press office. Most of it doesn't even take place in Washington, or by elected officials!

And as for centralism over federalism: what assurance do you have that this strong central authority you propose would be a force for "good" (i.e. that "or buying what you want as long as it doesn't harm anyone")? History has demonstrated that the opposite tends to be the case.

JMJ

[Julian Sanchez]

"Bullshit. What do you notice more, the sun above you or the trillion stars around you. OF COURSE a cetral authority is more accountable because it has the most attention paid it."

That's an odd choice of analogy; we notice the sun more because it's closer to us.

[Kwix]

Julian,
Any luck finding the text of the original ruling? My searches led to "pay for document" dead ends. Not that I am opposed to paying for transparency but I just don't have the cash on hand.

[Jersey McJones]

I love it - there's another JMJ out there! What are the odds!

Anyway, John, I am not advocating any such thing. Just that in some cases the federales should make decisions and in some cases local or state. The case sited in this thread is a perfect example of states rights gone too far.

Julian,

Please tell me you're being funny. Please.

The point is that the president, for example, is a national fixture that we all see and know wheras most people wouldn't know their own mayor's name if you tortured it out of them.

JMJ

[oncogenesis]

I would guess that the 'dildo law' is quite representative of the views of a majority of Mississippi residents. And those are the only folks to whom that silly law applies.

Tyranny of the majority.

[Kwix]

Jersey,
It wasn't the accountable 'central authority' in Washington that installed speed cameras around my town a few years back. No, it was the local government and when it occured the local citizenry rose up and forced the local government to remove the cameras by ballot initiative. In contrast the Federal government has a 'secret' wiretapping program that violates both Constitutional Law (warrantless searches) and Congressional Law (FISA). The accountable 'central authority' has responded by saying in essence "I'm the President, we are at war, tough shit and deal with it". Now that's what I call accountability!

Let's take a more regionally visible approach. California, long the denzien of Hippies and the West Coast counter culture. What if, and believe me this is hypothetical, what if the citizens of California decide to legalize marijuana for medical use? Federal law prohibits it because the Feds don't exclusively have the intrests of the Californian resident in mind but rather the interests of racist, power-hungry people like Rep. Souder from Indiana and John P. Walters of Michigan. As of that point, the Federal government isn't supporting "Basic rights - like doing or buying what you want as long as it doesn't harm anyone" whereas the "local democratic whims" are. Who is accountable then?

[Kwix]

Tyranny of the majority
Agreed, but at least it is only in one state not the entire nation or the entire world. At least people in Mississppi have the option of driving to either Florida or Louisiana to buy dildos.

[bubba]

I apologize for being too lazy to read every word of this thread, but I do see a lot of confusion between "vending" and "using."

It's perfectly reasonable for a city to regulate the content and location of stores within its jurisdiction. This is called "zoning." There are no privacy issues with zoning.

If I want to purchase a King Dong, I'll order it online, or drive across the county line. I don't want them sold in my neighborhood.

There's a time and place for everything. It's called "college."

[ChrisO]

Agreed, but at least it is only in one state not the entire nation or the entire world. At least people in Mississppi have the option of driving to either Florida or Louisiana to buy dildos.

This brings to mind the scenario of undercover Mississippi cops posted in the parking lots of sex shops in Panama City and Mobile taking down Miss. license plate numbers...

That's what the N.Y. cops do to stop untaxed cigarettes from being sold in the Empire State.

[ChrisO]

Tyranny of the majority.

Free the Dildo!!

[John M. Joy]

This brings to mind the scenario of undercover Mississippi cops posted in the parking lots of sex shops in Panama City and Mobile taking down Miss. license plate numbers...

Connecticut used to pull the same sort of stunt, parking troopers in the New Hampshire state liquor store lots. That is, until New Hampshire made it clear to them that, as non-customers, they were loitering and/or trespassing, and, if the practice continued, would be arrested.

JMJ

[joe]

To: the Editors

From: joe

Date: March 16, 2006

Re: Headline

EEEEEEEWWWWWWW!

Heh. I guess you're just not using them right.

[Kwix]

Connecticut used to pull the same sort of stunt, parking troopers in the New Hampshire state liquor store lots. That is, until New Hampshire made it clear to them that, as non-customers, they were loitering and/or trespassing, and, if the practice continued, would be arrested.

Obviously this is the domain of the Federal power to regulate interstate commerce, no? BATF agents on every state line checking to make sure that there is no contraband. Really, why stop at the Mexico-US border?

[ChrisO]

Obviously this is the domain of the Federal power to regulate interstate commerce, no? BATF agents on every state line checking to make sure that there is no contraband. Really, why stop at the Mexico-US border?

Undoubtedly, in the case of the alcohol arrests. In the N.Y. cigarette thingy, though, not so. The perps were arrested for the crime of selling untaxed cigarettes to New Yorkers from within New York. Staking out Virginia and North Carolina cigarette discounters was just a convenient way of tracking them down from a few central locations.