The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A new Texas statute allows people with concealed gun carry licenses to carry guns onto university campuses. Some people are trying to protest this in an unusual way:
Starting on the first day of Long Session classes on August 24, 2016, we are strapping gigantic swinging dildos to our backpacks in protest of campus carry.
(See also this article by The Post's Yanan Wang.) Their rationale:
The State of Texas has decided that it is not at all obnoxious to allow deadly concealed weapons in classrooms, however it DOES have strict rules about free sexual expression, to protect your innocence. You would receive a citation for taking a DILDO to class before you would get in trouble for taking a gun to class. Heaven forbid the penis.
From UT Rules:
"Subchapter 13-200. Prohibited Expression
Sec. 13-201. Obscenity
No person or organization will distribute or display on the campus any writing or visual image, or engage in any public performance, that is obscene. A writing, image, or performance is "obscene" if it is obscene as defined in Texas Penal Code, Section 43.21 or successor provisions, and is within the constitutional definition of obscenity as set forth in decisions of the United States Supreme Court."
ANYBODY can participate in solidarity: alum, non-UT students, people outside of Texas. Come one dildo, come all dildos.
"You're carrying a gun to class? Yeah well I'm carrying a HUGE DILDO."
Just about as effective at protecting us from sociopathic shooters, but much safer for recreational play.
Well then! A few quick thoughts:
1. I doubt that this will be particularly rhetorically effective. I can see that the display of the dildoes is supposed to be a gesture of disdain—the common trick of tarring your opponent as a slut, or a masturbator, or otherwise somehow sexually obsessed or inadequate. To quote the organizer:
[The dildo] spotlights the masturbatory nature of the power which people derive from gun ownership, and the self aggrandizing "I'm one of the good ones, I'll protect you" arguments we're so often expected to simply trust.
But I rather doubt that people will really buy the "masturbatory nature" argument. I also doubt that people will even understand how "I'm one of the good ones, I'll protect you" relates to dildoes.
At the same time, dildoes are sexual, but they come across as mildly kinky, especially for college-age students. If people associate guns with dildoes, that might actually make guns seem more fun.
And, more importantly, I take it a common reaction to someone carrying a dildo would be, "Well, hey, suit yourself." At this point, I think most people—especially on university campuses—have reached a "do what you like" attitude towards vibrators.
And once the dildo gets the viewers into a libertarian mood, the obvious extension is, "Hey, you bring a dildo, I bring my legally licensed gun, we all do what we want to do." To be sure, guns are indeed more dangerous than dildoes, as well as more useful (at least in certain ways). But to the extent the protest is aimed at analogizing dildoes and guns, the message easily leads to analogously laissez-faire treatment for both. "You're carrying a huge dildo to class? Well I'm carrying a gun."
2. I also doubt that the University of Texas policy actually bans dildoes. Even if a dildo is a "visual image," to be obscene under "decisions of the United States Supreme Court," something must (among other things) appeal to the "shameful or morbid" interest in sex and be "patently offensive" under contemporary community standards. I doubt that a dildo, even one deliberately made to look like an anatomically correct(ish) penis, would qualify these days.
Now the Texas Penal Code (heh, heh, he said "Penal Code," heh, heh) does prohibit both the distribution of obscene materials and the distribution of "obscene devices"; and it defines "obscene device" as "including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs." (Quite explicit on this point, the Texas Penal Code is.) That definition applies without regard to whether the device appeals to the prurient interest or is patently offensive. But the University of Texas policy does not incorporate that definition. Rather, it expressly incorporates the Supreme Court's test for obscene material, and the Texas Penal Code test for what is "obscene" (not the test for what is an "obscene device"), which tracks the Supreme Court's definition.
So you can protest against the University of Texas's ban on obscenity, and against the University of Texas's allowing guns (at least in the hands of people with concealed carry licenses). But I don't think you can protest against the University of Texas's ban on dildoes, because I don't think there is one.
3. But this gets us to the broader question—what about the broader Texas criminal prohibition of dildoes? Because there is one, or at least there was one until the Fifth Circuit struck it down in 2008. More specifically, it was essentially a ban on having too many dildoes. First, Texas law banned distributing "obscene devices," or possessing them with intent to distribute them.
And, second, Texas law presumed that anyone who "possesses six or more obscene devices" is "presumed to possess them with intent to promote the same." That's right, no one-gun-a-month law—instead, a five-dildoes-at-a-time law! "She's not just a user, your honor. She's a dealer." Too much marijuana, too many dildoes, you're going to jail, miss.
If you think I think there's something absurd about the whole thing (setting aside the actual substantive questions related to gun carry and universities), from carrying sex toys to campus, to banning possession of six of them, to the very name "dildo," you are right. The Oxford English Dictionary, by the way, tells me "dildo" is "A word of obscure origin, used in the refrains of ballads"—I did not know that!—and also appears in Shakespeare in a slightly mysterious context. The world is an absurd place, and getting absurder by the day.