Jul 15, 2017

Texas Obscenity Law, or Not

The Obscene Device Law is a Texas statute dealing with obscenity. In 1973, the Texas Legislature passed Section 43.21 of the Texas Penal Code which, in part, prohibited the sale or promotion of "Obscene device[s] mean[ing] a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs."

In an appeal from the United States District Court for the Western District of Texas, a three-judge panel of the 5th Circuit Court of Appeals overturned the statute on February 12, 2008, by a vote of 2–1, holding that "the statute has provisions that violate the Fourteenth Amendment of the U.S. Constitution".

On November 4, 2008, U.S. District Judge Lee Yeakel released a two-page document dated October 29, 2008, in which he stated that the Texas Attorney General's Office notified him that they would not file a writ of certiorari with the Supreme Court.

The following month, on November 13, Yeakel filed a "joint status report" that noted the parties had come to an agreement. "Texas Penal Code §§ 43.23, to the extent that it applies to “obscene devices” as defined in Texas Penal Code § 43.21(a)(7), is declared to be facially unconstitutional and unenforceable throughout the State of Texas," the report read.

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