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It's obscene! (And now, it could be legal)

Advertising sex toys just might be OK

For years, it's been illegal in Georgia to sell, lend, rent or otherwise distribute obscene material such as violent pornographic movies, vibrators and penis pumps.

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But a recent federal appeals court ruling has lawyers wondering if that's about to change.

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On Feb. 15, the U.S. Court of Appeals for the 11th Circuit ruled that a portion of Georgia's obscenity law is unconstitutional — a decision that, according to the Georgia ACLU, should nullify the entire obscenity law.

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The court ruled in favor of This, That & the Other, a Smyrna head shop, finding that a state law making it illegal to advertise sex toys was too broad and unconstitutionally limited free speech.

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This, That & the Other originally brought its suit against Cobb County in 2000, after Cobb officials tried to shut down the shop by invoking the state's seldom-used ban on selling vibrators and dildos.

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Georgia's obscenity law bans "any device designed or marketed as useful primarily for the stimulation of human genital organs." There are two exceptions: people who have a prescription from their doctors, and teachers or students in "a course of study related to such material."

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The appeals court ruled that the ban on advertising sex toys was too broad because it didn't take into account advertising that could benefit teachers and patients who are legal customers.

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Lawyers for This, That & the Other are interpreting the ruling to say that because the portion of the obscenity law that bans advertising was ruled unconstitutional — and because one portion of a law cannot be separated from the rest of the law — the entire obscenity law must be construed as unconstitutional.

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Georgia ACLU lawyer Gerry Weber, who has been closely following the case, agrees.

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"It basically means that this particular statute cannot be used against anybody in the state of Georgia anymore," Weber contends.

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If he's right, that would mean shops legally could begin selling sex toys to the general public. What's more, gruesome pornography that's deemed obscene, such as necrophilia or gang rape, would be legal, too. According to the statute, something is obscene if "it predominantly appeals to ... a shameful or morbid interest in nudity, sex, or excretion" or if "the material depicts or describes, in a patently offensive way, sexual conduct."

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While First Amendment enthusiasts are quick to proclaim victory, some legal experts think the obscenity statute might still have a pulse.

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Georgia State professor Lynn Hogue says he believes the ruling only overturns the ban on advertising sex toys.

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"The court struck down that portion of the statute that deals with advertising," Hogue says. "Even if it turns out that the entire statute was called into question by the litigation, the obviously limited holding by the court would not invalidate the whole statute."

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Russell Willard, of the state attorney general's office, says the state is reviewing the appeals court's decision to determine its impact on the obscenity law.

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Cobb County has the option to appeal the ruling.



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