Yorko v. State , 1985 Tex. Crim. App. LEXIS 1395 ( 1985 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Appellant pled not guilty to a misdemeanor information charging possession with intent to sell an obscene device, namely a dildo. The trial court found appellant guilty and assessed three days in jail and a fine of $750.00. The Fourteenth Court of Appeals (Houston) affirmed the conviction, holding that Sections 43.21(a)(7) and 43.-23(c)(1) of the Penal Code do not violate the right of privacy guaranteed by the United States Constitution or deprive citizens of substantive due process under the Texas Constitution. Yorko v. State, 681 S.W.2d 633 (Tex.App.1984). We granted appellant’s petition for discretionary review to examine the holdings.

The statutes at issue read as follows:

“43.21. Definitions

“ ‘Obscene device’ means a device including a dildo or artificial vagina, designed or marketed as useful primarily for the stimulation of human genital organs.” “43.23. Obscenity

“(c) A person commits an offense if, knowing its content and character, he: “(1) promotes¹ or possesses with intent to promote any ... obscene device; ...”

Appellant contends that these provisions, “on their face and as applied in the circumstances of this case, are unconstitutional under the due process clause of the Fourteenth Amendment to the Constitution of the United States because they violate the individual right of privacy.”

We are unable to review the constitutionality of the statutes “as applied in the circumstances of this case” because the record contains no evidence of what those circumstances were. The record contains neither a statement of facts nor a written stipulation of evidence. Nor does appellant’s brief analyze the application of the statutes to the facts of the case. The state of the record thus permits review of the facial constitutionality only.

Appellant takes care to deny that his challenge rests on the ground of vagueness or overbreadth. He does not dispute the holding of Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977), appeal dismissed for want of a substantial federal question, sub. nom. Sewell v. Georgia, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978), which rejected a vagueness and overbreadth challenge to a Georgia statute virtually the same as the statute at issue here. Nor does appellant claim that the statutes deny him equal protection of the law. .

Appellant claims, rather, that the statutes violate the fundamental right of privacy announced in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) and elaborated in subsequent cases, notably Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

In Roe v. Wade, supra, the Court wrote: “The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 [11 S.Ct. 1000, 1001, 35 L.Ed. 734] (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 [89 S.Ct. 1243, 1247, 22 L.Ed.2d 542] (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 [88 S.Ct. 1868, 1872-1873, 20 L.Ed.2d 889] (1968), Katz v. United States, 389 U.S. 347, 350 [88 S.Ct. 507, 510, 19 L.Ed.2d 576] (1967), Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746] (1886), see Olmstead v. United States, 277 U.S. 438, 478 [48 S.Ct. 564, 572, 72 L.Ed. 944] (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S. at 484-485 [85 S.Ct. at 1681-1682]; in the Ninth Amendment, id., at 486 [85 S.Ct. at 1682] (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 [43 S.Ct. 625, 626, 67 L.Ed. 1042] (1923). These decision make it clear that only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 [58 S.Ct. 149, 152, 82 L.Ed. 288] (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 [87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010] (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 [62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655] (1942); contraception, Eisenstadt v. Baird, 405 U.S. [438] at 453-454 [92 S.Ct. [1029] at 1038-1039] [31 L.Ed.2d 349]; id., at 460, 463-465 [92 S.Ct. at 1041, 1043-1044] (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 [64 S.Ct. 438, 442, 88 L.Ed. 645] (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 [45 S.Ct. 571, 573, 69 L.Ed. 1070] (1925), Meyer v. Nebraska, supra.

“This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy....”

410 U.S. at 152-53, 93 S.Ct. at 726-27. Appellant argues that:

“Clearly one significant element of the constitutional right of privacy is the individual’s interest in making certain kinds of important decision.” Whalen v. Roe, 429 U.S. 589, 599-600 [, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64, 73 (1977)].

“... [I]t is clear that the personal decisions recognized as within the right of privacy must meet at least two criteria. First, such decisions must be essentially personal in nature involving matters of primary concern either to the individual involved or to his immediate family. See, e.g., Eisenstadt v. Baird, [405 U.S. 438, at 453, 92 S.Ct. at 1038] (decision must be one ‘fundamentally affecting a person’). Secondly, the decision must profoundly affect the individual’s personal life and have little, if any, impact upon others or society in general.” [citation omitted]. Appellant concludes that:

“Under the foregoing principles, it is clear beyond argument that the use, and by necessary implication the commercial distribution, of certain types of ‘sexual devices’ are constitutionally protected activities.”

Thus the question is: Does the due process clause of the Fourteenth Amendment guarantee a citizen the right to stimulate his, her or another’s genitals with an object designed or marketed as useful primarily for that purpose? Put another way, is there a right to stimulate human genital organs with an object designed or marketed as useful primarily for that purpose, such that the right is a “fundamental” one “implicit in the concept of ordered liberty”? Roe v. Wade, supra, quoting Palko v. Connecticut.

The statute does not criminalize the use of obscene devices, or the mere possession of such devices without the intent to promote them. Nevertheless, appellant argues that by inhibiting the citizen’s ability to acquire obscene devices, the statute unconstitutionally burdens the citizen’s fundamental right to possess and use them. Appellant relies on the line of cases holding that the right to decide whether to bear or beget a child is a fundamental right under the Fourteenth Amendment. The line began with the dissent in Poe v. Ullman, 367 U.S. 457, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting) and continued through Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, to Carey v. Population Services International, 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).

In Carey the Court announced the full import of the earlier cases in the line, as follows:

“Appellants argue that this Court has not accorded a ‘right of access to contraceptives’ the status of a fundamental aspect of personal liberty. They emphasize that Griswold v. Connecticut, struck down a state prohibition of the use of contraceptives, and so had no occasion to discuss laws ‘regulating their manufacture of sale.’ 381 U.S. at 485, 85 S.Ct. at 1682. Eisenstadt v. Baird, was decided under the Equal Protection Clause, holding that ‘whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike.’ 405 U.S., at 453, 92 S.Ct., at 1038. Thus appellants argue that neither case should be treated as reflecting upon the State’s power to limit or prohibit distribution of contraceptives to any persons, married or unmarried. But see id., at 463-464, 92 S.Ct., at 1043-1044 (White, J., concurring in result).

“The fatal fallacy in this argument is that it overlooks the underlying premise of those decisions that the Constitution protects ‘the right of the individual ... to be free from unwarranted governmental intrusion into ... the decision whether to bear or beget a child.’ Id., at 453, 92 S.Ct., at 1038. Griswold did state that by ‘forbidding the use of contraceptives rather than regulating their manufacture or sale,’ the Connecticut statute there had a ‘maximum destructive impact’ on privacy rights. 381 U.S., at 485, 85 S.Ct., at 1682. This intrusion into ‘the sacred precincts of marital bedrooms’ made that statute particularly ‘repulsive.’ Id., at 485-486, 85 S.Ct. at 1682. But subsequent decisions have made clear that the constitutional protection of individual autonomy in matters of childbearing is not dependent on that element. Eisenstadt v. Baird, holding that the protection is not limited to married couples, characterized the protected right as the ‘decision whether to bear or beget a child.’ 405 U.S., at 453, 92 S.Ct. at 1038 (emphasis added). Similarly, Roe v. Wade, held that the Constitution protects ‘a woman’s decision whether or not to terminate her pregnancy.’ 410 U.S., at 153, 93 S.Ct., at 727 (emphasis added). See also Whalen v. Roe, supra, 429 U.S., at 599-600, 97 S.Ct., at 876-877, and n. 26. These decisions put Griswold in proper perspective. Griswold may no longer be read as holding only that a State may not prohibit a married couple’s use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State.

“Restrictions on the distribution of contraceptives clearly burden the freedom to make such decision....”

Appellant analogizes from the contraception cases as follows:

“... [A]ny attempt by the State to criminalize the use or sale of condoms, diaphragms or similar birth control aids would clearly violate the constitutional right of privacy recognized in Griswold, [supra] and Carey, [supra]. Unless there is some exotic and heretofore unar-ticulated distinction to be drawn between sexual devices that stimulate and gratify and sexual devices that do not, the same principle of freedom of choice operable in Griswold and Carey with respect to a matter of peculiarly private concern likewise invalidates any attempt by the State to control an individual’s private modes of sexual stimulation or gratification.”

A similar argument — that a right to use or possess implies a right of access or acquisition — was repeatedly urged on the Supreme Court after its decision in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). In that case police, authorized by warrant, searched Stanley’s home for evidence of bookmaking. They found instead an obscene film. Georgia prosecuted Stanley for “knowingly hav[ing] possession of ... obscene matter.” The Supreme Court invalidated the conviction, holding' that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” The holding rests on both the First Amendment right of free speech and also “the [fundamental] right to be free, except in very' limited circumstances, from unwanted governmental intrusions into one’s privacy.” Stanley v. Georgia, supra.

A theory developed that, because Stanley established the right to possess obscene material in the privacy of the home, there must be a correlative right to receive it, transport it, and distribute it. " The Court has consistently rejected this reasoning. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971); United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971).

These cases held that, despite Stanley v. Georgia, the government may constitutionally proscribe the mailing (Reidel, supra), importation (12 200-Ft. Reels, supra; Thirty-Seven Photographs, supra), and transportation on interstate carrier (Orito, supra) of obscene material. The holdings in Reidel, Thirty-Seven Photographs, and Orito “negate the idea that some zone of constitutionally protected privacy follows [obscene] material when it is moved outside the home area protected by Stanley. ” Orito, supra; accord, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973).

Moreover, the states may constitutionally proscribe the sale or commercial exhibition of obscene material. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); Paris Adult Theatre I v. Slaton, supra.

Thus the Court held in Stanley that there is a fundamental privacy right to possession of obscene material in the home which the State may not infringe.² In subsequent cases, however, the Court made it clear that this homebound privacy right does not carry with it a right of access to obscene material. By contrast, the Court ultimately held in Carey that the right to decide whether to bear or beget a child may not be unnecessarily burdened by restrictions on access to contraceptives.

The question in the instant case then comes down to this: Are obscene devices like obscene material—which the State may deny access to—or like contraceptives—which citizens must be free to obtain?

The answer lies in the difference between the uses of obscene material and contraceptives. Contraceptives are used to implement the decision not to beget a child. Because the right to make this decision is protected by the Constitution, access to the means to implement it may not be unnecessarily burdened by the State.

Obscene material, by contrast, is used for sexual stimulation and gratification. “Obscene material is material which deals with sex in a manner appealing to prurient interest ... I.e., material having a tendency to excite lustful thoughts.” Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); accord, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

Yet “In an unbroken series of cases extending over a long stretch of [the Supreme] Court’s history, it has been accepted as a postulate that ‘the primary requirements of decency may be enforced against obscene publications.’ ” Paris Adult Theatre I v. Slaton, supra, quoting Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1975), quoting Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.2d 1357 (1931). Accordingly, legislatures may act on this postulate and restrain obscenity to protect “the social interest in order and morality. ” Roth v. United States, supra, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (emphasis in Roth); see also, Paris Adult Theatre I v. Slaton, supra.

Appellant maintains that “[obscene] devices are designed, purchased and used consensually only for the purpose of sexual stimulation and gratification.” Thus obscene material and obscene devices are used for the same purpose. Appellant does not claim that obscene devices serve, like contraceptives, to implement the constitutionally protected decision not to beget a child.

The Penal Code sets out its objectives as follows:

“The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiedly and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate.”

Section 1.02, supra (emphasis added). The Penal Code’s prohibitions against obscene devices are found in Title 9. “Offenses Against Public Order and Decency.”

In the face of the Constitution’s explicit protection of speech by the First Amendment, the states and the federal government may suppress traffic in obscene expression. We hold it is also appropriate for the State to act to protect the “social interest in order and morality” (Roth, supra) or “decency” (Paris Adult Theatre I, supra) by restraining traffic in non-communicative objects designed or marketed as useful primarily for the stimulation of human genital organs.

Moreover, we do not discern in the language of the Constitution or in the principles of the Supreme Court cases discussed above any fundamental right to use obscene devices. If there is such a right, however, we find that the exercise of that right is protected by the rule of Stanley v. Georgia, supra. By analogy with the cases limiting Stanley and upholding the denial of access to obscene material outside the home, we hold that the State may criminalize promotion of and possession with intent to promote obscene devices.

Thus we distinguish between contraceptives and obscene devices. This distinction strikes us as no more “exotic,” in appellant’s words, than the distinction between protected and obscene expression. See United States v. Gentile, 211 F.Supp. 383 (D.Md.1962) (distinguishing dildoes from condoms in federal obscenity prosecution).

Appellant’s second contention invokes Art. I, Sec. 19 of the Texas Constitution, which provides as follows:

“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

Appellant claims that the prohibition of obscene devices arbitrarily deprives him of a substantive economic right, the right to use and dispose of his property as he pleases, in violation of Art. I, Sec. 19.

Appellant claims:

“There is simply no justification, hypothetical or otherwise, for the legislation ... If the possession or use of the enumerated devices to stimulate or gratify sexual desire is not a crime (and is, indeed, a constitutionally protected right), by what muddled logic can the transfer of the device to the ultimate consumer be deemed a criminal offense? There is simply no articulable interest advanced by these laws other than to ineffectually assuage some purported community outrage directed against an intrinsically in-nocous [sic] piece of latex.” [emphasis by appellant].

Appellant concludes that the statutes exceed the State’s police power.

This Court’s many decisions affirming obscenity convictions implicitly recognize and uphold the State’s authority to ban obscenity under the police power. See also Paris Adult Theatre I v. Slaton, supra: “[The Supreme] Court has consistently held that obscene material is not protected by the First Amendment as a limitation on the state police power by virtue of the Fourteenth Amendment.”

We hold that the rationale justifying the State’s exercise of the police power against obscene expression — that is, the protection of the social interest in order and morality — also justifies the State in criminalizing the promotion of objects designed or marketed as useful primarily for the stimulation of human genital organs. The statute does not violate Art. I, Sec. 19 of the Texas Constitution.

The judgment of the Court of Appeals is affirmed.

1 . "Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same. Sec. 43.21(a)(5), supra.

2 . But see Whalen v. Roe, supra, 429 U.S. at 609, 97 S.Ct. at 881, restricting Stanley solely to its First Amendment rationale (Stewart, J., concurring).