From The Clarion Ledger Fifth Circuit upholds dismissal of sex toy law challenge
The Associated Press
A federal appeals court has upheld the dismissal of lawsuit filed by a Rankin County adult store, which challenged the constitutionality of a Mississippi law that bans the sale of sex toys.
The lawsuit was brought by Romantic Adventures, owned by HCH Corp., in federal court in 2004 after two of its employees were charged in violation of the law and its sexual devices were seized. The misdemeanor charges were filed in 2002 in Rankin County Justice Court. Proceedings in the justice court were postponed while the federal case continued.
HCH Corp. contended the state law violated freedom speech and privacy rights and other constitutional issues.
In February 2005, U.S. District Judge William H. Barbour Jr. dismissed the lawsuit without prejudice, meaning the suit could be refiled.
Barbour said the two employees were charged on April 16, 2004. He said the federal lawsuit was filed May 7, 2004.
Barbour said the U.S. Supreme Court in a 1971 case ruled that federal courts cannot hear a case if a state criminal prosecution is pending when the federal lawsuit is filed. Barbour said even though there was no activity in the Rankin County case, it is pending and the federal court could not consider any issues until the local case is decided.
On Monday, the 5th U.S. Circuit Court of Appeals upheld Barbour’s decision. The court said Barbour did not err in his ruling. Monday’s ruling was issued by a panel of three 5th Circuit judges: Grady Jolly, Thomas M. Reavley and Harold DeMoss.
At least one challenge to the sex toys law has been rejected in the Mississippi courts.
In March 2004, the Mississippi Supreme Court upheld the constitutionality of the law and ruled the advertising of the sexual devices is not protected by the right to free speech. Such advertisements, the court said, promote an illegal transaction.