PHE, Inc., et al. v. Miss., et al.
| Docket Number: | 2003-CA-00456-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 03-18-2004 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Constitutionality of statute - Section 97-29-105 - Prohibition of sexual devices - Right to privacy - Section 97-29-107(1)(b) - Right to free speech Judge(s) Concurring: Pittman, C.J., Smith, P.J., Cobb, Easley and Carlson, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves and Dickinson, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - CONSTITUTIONALITY OF STATUTE |
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| Trial Court: |
Date of Trial Judgment: 03-07-2003 Appealed from: Hinds County Chancery Court Judge: William H. Singletary Disposition: Granted summary judgment to the State. Case Number: G-2001-1923 |
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| Note: | Nature of Case: Constitutionality of Statute | |
| Party Name: | Attorney Name: | |||
| Appellant: | PHE, Inc. d/b/a Adam & Eve, Inc., ZJ Gifts, LLC d/b/a Christal's, Jim Hillegas, Mike Miller and Jane Doe |
ROBERT B. McDUFF
DANIEL MACH
JULIE M. CARPENTER |
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| Appellee: | State of Mississippi and Jim Hood, in His Official Capacity as the Attorney General of the State of Mississippi | HAROLD EDWARD PIZZETTA, III |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Constitutionality of statute - Section 97-29-105 - Prohibition of sexual devices - Right to privacy - Section 97-29-107(1)(b) - Right to free speech |
| Summary of the Facts: | PDE, Inc. d/b/a Adam & Eve, Inc., and ZJ Gifts, LLC d/b/a Christal's, sell the type of sexual device which is prohibited by section 97-29-105. Jane Doe, Jim Hillegas and Mike Miller are Mississippi residents who wish to buy the sexual devices. These parties all sued the State of Mississippi and its Attorney General in Hinds County Chancery Court seeking a declaratory judgment that section 97-29-105 violates Article 3, sections 13, 14 and 32 of the Mississippi Constitution. The State filed a motion for summary judgment which the court granted. The plaintiffs appeal. |
| Summary of Opinion Analysis: | Issue 1: Right to privacy The user plaintiffs argue that the statute violates their right to be free from unwarranted governmental intrusion into their private and legal sexual practices. While a right to privacy exists for citizens which entitles citizens to be left alone, there is no independent fundamental right of access to purchase sexual devices. Access to sexual devices cannot be compare to access to contraceptives, since society's interest in protecting the right to control conception is of greater magnitude than the interest in protecting the right to purchase sexual devices. People who are sexually dysfunctional (presumably those people who cannot achieve sexual enjoyment and fulfillment without a sexual device) should be treated by a physician or a psychologist. Section 97-29-107(1)(b) expressly provides that physicians and psychologists may prescribe sexual devices for their patients, and the patients may purchase the sexual devices from the physicians and psychologists. Issue 2: Right to free speech The vendor plaintiffs allege that the statute unduly burdens their rights to advertise truthfully their products. While certain sexually expressive items are entitled to some quantum of protection under the First Amendment, the items sold by Adam & Eve and Christal's are at best "symbolic speech," falling within the outer ambit of the protection. Under the four-part content-neutral test used for analyzing symbolic speech, government regulation is sufficiently justified if it is within the constitutional power of the government; it furthers an important or substantial governmental interest; the governmental interest is unrelated to the suppression of free expression; and the incidental restriction on alleged freedom of speech is no greater than is essential to the furtherance of that interest. Here, the statute furthers important or substantial governmental interests. The plaintiffs do not contend that the purpose of the Legislature in enacting the statute was to suppress free speech. The prohibition on the sale and/or distribution constitutes only an incidental restriction on the vendor plaintiffs' alleged right to freedom of speech which is no greater than is essential to the furtherance of the State's governmental interests. The advertising done by the vendor plaintiffs is a paradigm of purely commercial speech. Only commercial speech which concerns lawful activity and which is not misleading is protected by the First Amendment. Since section 97-29-105 makes the sale of sexual devices illegal, advertising the sexual devices is not protected by the right to free speech. |
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