Thank you for sharing!

Your article was successfully shared with the contacts you provided.
If Williams v. Attorney General had been just about female orgasm, most women would have known how to deal with the disappointment: Ooo . . . Oh . . . Ooo . . . Oh . . . Oh, god . . . Ooo . . . Oh, god . . . Oh . . . Oh . . . Oh . . . Oh, yeah, right there! . . . Yes, Yes, Yes . . . Oh . . . Oh . . . Yes, Yes, Yes . . . Oh . . . Yes, Yes, Yes, Yes, Yes, Yes . . . . Unfortunately, Williams — the decision by the U.S. Court of Appeals for the 11th Circuit that made it possible for Alabama cops to bust housewives for selling sex toys to each other at Tupperware-style parties — wasn’t quite as accomplished a simulation. Indeed, Williams showed federal judges barely capable of faking a meaningful analysis of what — and, as importantly, whose — private acts merit constitutional protection. Of course, even the most poorly simulated sex turns heads once it’s caught on film. While the circuit’s shamming of constitutional satisfaction may not yet be as famous as the diner scene of “When Harry Met Sally,” the judicial acting-out in Williams has become a movie, with comparably hilarious results. When San Francisco filmmaker Pat Ferrero heard that a long-time colleague, historian Rachel Maines, had become the plaintiff’s principal expert witness, Ferrero got a little heated up on her own. She put together a coalition of three other women fascinated by historical silence — Emiko Omori, Wendy Slick, and Academy Award nominee Pat Jackson — and took cameras to the red states. The result of their investigation, “The Technology of Orgasm,” a deceptively named and pointedly cheeky examination of the issues surrounding Williams and its progeny, debuted this month. The film warrants an X rating for the very good reason that what the 11th Circuit is shown doing ought to offend everybody. HAPPINESS, ALABAMA STYLE Williams began in 1998, when Alabama legislators — stirred by rampant national indecency and possibly unnerved by the “you can do what with your what?!” illumination of the Starr Report — amended the state’s Anti-Obscenity Enforcement Act to criminalize the distribution of “any device marketed as useful primarily for the stimulation of human genital organs.” A cigar clearly had to be just a cigar. Legislators pushed through a statute that punished first offenders with big fines and hard labor and that made any second violation a felony. The targets of the statute — small-business women running upscale sex-toy boutiques in malls, civil servants using “passion party” income to pay bills, and the moms in search of a cheery outlook who were the clients of both — foresaw the inevitable. Weeks after the law took effect, they raised a due process claim to enjoin Alabama from enforcing the law. Ultimately, Williams ran longer and produced more plot developments than “Sex and the City.” The women won in the District Court, but encountered reversal and remand on appeal. Sent back to Alabama for more fact finding on a fundamental-rights issue, the sex-toys proponents won again — only to lose once more before another appellate panel. Along the way, the Supreme Court nixed the criminalization of consensual same-sex sodomy in Lawrence v. Texas (2003). Somewhat unexpectedly, the Williams trial record produced some genuinely piston-pumping facts. Plaintiff Sherri Williams, operating two “Pleasures” stores in Huntsville and Decatur, Ala., sold her 14,960 customers approximately 22,440 sex devices in a calendar year. The “Saucy Lady” parties hosted by another plaintiff, B.J. Bailey, distributed 10,500 romance-stimulating wares a year throughout central Alabama. Clearly, Disneyland was no longer the happiest place on earth. Inevitably, the Williams saga produced a spinoff. In February, the filmmakers flew to Fort Worth, Texas, to document State v. Webb, the prosecution of a former schoolteacher who was hawking muffin-buffing devices in the Lone Star State. Albeit the product of a statute aimed at obscene speech rather than sex toys, the criminalizing of Joanne Webb’s admonitions not to use the plug-in model of Throbbing Bullet Buddy in the bathtub emerged from the same perspective that gave rise to Williams. That perspective is the view from the missionary position. A CLIMACTIC RIGHT While law has submitted to its harshest scrutiny those statutes that restrict the incidents of reproductive sex — finding that contraception and abortion are incidents of a fundamental right of privacy — the Supreme Court has yet to find that Americans are fundamentally endowed with a right of sexual privacy. Like so much of the language related to lust, the wordplay is a tease. By making privacy a fundamental right that may include — but at this point never has included — consensual adult sex for the sake of sex, courts have quite likely left most Americans believing that government can’t monitor our having our doorbells rung. But government can walk in unannounced, and it does. In fact, pretty much all the state has to do to justify the intrusion is to show up in court wearing a suit. Even the courts’ most progressive recent steps haven’t given many Americans who have sex for fun much relief. It’s a sad fact that John Geddes Lawrence isn’t in jail only because, on one day — possibly the morning after a particularly compelling episode of “Will & Grace” — the Supreme Court found that the Houston police probably had better things to worry about than how tax-paying homosexuals greet the dawn. The problem is that the Supreme Court won’t just come out and say that Americans who don’t reach orgasm by vaginal sex have a right not to be jailed for trying to decongest the weasel as best they can. For all the Williams majority’s fascination with bestiality and adult incest, saying “OK, we’re all adults here,” would not permit acts that are also abusive or nonconsensual. Rather, those whom the law still consigns to quiet desperation include all homosexuals and most women, the latter having been biologically wired so that their buzzers are at the gate rather than in the foyer. WHAT ABIGAIL DID The reason the justices won’t simply say that everyone gets to hear bells seems to be their lingering doubt that sex — that is, an activity engaged in solely to wax one’s end table, and not to cheer up the spouse or propagate the species — is part of America’s “history and tradition.” Can we prove, the justices continually ask us, that the nation’s notion of individual freedom — with extra points currently awarded to the predispositions of the Framers — includes getting off? The question suggests that the noblest pursuit of contemporary constitutional scholars might be in locating the remnants of the inflatable woman that got George Washington through Valley Forge. The point that should force any legitimate statutory interpreter into a soothing session with the Escalating Elephant — requiring not two, but four, AA batteries — is that we don’t know what people do if they can’t talk about it. And we don’t know what preheated the ovens of the founding mothers if we suppress the research that illuminates it. Williams did exactly that. Maines’ testimony brought to court the dusty inventory of some of America’s most interesting museums. What Maines proved was that when the first American women had the opportunity to talk about tickling the kitty, they did: Abigail Adams visited the health resorts where genital massage was a heralded — and enthusiastically endorsed — treatment offered women patrons. Nineteenth-century women’s magazines advertised mechanical, and then electrical, vibrators for the relief of stress leading to female hysteria. Maines’ most telling historical evidence may have come from the Sears Roebuck catalog, a publication that culture experts agree did more than any other one thing to shape the values of the traditional American family. Pitched to a nation in thrall to emerging technology and pressed by hard lives to make full use of it, Sears’ 1916 issue featured a “women’s stimulator,” which came with attachments rendering it also suitable for churning butter, cooling the air, or meeting the cook’s grinder needs. No celebrants of heartland resourcefulness, the Williams majority didn’t want to talk about it. CAN WE TALK? Silencing talk of how we find our bliss is, after all, the ultimate cold shower. We don’t know about alternatives — who’s using the Pulsing Orbiter or, whoa, that we can upgrade to a Thumb Pleaser III — unless we can find out about them. And compare models. And price-check on eBay. So we limit ourselves to the same roles and go forth performing the familiar functions. Maines and her chroniclers think they know why, in the 1920s, the curtain came down on nonvaginal getting-it-up. The years of silence make it hard to tell if they’re right. What we do know is that the stifling of sex talk — of how and where and when many of us ride the unicycle — is still restraining us from giving it a spin. Law continues to affect us with its willed ignorance of how our pickles come out of the jar. “What is it with this war you’ve declared on the clitorises?” Joanne Webb’s attorney, BeAnn Sizemore, bantered with the law enforcer prosecuting Webb’s case. “Uh, we didn’t arrest anyone named Clitoris,” came the slow response. “We arrested Joanne Webb.” When the movie “Kinsey” surfaced last year in trailers with a tagline challenging viewers to find out exactly what our history and traditions really are, conservative groups condemned the film for the information it offered. Now Ferrero, Omori, Slick, and Jackson are issuing the same invitation. Come on. Let’s talk about sex.
Terry Diggs teaches courses on law and film at Hastings College of the Law and Golden Gate University School of Law. This commentary first appeared in The Recorder , an ALM publication based in San Francisco.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.