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Steve Contorno
By Steve Contorno February 9, 2015
Amy Sherman
By Amy Sherman February 9, 2015

Alcee Hastings’ Texas dildo claim doesn't hold up

U.S. Rep. Alcee Hastings, D-Fla., messed with Texas when he bashed the state during a congressional hearing on Republican efforts to repeal Obamacare.

At a Feb. 2 House Rules Committee hearing, lawmakers were discussing Texas’ decision not to participate in state health care exchanges under the Affordable Care Act. At one point, Hastings said, "I don't know about in your state, which I think is a crazy state to begin with, and I mean that just as I said it."

U.S. Rep. Michael Burgess, a Texas Republican, decried Hastings’ comment as "defamatory."

"I wouldn’t live there for all the tea in China, and that’s how I feel," Hastings said. Hastings refused to apologize, vowing that Burgess would have to "wait until hell freezes over" to get an apology. (The spat later drew national attention when The Daily Show with Jon Stewart parodied the "Southern Slam.")

Then, on Feb. 5, CNN posted an article quoting Hastings, and the fur flew again.

"One of their cities has a law that says that women can only have six dildos, and the certain size of things. And if that ain't crazy, I don't know what is," Hastings said.

In this article, we will fact-check Hastings' claim that a Texas city has a law about dildos and their sizes. We contacted a spokeswoman for Hastings but did not get a reply.

Texas law struck down

In the 1970s, Texas banned the promotion of "obscene devices," defined as items "designed or marketed as useful primarily for the stimulation of human genital organs." Such devices include, but are not limited to, "a dildo or artificial vagina."

Part of the statute said, "A person who possesses six or more obscene devices or identical or similar obscene articles is presumed to possess them with intent to promote the same."

Being presumed to promote sex toys is not necessarily the same as barring people from owning six or more of these devices. It seems clear the goal of the statute was to ban the sale of these devices, while Hastings’ claim suggested that Texas cops would go after individuals who owned a lot of dildos.

In 1985, the Texas Court of Criminal Appeals held that the statute did not violate an individual's right to privacy, concluding that there was no constitutional right to "stimulate another's genitals with an object designed or marketed as useful primarily for that purpose." Violating the law carried a punishment of up to two years in jail.

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But in 2004, stores that wanted to sell such devices sued to overturn the law, and in 2008 a three-judge panel of the U.S. District Court of Appeals’ Fifth Circuit struck down the Texas law, concluding that it violated the 14th Amendment to privacy.

"Whatever one might think or believe about the use of these devices, government interference with their personal and private use violates the Constitution," the court ruled, noting that Mississippi, Virginia and Alabama had similar statutes at the time. Courts have struck down nearly identical laws in Louisiana, Kansas, Colorado and Georgia.

The court relied on another famous Texas case, Lawrence v. Texas, in which the U.S. Supreme Court ruled that the state’s anti-sodomy law was unconstitutional.

After the ruling, then-Attorney General (and now governor) Greg Abbott asked for another hearing by the full appeals court. But the request was denied, and that court informed Abbott that he would have to appeal to the U.S. Supreme Court, which he decided not to do.

The Austin American-Statesman reported at the time that the law was rarely enforced, though in 2003 a Texas woman was arrested for selling erotic toys at a Tupperware-type party. The charges were later dropped.

Jennifer Kinsley, one of the lawyers for the plaintiffs, is now a law professor at Northern Kentucky University. She told PolitiFact that she wasn’t aware of any cities that had adopted obscene devices legislation.

"In fact, I think those types of laws at the municipal level would be pre-empted by the state statute, which as you found has been declared unconstitutional," she said. "I do know that retailers throughout Texas sell more than six sexual devices now."

We should note a separate case stemming from the 2004 sale of a vibrator by a store in Corpus Christi, Texas. In July 2008, a state appeals court affirmed a lower-court ruling that upheld a guilty verdict in a case involving the state dildo ban as well as a municipal ordinance prohibiting the operation of a sexually oriented business without a permit.

Legal experts say that technically, federal rulings are not directly binding on state courts, but plaintiffs would be assured of relief if they pursued their case in federal court.

Our ruling

Hastings said that one Texas city "has a law that says that women can only have six dildos."

There's a law, now invalid, along those lines — though it was intended to prevent the sale of such devices, not the ownership of them. In addition, it was a statewide law, not a city law, and more importantly, it was struck down by a federal appeals court more than six years ago. Hastings’ office did not provide supporting evidence for an existing city law that sets a dildo limit.

There’s some obscurity because the law is still on the books. But experts told us that, as a practical matter, the law has no teeth, and stores today in Texas can, and do, sell more than six dildos.

We’ll reconsider our ruling if additional information comes to light, but for now, we rate it Mostly False.

Our Sources

CNN, "Congressman cites dildo law in Texas dis," Feb. 6, 2015

Find Law, U.S. District Court of Appeals Fifth Circuit Reliable Consultants Inc. PHE vs. Earle, Feb. 12, 2008

Texas Court of Appeals 13th District, Beatrice Villarreal vs. State of Texas, July 2008

Lone Star Q, "Fact-check: are dildos really illegal in Texas?" Dec. 18, 2013

Huffington Post, "Jon Stewart knows who would win a war between Texas and Florida," Feb. 5, 2015

Huffington Post, "Rep. Alcee Hastings says of Texas dildo law shows the state is crazy," Feb. 6, 2015

Austin American Statesman, "Court overturns sex toy ban," Feb. 14, 2008

Associated Press, "State loses attempt to argue anew for sex toy ban," Aug. 1, 2008

Interview, Jennifer Kinsley, attorney and Assistant Professor of Law Northern Kentucky University, Feb. 6, 2015

Interview, H. Louis Sirkin, Esq., Santen & Hughes, Feb. 6, 2015

Interview, Anna Núñez, American Civil Liberties Union of Texas spokeswoman, Feb. 6, 2015

Interview, Jon English,  Texas District and County Attorneys Association research attorney, Feb. 6, 2015

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Alcee Hastings’ Texas dildo claim doesn't hold up

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