HOUSTON, TX – U.S. District Judge Gray Miller ruled Monday that the Texas Alcoholic Beverage Commission (TABC) may not seize erotic material from business licensed by the TABC without first obtaining a court ruling that the materials in question are “obscene.”Monday’s ruling grants a permanent injunction against the TABC requested by Houston-based Carico Distributing Co., which filed suit against the TABC in 2003 in order to stop raids the TABC had been conducting on liquor stores and convenience stores carrying the adult magazines, videos, and CDs distributed by Carico.
The materials being seized by the TABC included publications that are commonly sold in liquor and convenience stores across the country, according to attorney Michael Lamson, who represented Carico in the lawsuit.
Lamson was quoted in Associated Press reports earlier this year as saying that TABC agents were “taking everything on the rack – Penthouse, whatever was there.”
According to reports in the Houston Chronicle and the Associated Press, Miller wrote in his ruling that the TABC may not “simply designate materials ‘obscene’ and then proceed from that untested premise,” adding that the law “demands a judicial determination that this designation is accurate.”
Miller also struck down as unconstitutional the statute that the TABC was enforcing by seizing such materials, saying that the statute is impermissibly vague.
The statute in question, which prohibits the possession or display of “immoral, indecent, lewd, or profane” materials by merchants licensed by the TABC, “cuts a wide and broad swath across territory covered by the First Amendment,” Miller wrote.
Miller reasoned that non-obscene pornographic material “while not enjoying a favored or central place in the First Amendment landscape,” are nevertheless protected by the First Amendment.
According to Lamson, the TABC has the option of appealing Miller’s decision or waiting for the State Legislature to amend the law.
