(Not, please note, your right to be a jerk-off.)
Geoffrey Stone reports in the Huffington Post on a case decided a couple of weeks ago by the Alabama Supreme Court - 1568 Montgomery Highway v. City of Hoover (pdf)
The case turned on the constitutionality of a 1998 Alabama statute which
criminalize[s] the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value."
or, in laymen's language, the sale of devices to let you masturbate.
Now, that's sale. Not use. It's still legal to jerk off in Alabama. See below.
(First, a religious digression. The story of Onan (Gen. 38:7-10) has often been used in both Jewish and Christian traditions to justify calling masturbation a sin, and Christians have gone further and argued that it shows that all non-reproductive sex is sinful. Modern theologians find the issue to be more complex; see here for example. We can discuss this in the comments.)
The US, as Stone reminds us, has gone through periods of hysteria over the very idea of masturbation. He mentions graham ceackers, which the Rev. Sylvester Graham invented in 1829 with the idea that they would suppress masturbatory impulses; in the early XX century, Dr. Kellogg developed corn flakes for the same purpose. Neither worked, by the way.
The Alabama Supreme Court, you may (or may not) be surprised to learn, did not succumb to hysteria. As it notes in passing:
Alabama law does not prosecute masturbation or other stimulation of the genitals, even when performed with a sexual aid. Rather, it is the sale of the sexual device, and not the use of it, that is proscribed.... [Emphasis added]
As Stone notes:
[T]he Alabama Supreme Court acknowledged that a more aggressive version of the anti-sex aid statute might well be unconstitutional. For example, if the law prohibited not only the sale of such devices, but also their use, it might so intrude on the individual's right of personal privacy as to violate the Constitution.
The issue for the Alabama court is this: The US Supreme Court has not yet ruled on a right to sexual freedom. The rulings on contraceptives were based on reproductive rights, and the prohibition against outlawing private homosexual conduct was ("arguably" according to Stone) based on discrimination, but as far as Alabama is concerned, SCOTUS has not yet faced the question of whether citizens of the United States have a right to sexual freedom (whatever that ends up being).
Failing a ruling on this point, the court looked to Lawrence v Texas (the 2003 case where SCOTUS struck down the Texas sodomy laws as discriminatory against homosexuals), and at the Elventh Circuit's interpretation of that decision.
The Eleventh Circuit did not interpret Lawrence as eliminating public morality as a rational basis for determining the constitutionality of legislation. Although the court recognized that to the extent that Lawrence rejected public morality as a legitimate government interest, it invalidated only those laws that involved both private and noncommercial activity. ...
Post-Lawrence, public morality can still serve as a legitimate rational basis for regulating commercial activity, which is not a private activity.
Put another way, the users of such devices may assert a right to use them on the basis of privacy, but a commercial business cannot assert the same right, because it is not the user and has no expectation of privacy.
So it's OK to jerk off in Alabama, and even to use mechanical aids to do so, so long as you don't buy them in Alabama. (And no, there is no movement in Montgomery to outlaw the sale of KY or vaseline.)
In the meantime, though, we still have the Alabama Supreme Court arguing that since SCOTUS has not explicitly recognized sexual freedom as a right, they are not going to go there. Further that public morality is still a legal argument to block the sale of sex toys (and presumably pornography). This last point is a concern to Stone:
What, precisely, is the "public morality" that is being promoted by a law forbidding the sale of sex aids? It cannot be sufficient merely to invoke the "public morality" to sustain a law, because virtually every law can be said to promote the "public morality."
Here I think he misreads the court, which restricted the "public morality" doctrine to commercial sales, and made clear that private activity (consenting, of course) cannot generally not be regulated.
Here is the issue: These devices, though sold in public, are intended to be used in private. By blocking their public sale, Alabama is therefore inhibiting or restricting private behavior that it has conceded it cannot prohibit by law. (Whether minors had access to the sex toys was a side issue, which the court debated but did not make the basis of its decision.)