11th Circuit Court of Appeals Rejects First Amendment Claims Brought by Adult Entertainment Businesses

Plaintiffs-Appellants Flanigan’s Enterprises, Inc. of Georgia (d.b.a. “Mardi Gras”) and 6420 Roswell Rd., Inc. (d.b.a. “Flashers”), were strip clubs located in the City of Sandy Springs, Georgia. Plaintiff-Appellant Fantastic Visuals, LLC (d.b.a. “Inserection”), was a sex shop also located in the City. Plaintiffs filed suit against the City, claiming that various provisions of the City’s Alcohol Code, Adult Zoning Code, and Adult Licensing Code violated a number of their rights under the U.S. and Georgia Constitutions. The district court granted summary judgment in favor of the City on various claims that Plaintiffs did not raise on appeal, but it denied the City’s summary-judgment motion with respect to other claims.

 

On appeal, Plaintiffs first challenged the level of scrutiny used by the district court in granting judgment in favor of the City on various claims brought under the First Amendment to the U.S. Constitution. The court found that the secondary-effects doctrine allowed a content-based, adult-entertainment-related law to be subjected to less than strict scrutiny as long as the law could be justified by a legitimate interest in combating the harmful secondary effects of adult entertainment. Mardi Gras and Flashers next contended that the alcohol ban would have put them out of business, which would silence speech in an amount disproportionate to the amount of secondary effects that the ban would combat: thus rendering the ban unconstitutional under the proportionality test. The court, however, declined to use the proportionality test, and therefore affirmed the district court’s judgment in favor of the City with respect to these claims.

 

Lastly, Inserection alleged that these ordinances were content based and therefore subject to strict scrutiny. Under Georgia law, the strict-scrutiny analysis for an adult-entertainment regulation would require the City to prove that its ordinances were the “least restrictive means” of achieving the City’s goals. However, since this argument was brought for the first time on appeal, the court declined to address it. Accordingly, the district court’s judgment was affirmed.

 

Flanigan’s Enterprises, Inc.  of GA v City of Sandy Springs, 2017 WL 3475481 (11th Cir. CA 8/14/2017)