ATLANTA, Ga.—It's well-known that the Eleventh Circuit Court of Appeals is a fairly conservative one, and they proved that once again by denying relief to adult cabarets Mardi Gras and Flashers and adult pleasure product retailer Inserection from the zoning laws enacted by Sandy Springs, Georgia, at the instigation of religio-conservatives led by attorney Scott D. Bergthold.
The adult business litigation has gone on for nearly 20 years, beginning with Mardi Gras owner Flanigan Enterprises, Inc. of Georgia and Flashers owner 6420 Roswell Rd., Inc. having sued Fulton County, where Sandy Springs would eventually be incorporated, back in 1997 for prohibiting alcohol service in the all-nude clubs—a suit which the clubs won.
Fast-forward to 2005 and the incorporation of Sandy Springs as an independent municipality, and one of its first actions was to enact a slate of anti-adult zoning ordinances, again at the instance of local religious conservatives, and written by Bergthold—and it's those ordinances that are still being litigated 12 years later, resulting in the most recent loss before a three-judge panel of the Eleventh Circuit.
But when the panel's decision in Flanigan's Enterprises of Georgia, Inc., et al v. City of Sandy Springs, Georgia came down on Monday, August 14, there wasn't a dissent in the bunch—but there were some rather strained interpretations of a couple of the key issues in the case, notably the effects on the ordinances of the U.S. Supreme Court's decisions in Reed v. Town of Gilbert and City of Los Angeles v. Alameda Books.
"On appeal, Plaintiffs argue that the district court erred in granting judgment in favor of the City on various claims brought under the First Amendment to the U.S. Constitution," the panel wrote. "According to Plaintiffs, these claims challenge ordinances that are content based. Plaintiffs acknowledge that if precedent predating Reed v. Town of Gilbert, Arizona, applied, the district court may have been correct in subjecting these ordinances to intermediate scrutiny. But they contend that Reed changed the applicable law so that the ordinances should have been subjected to strict scrutiny. Mardi Gras and Flashers also argue that, even if the ordinances are not subject to strict scrutiny, they still fail the proportionality test set forth by Justice Kennedy in his concurrence in City of Los Angeles v. Alameda Books, Inc.—a test that they claim constitutes binding law in this Circuit. We reject both of these arguments." [Citations removed here and below]
As those familiar with First Amendment law will recall, the Reed case caused the Supreme Court to rethink the standard of scrutiny which should be applied to free speech cases. In Reed, the town of Gilbert, Arizona, had enacted ordinances which discriminated against certain types of roadside signage based on the type of information being conveyed on the sign.
"Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests," the high court found in Reed. "Speech regulation is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." In other words, content-based speech laws require review under "strict scrutiny"—and what could be more content-based than disallowing alcohol to be served in a venue where nude dancers perform, while not putting a similar restriction on other venues that serve alcohol with their entertainment?
The problem is, Sandy Springs had argued, based on the 1986 U.S. Supreme Court case of City of Renton v. Playtime Theatres, Inc., that the clubs had caused "adverse secondary effects" to the neighborhood where they were located, and it was on that argument that the panel based part of its decision.
"If the government sought to restrict the adult-entertainment-related speech because of the speech’s content, then the ordinance must be evaluated under strict scrutiny," the panel wrote. "But if the government intended to combat the 'secondary effects' of adult entertainment in the surrounding community—i.e., increased crime, decreased property values, etc.—then the ordinance is held to intermediate scrutiny. In other words, intermediate scrutiny applies if the ordinance can be justified without reference to the content of the regulated speech. ... The framework for analyzing public-nudity ordinances is similar." [Internal quotes omitted]
While the panel appeared to understand Plaintiff attorney Cary Wiggins' argument regarding the application of Reed to the instant case, it noted, "[S]ignificantly, the majority opinion in Reed did not address the secondary-effects doctrine. For this reason alone, we cannot read Reed as abrogating either the Supreme Court’s or this Circuit’s secondary-effects precedents."
However, the panel added a caveat in a footnote: "Plaintiffs read Justice Kagan’s concurrence [in Reed] as advocating for a qualification of the majority’s reasoning so that the secondary-effects doctrine could be left intact. Regardless of whether certain aspects of Justice Kagan’s concurrence may prove to be correct, however, today we must concern ourselves with only the holding of the majority in Reed."
And with that footnote, the panel provided a bit of hope.
But the Plaintiffs had another argument that didn't depend on the application of strict scrutiny. Wiggins argued that even applying intermediate scrutiny to the case—that is, the concept that unless the government can prove that the law being challenged furthers an important government interest by means that are substantially related to that interest, the law must fall—the panel should apply Justice Anthony Kennedy's reasoning in the Alameda Books case, where he recognized "that, for a government to advance a legitimate interest in combating harmful secondary effects, the government must establish not only 'that its regulation has the purpose and effect of suppressing secondary effects' (a requirement that was, by then, governing law), but also that the regulation 'leav[es] the quantity and accessibility of speech substantially intact'," quoting the panel's interpretation, which it described as the "proportionality test."
But while the panel admitted that the Eleventh Circuit had previously recognized Justice Kennedy's concurrence as "precedential," it stated that it could only apply that portion of the concurrence which agreed with the majority's opinion, which had been authored by Justice Sandra Day O'Connor.
"Because Justice Kennedy’s Alameda Books proportionality test cannot be harmonized with the plurality’s opinion, it is not binding Supreme Court precedent," the panel's opinion states, later adding, "We could nevertheless adopt the proportionality test for the first time today. Under the circumstances, though, we are not inclined to do so."
Finally, the panel notes that Inserections had challenged Sandy Springs' ordinances under the free speech clause of Georgia's Constitution, to which it said the Reed decision would apply, but the panel ruled that that issue had only been raised for the first time during the store's appeal of the district court ruling—"the party seeking to raise the issue must first present it to the district court in a manner that allows the court 'an opportunity to recognize and rule on it,' and then the party may properly present it to this Court on appeal."—and that therefore, the panel could not consider that argument.
So what does the future hold for Flanigan's?
"Procedurally, we're going to pursue the case further, but we don't know exactly how yet, and what I've been telling the media is that we're exploring options," said Wiggins. "I feel cautiously optimistic; I don't know how else to be."