Is the city’s crackdown on adult businesses a legitimate fight against crime or an unconstitutional violation of civil liberties? After decade-long legal battles, that question is inching closer to being asked directly to the U.S. Supreme Court.
In recent weeks, the city won yet another federal court decision, and faced yet another appeal, in its war with local strip clubs and an adult bookstore. On paper, the city is winning the cases, but in practice, it often does so by making last-minute changes to its laws which effectively loosen the intended restrictions on adult businesses.
This year, that legal strategy has included deleting an entire ordinance banning sex-toy sales and expanding the districts where adult businesses are allowed in the new zoning code from one to seven. Such last-minute changes have themselves become part of the lawsuits’ controversies.
Cary Wiggins, an attorney representing businesses involved in two of the legal battles, says appeals to the Supreme Court are on the table. While the Supreme Court accepts only a small number of the thousands of cases submitted, even a petition for its review would mean even more years of high-stakes legal combat.
“We’re not going to leave any stone unturned,” Wiggins said of the strategy in one of the two cases.
City Attorney Dan Lee declined to comment, citing the ongoing litigation.
Wiggins represents two strip clubs, Flashers and Mardi Gras, and the bookstore Inserection, which is located on Roswell Road across the street from City Hall. The businesses are involved in two separate but related lawsuits that recently had significant developments: the main challenge to city zoning and alcohol laws, and a spin-off case about the sex-toy ban.
The main case
The main case began in 2006, when the businesses challenged new city codes suggested by Scott Bergthold, a Tennessee attorney who specializes in municipal laws cracking down on sexually oriented businesses. The codes aimed to ban the sale of booze — a major source of revenue — in strip clubs and to place strong zoning restrictions on where such businesses could operate.
The city has said it has no problem with adult entertainment per se, but argues that it produces crime as a side effect that needs to be controlled. The businesses say the city’s laws are motivated by a bias against their work and intended to make it impossible for them to operate. The businesses sued, claiming violations of the U.S. Constitution’s First and Fourteenth Amendments.
The city won an initial hearing and also won a federal court appeal on Aug. 14. On Sept. 1, the businesses filed a petition for the case to be re-heard, preferably by a panel of all judges of the U.S. 11th Circuit Court of Appeals. The businesses claim a three-judge panel that heard the appeal did not pay enough attention to certain constitutional arguments.
If the court declines to re-hear the case, the next available step for the businesses would be a petition to the U.S. Supreme Court. Wiggins said his clients aren’t looking that far ahead yet, but added, “We’re going to continue to pursue the case, no question about that.”
The petition to re-hear the case focuses on the interpretation of two Supreme Court decisions. In one of those cases, Los Angeles v. Alameda Books, Inc. (2002), the court upheld zoning restrictions on adult bookstores similar to those in Sandy Springs. However, Wiggins asks the court to focus on Justice Anthony Kennedy’s opinion in that case, which cautioned that cities can regulate the effects of such bookstores, but not by directly suppressing their speech.
The other Supreme Court decision was last year’s influential Reed v. Town of Gilbert, which said a city’s sign ordinance violated First Amendment free speech rights because it restricted the size of certain signs based on their content. In Sandy Springs, the adult businesses seem to suggest the case could apply to restrictions in zoning categories, too, when they are treated different from other clubs or bookstores.
The ‘sexual devices’ case
In 2009, the city enacted a sex-toy ban targeting adult bookstores. Under the ordinance, anyone selling a “sexual device” could have been fined, jailed or sentenced to “confinement at labor.” Inserection challenged the ban as part of the main lawsuit, and a court later ordered the dispute to be a separate case, with two individual residents joining the bookstore as plaintiffs.
The city won initial rounds in court. But in March, the entire 11th Circuit Court threw out a previous decision and agreed to re-hear the case, strongly suggesting the ordinance was about to be ruled unconstitutional. Days later, the City Council quietly deleted the ordinance from the books.
However, the lawsuit continued, though the major point of controversy became whether the ordinance’s deletion made the dispute moot. On Aug. 23, a divided 11th Circuit ruled the case was indeed moot and the plaintiffs cannot seek damages.
The last possible appeal would be a petition to the U.S. Supreme Court, and that is under consideration.
“We’re exploring options with an eye to moving to the next level,” said Wiggins.
In the Aug. 23 decision, the court majority noted that it is fair to be skeptical of the city’s last-minute killing of the sex-toy ban in question.
“We are cognizant of the fact that the city defended its ordinance for nearly a decade and … declined to concede that it was unconstitutional,” the opinion says. But, the court adds, “Appellants have already won” and cannot be given damages for “purely psychic satisfaction.”
However, five justices joined a dissenting opinion that said the case should have continued. Letting the city slip away by killing the ordinance after years of subjecting the bookstore to it, the justice wrote, amounts to saying that “the government gets one free pass at violating your constitutional rights.”
The court majority wrote that it believed the city’s deletion of the ordinance was sincere, not a manipulation of the system, partly because of City Council public “deliberation” and public votes on the subject: the actual repeal, and a resolution in which the council “disavowed” the ordinance and promised to never again pass one like it.
The ordinance repeal was public, but carried out with no open council discussion and no hint of its controversial purpose. The repeal was approved by the council on its “consent agenda,” where various unrelated items are up for a single vote without elaboration or discussion. It appeared on that agenda under a generic title and its true details could be seen only by clicking through a link on the online version of the agenda.
And it is unclear what resolution “disavowing” such laws the court referred to, as none seems to have been on any City Council agenda between the time of the ordinance repeal and the court hearing.