Major civil liberties groups are urging the U.S. Supreme Court to decide a lawsuit over a Sandy Springs ban on sex-toy sales that they say could make basic rights unenforceable.
Among those who filed briefs asking the court to hear Davenport v. Sandy Springs are the Reason Foundation, a prominent libertarian think tank; the Student Press Law Center, which defends student journalists; the DKT Liberty Project, a Washington, D.C.-based civil liberties group; and a “Restoring Religious Freedom Project” at Emory University School of Law. A decision to accept or reject the case should come in April.
The case involves a lawsuit by the bookstore Inserection and two individuals challenging a city law banning the sale of “sexual devices.” Last year, the city quietly deleted the law on the eve of a U.S. 11th Circuit Court of Appeals decision that appeared likely to rule the law an unconstitutional infringement of civil liberties. As a result, the court ruled the case moot.
But the plaintiffs argue it should continue with nominal damages. Emory Law professor Sarah Shalf, who filed the brief from Emory and the Student Press Law Center, said that concern is about government getting a free pass at violating the Constitution by deleting a law at the last minute of a court challenge.
“It’s like when my older brother used to pinch me when my parents weren’t looking: If they caught him in the act, he would stop — but I wanted him to be admonished for pinching me at all,” she said.
The city has already faced a similar argument in another adult business case argued in early March before the Georgia Supreme Court, with a decision pending. In Maxim Cabaret v. Sandy Springs, local strip clubs are challenging zoning laws, but the city argues the challenges are moot due to later repeals.
In the sex-toy case, the city similarly argues the case is not only moot, but that no one was ever harmed because the law was never enforced.
That argument has drawn the attention of civil libertarians and law schools, who think the Supreme Court might be willing to take the case. The lawsuit was handled by local lawyers previously, but the petition to the Supreme Court was filed in December by Stanford Law School’s Supreme Court Litigation Clinic.
“There was a lot of interest in this issue from lots of different people who are public interest lawyers who litigate against governments,” said David Goldberg, who is lead lawyer on the petition as an instructor at Stanford’s clinic.
The Supreme Court accepts only a tiny percentage of the cases submitted to it for review, Goldberg said. But, he added, the sex-toy case involves a controversy among federal courts that the Supreme Court is likely to have to decide eventually.
In their briefs filed with the Supreme Court, the civil liberties groups argue that the case could render any rights that don’t have a clear monetary value as unenforceable, including intangible property rights, prisoners’ rights, and any First, Fourth and Fourteenth Amendments rights.
The brief from the Emory Restoring Religious Freedom Project and the Student Press Law Center argues that “these rights will be relegated to second-class status – unenforceable so long as the government knows when to quit.”
The city argues that the lower court’s decision does nothing to change current law and protections of civil liberties. However, City Attorney Dan Lee said during a recent update to the City Council about the cases that he believes the briefs will be influential on the Supreme Court as it considers whether to accept the case.
Meanwhile, the city may be opening yet another front in its legal battles with sexually oriented businesses. At that same March 6 City Council meeting, Lee said the city believes local strip clubs have not been paying proper license fees and excise taxes to the city and will pursue legal action for a total of $240,000 in fees and $400,000 in taxes. He said a full announcement and explanation would come by March 9, but that did not happen.
Attorneys for the local clubs say they do not know what Lee was referring to, and noted that as part of the ongoing lawsuits, they are unable to get licenses from Sandy Springs, and are instead operating under consent agreements.