The U.S. Supreme Court has denied review of a lawsuit over a Sandy Springs ban on sex-toy sales, meaning the city will pay no penalty for a law that may have been unconstitutional.
A petition for the court to decide Davenport v. Sandy Springs was denied March 26, according to the court’s website.
“We are disappointed that the court declined to address the issue,” said David Goldberg, a Stanford Law School Supreme Court Litigation Clinic instructor representing the business and individuals who challenged the ordinance. The city, in a written statement, briefly summarized the denial without offering an opinion about it.
An adult bookstore at the center of the lawsuit, Inserection, is joined with other adult businesses in another, larger case that is still awaiting a Supreme Court decision on possible review. That case, Flanigan’s Enterprises, Inc. v. Sandy Springs, has bigger consequences for the business because a loss or denial of review allows the city to shut it down or force it to move. That decision likely will come by early April.
Both cases originate in a 2006 controversy, when the bookstore and strip clubs 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.
In 2009, amid the ongoing legal battle, 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 and two individual challenged that ban, which then became a separate, spin-off lawsuit.
Last year, the city quietly deleted the sex-toy ban ordinance 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 argued it should continue with nominal damages. Several civil liberties groups, including the Reason Foundation, the Student Press Law Center and a religious freedom project at Emory University School of Law filed briefs urging the Supreme Court to take the case, saying the lower court’s decision risked making basic rights unenforceable.
Emory Law professor Sarah Shalf, who filed the brief from Emory and the Student Press Law Center, previously said the concern was about government getting a free pass at violating the Constitution by deleting a law at the last minute of a court challenge.
But the city argued the case is not only moot due to the ordinance’s deletion, but that no one was ever harmed because it was never enforced.
In both the main Flanigan’s case and the spin-off Davenport case, the city won in lower courts—but often did so by making last-minute changes to its laws which effectively loosened the intended restrictions on adult businesses. That included greatly expanding the types of zoning areas where adult businesses can operate in the new Development Code.
Update: This story has been updated with comment from the city and the attorney for the business and individuals seeking the Supreme Court’s review.