On August 14, 2017, the U.S. Court of Appeals for the 11th Circuit issued its decision in the case of Flanigan’s v. City of Sandy Springs (No. 16-14428). The Court held in favor of the City of Sandy Springs, Georgia in the appeal by two strip clubs and an adult bookstore. The litigation dealt with a 1997 amendment to County code, effecting a prohibition on the sale and consumption of alcoholic beverages in adult-entertainment establishments featuring live nude or partially nude performances. Sadly for the adult entertainment industry, at the end of a very long road for the plaintiffs, there was no “happy ending.”
The case dealt with First Amendment issues relating to freedom of speech in relation to adult industry content. The Court acknowledged that on their face, the ordinances may appear to be content based because they target adult entertainment. It also acknowledged that if general principles of First Amendment law were to be applied, the ordinances would be subjected to the extremely difficult test of “strict scrutiny.” Strict scrutiny is, as its name implies, the most strict standard of judicial review. To withstand strict scrutiny, the burden is on the government to prove that it passed the law to further a “compelling governmental interest,” and that the law is “narrowly tailored” to achieve that interest.
Below strict scrutiny, there are two other tests that courts use in relation to First Amendment questions. “Intermediate scrutiny” is the mid-level standard of review. To pass intermediate scrutiny, the government has the burden to prove that it passed the law to serve an important government objective, and that the law is substantially related to achieving that objective. “Rational basis” review is the lowest and most forgiving standard. Under the rational basis test, the person challenging the law (not the government) has the burden to prove that either: (a) the government has no legitimate interest in the law or policy, or (2) there is no reasonable, rational link between that interest and the challenged law.
Strict scrutiny is typically applied in instances where it is found that speech is regulated based on its content, i.e. when a law is not “content-neutral.” So, ordinarily, strict scrutiny would be applicable to the case at hand because strip clubs are being regulated because of the content of their entertainment. Almost ubiquitously, when strict scrutiny is applied to a law, it is fatal. The test is so difficult to pass that most laws do not survive, and are therefore invalidated. Adult entertainment, however, is given special status… And unfortunately, not in a good way. Adult entertainment regulations are excepted from the applicability of strict scrutiny even though a law is content-based. In the Flanigan’s decision, the 11th Circuit Court explained:
[U]nder … Supreme Court and Eleventh Circuit precedent, adult-entertainment ordinances are not treated like other content-based regulations. See Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla. (“Peek-A-Boo II”), 630 F.3d 1346, 1353-54 (11th Cir. 2011). Two strands of case law, often intertwined, embody this exception: (1) the zoning strand, which deals with ordinances that regulate land use for adult-entertainment businesses, such as stores that sell pornography and theatres that play pornography; and (2) the public-nudity strand, which deals with ordinances that ban public nudity as a general matter and thereby indirectly regulate nude dancing.
The Court explained the framework for analyzing zoning ordinances, but analysis of such is beyond the scope of this article. To learn more about zoning and adult entertainment establishments, check out my article on the subject here.
The Court laid out the framework for public nudity ordinances as follows:
The first step is … the court asks whether the government’s purpose in enacting the ban on public nudity is related to the suppression of the erotic message conveyed by nude dancing. See Flanigan’s I, 242 F.3d at 983. If it is, then the ban is subject to strict scrutiny; but if the ban is motivated by some other purpose, then the O’Brien test, which is less restrictive than strict scrutiny, applies. See id. This is similar to analysis of zoning regulations where a less restrictive test is applied if it is determined that the government intended to combat the harmful “secondary effects” of adult entertainment in the surrounding community—i.e., increased crime, decreased property values, etc. This is known as the “secondary effects doctrine.” Under the O’Brien test, “an ordinance is valid if: (1) it serves a substantial interest within the power of the government; (2) the ordinance furthers that interest; (3) the interest served is unrelated to the suppression of free expression; and (4) there is no less restrictive alternative.” Id. at 984.3
The plaintiffs argued that such framework was altered by the 2015 decision of the U.S. Supreme Court in Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218 (2015). In that case, the U.S. Supreme Court reviewed a municipal sign code which provided different treatment for signs based on the categories into which the signs fell, such as “ideological,” “political,” or “temporary directional.” 135 S. Ct. at 2224-25. The Supreme Court determined that the sign code was “content based on its face” because the code’s restrictions applied to signs differently, “depend[ing] entirely on the communicative content of the sign.” Id. at 2227. The Court emphasized that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed,” and the Court reiterated the rule that content-based laws are subject to strict scrutiny. Id. The 11th Circuit cited to these passages of Reed in its discussion.
Since the Supreme Court did not mention the secondary effects doctrine in Reed, the 11th Circuit refused to read the case as abrogating the secondary effects doctrine. This is not surprising since Reed had nothing to do with adult entertainment. The plaintiff’s other arguments were similarly found unpersuasive. Accordingly, the 11th Circuit affirmed the District Court’s application of intermediate scrutiny, allowing the law to stand. You can read the full text of the decision here.
For now, if you’re living or visiting a state within the 11th Circuit, and want to hit up a full nudity strip club, you’ll have to settle for some really tasty grape juice instead of whiskey if the municipality says so. Or, instead, just stay home where you can have a real drink and chat online with a cam model. So, the effect of the law is to starve legitimate and legal strip club businesses of avenues of revenue… Quite a cock block.