Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia
831 F.3d 1342
11th Cir.2016Background
- City of Sandy Springs enacted Ordinance §38-120 (2009) banning commercial distribution of "obscene material," defining sexual devices as obscene unless for contraceptive/health use.
- Plaintiffs: Inserection (adult bookstore) and Intervenors Melissa Davenport (MS patient who uses devices) and Marshall Henry (artist using devices in artwork) challenged ordinance on Fourteenth Amendment due process and First Amendment grounds.
- District court granted City judgment on the pleadings under Rule 12(c), upholding the ordinance; appellants appealed.
- Central factual claims: Davenport and customers seek to buy/sell devices for private medical/intimate use; Henry claims artistic use and sale of art would be burdened.
- Appellants argued Lawrence, Windsor, and Obergefell changed substantive due process/privacy analysis and undermined Eleventh Circuit precedent in Williams v. Attorney General (Williams IV).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Due Process protects a right to buy/sell/use sexual devices | Williams and Intervenors: Lawrence (and later Windsor/Obergefell) recognize a liberty to engage in private consensual sexual intimacy that covers devices | City: Williams IV controls; no fundamental right to buy/sell/use devices | Court: Williams IV remains binding; no Due Process right to buy/sell/use devices affirmed |
| Whether Williams IV is abrogated by Windsor/Obergefell | Appellants: Windsor clarified Lawrence; Obergefell relaxed Glucksberg framing, so Williams IV is undermined | City: Williams IV still binding absent en banc or Supreme Court overruling | Court: Windsor/Obergefell raise doubt but do not abrogate Williams IV; panel bound to follow it |
| Whether the ordinance violates First Amendment as applied to Henry's artwork | Henry: ordinance burdens artistic expression by treating devices as obscene and restricting sale/use for art | City: Henry's art not "designed or marketed primarily for stimulation" and thus not covered | Court: Henry failed to state First Amendment claim; ordinance does not impair his art |
| Other challenges: commercial-speech/vagueness/equal protection | Inserection/Intervenors raised commercial-speech, vagueness, equal protection claims | City defended ordinance enforcement and constitutionality | Court: No reversible error by district court on these claims as presented on appeal |
Key Cases Cited
- Williams v. Attorney General, 378 F.3d 1232 (11th Cir. 2004) (holding Due Process does not protect sale/use of sexual devices)
- Lawrence v. Texas, 539 U.S. 558 (2003) (recognized liberty for private, consensual sexual intimacy)
- Washington v. Glucksberg, 521 U.S. 702 (1997) (framework for defining fundamental rights under Due Process)
- United States v. Windsor, 570 U.S. 744 (2013) (invalidated DOMA provision and described liberty in Lawrence as protecting private sexual intimacy)
- Obergefell v. Hodges, 576 U.S. 644 (2015) (refined analysis for privacy-based rights and cautioned against overly narrow Glucksberg framing)