Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia, 703 F. App'x 929

Background

Plaintiffs (two strip clubs and a sex-shop) operate in Sandy Springs and challenged multiple City adult-entertainment ordinances (including a ban on alcohol in nude-dancing establishments) as violating U.S. and Georgia free-speech protections.
Litigation followed an extended history with Fulton County: earlier appeals produced Flanigan’s I (invalidating a county alcohol ban under O’Brien) and Flanigan’s II (upholding a later county ban based on a stronger evidentiary record).
Sandy Springs enacted adult-entertainment regulations after incorporation, relying on a legislative record of secondary effects; plaintiffs continued some alcohol sales under consent agreements.
The district court granted summary judgment to the City on many claims, reserved others for trial, then after a bench trial entered final judgment for the City on remaining claims.
On appeal plaintiffs argued Reed v. Town of Gilbert requires strict scrutiny of the ordinances and, alternatively, that Alameda Books (Kennedy concurrence) requires a proportionality/least-restrictive-means analysis; one plaintiff also raised unpreserved Georgia-constitutional strict-scrutiny arguments.
The Eleventh Circuit affirmed: it applied the secondary‑effects framework and intermediate scrutiny, declined to adopt Kennedy’s proportionality test as binding, and refused to consider issues not preserved below.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Reed requires strict scrutiny of adult‑entertainment regulations that facially differentiate by content	Reed’s holding transforms content‑based analysis so these ordinances must get strict scrutiny	Reed did not overrule Supreme Court secondary‑effects precedent; those precedents control here	Court applied the secondary‑effects framework and intermediate scrutiny; Reed did not abrogate that line of cases
Whether Alameda Books (Kennedy concurrence) requires a proportionality test that would invalidate the City’s alcohol ban	Alameda Books’ proportionality test would show the alcohol ban disproportionately suppresses speech and is therefore invalid	Kennedy’s concurrence is not binding precedent and the Court should not extend it here post‑Reed	Court declined to adopt Kennedy’s proportionality test and affirmed under intermediate scrutiny
Whether Inserection’s Georgia‑constitutional claim requires least‑restrictive‑means review and whether issue preserved	Inserection: Georgia law requires least‑restrictive‑means for content‑based adult‑speech restrictions; City failed that test	City: Inserection did not preserve that argument below; merits need not be reached	Issue deemed not preserved; appellate court declined to reach the merits; judgment for City affirmed
Whether the City met evidentiary/secondary‑effects burdens to justify its regulations	Plaintiffs: City’s justifications insufficient post‑Reed and under proportionality	City: Legislative record and evidence supported substantial governmental interests and reasonable alternatives	Court found secondary‑effects precedent applicable and sustained City’s regulations under intermediate scrutiny

Key Cases Cited

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (facial content‑based laws are subject to strict scrutiny regardless of benign motive)
United States v. O’Brien, 391 U.S. 367 (1968) (four‑part test for regulation of expressive conduct)
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (time, place, and manner/secondary‑effects framework for zoning adult businesses)
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality and Kennedy concurrence on secondary‑effects and proportionality)
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (public‑nudity/expressive conduct analysis)
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (application of O’Brien to nude‑dancing regulations)
Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 242 F.3d 976 (11th Cir. 2001) (Flanigan’s I) (invalidating county alcohol ban for failing O’Brien prong 2)
Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 596 F.3d 1265 (11th Cir. 2010) (Flanigan’s II) (upholding a later county alcohol ban based on stronger evidentiary record)
Peek‑A‑Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 630 F.3d 1346 (11th Cir. 2011) (discussing secondary‑effects strands and Renton/O’Brien applications)
Peek‑A‑Boo Lounge of Bradenton, Inc. v. Manatee County, Fla., 337 F.3d 1251 (11th Cir. 2003) (addressing intermediate vs strict scrutiny in adult‑business zoning)
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (lower courts must follow directly controlling Supreme Court precedent unless and until overruled)