WASHINGTON, D.C.—In an order issued earlier today, the United States Supreme Court has denied certiorari in the long-running case of Flanigan’s Enterprises, Inc., et al v. City of Sandy Springs, GA. This means that the high court will not hear argument that ordinances passed by the city, which zoned out several existing clubs—Flashers on Roswell Road and the Mardi Gras on Powers Ferry Road, as well as adult bookstore Inserections, also on Roswell Road—and prohibited the sale of alcohol in the adult clubs where nudity is allowed, are unconstitutional.
"Both cases , 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 ReportersNewspapers.net website . Bergthold is a long-time conservative religious activist who is responsible for drafting anti-adult ordinances across the country, and then offering his services to defend those ordinances in court. Sandy Springs has already paid several hundred thousand dollars to Bergthold for his "services."
First Amendment attorney Cary S. Wiggins, the primary attorney involved in the case, had filed his petition for writ of certiorari earlier this year, arguing in part that the Supreme Court's decision in Reed v. Town of Gilbert changed the playing field for how the high court should examine cases dealing with the First Amendment rights attendant to sexual speech. In the 2257 case, for example, the Third Circuit Court of Appeals ruled that post-Reed, adult producers' First Amendment rights should be examined under the doctrine of strict scrutiny rather than intermediate scrutiny, as that court and the trial court had previously done. Strict scrutiny requires that in attempting to uphold a law which targets sexual speech (such as, in this case, nude dancing), a court must find that the law in question is justified by a compelling governmental interest, and is both narrowly tailored to achieve that goal or interest and at the same time is the least restrictive means to achieve that interest.
Wiggins also argued that even if the Sandy Springs statute survives examination under Reed, then it adds to an existing conflict among the appellate circuits; namely, Justice Anthony Kennedy's concurrence in City of Los Angeles v. Alameda Books, as well as the Eleventh Circuit's interpretation of both Justice Kennedy's Alameda holding, which stated that although four other circuits consider Kennedy's concurrence to be binding because it states the narrowest ground on which the other justices concurred in the judgment, the Eleventh Circuit had added a requirement that such a concurrence must also be "harmonized with the plurality's opinion" in order to be binding.
Also, when Wiggins argued the case before the Eleventh Circuit back in August of last year, another reason that court upheld the Sandy Springs ordinances was because Justice Kennedy's concurrence in Reed didn't deal with the concept of secondary effects as noted in the 1986 case of Renton v. Playtime Theatres, which Sandy Springs claimed the targeted adult businesses had caused.
"[S]ignificantly, the majority opinion in Reed did not address the secondary-effects doctrine," the Eleventh Circuit panel had ruled. "For this reason alone, we cannot read Reed as abrogating either the Supreme Court’s or this Circuit’s secondary-effects precedents."
Wiggins made several good arguments in his cert petition, but in the end, the Supreme Court apparently felt that the circuit conflict created by the Eleventh Circuit's ruling was not compelling enough to allow Wiggins and Bergthold to argue it before them. It now remains to be seen how Sandy Springs will attempt to put its ordinance into effect.
Pictured: Humorist John Oliver's conception of the U.S. Supreme Court justices as dog avatars