Last time was a nice, gentle toe into the warm, shallow waters of law. Get your swim caps and flippers on, because this time, we’re diving into the deep end with strip clubs and the First Amendment.
1. She Getting Crunk in the Club, I Mean She Work.
Strip clubs are great–they’re Petri dishes for Constitutional arguments. They take what would ordinarily be a straightforward case of municipal zoning ordinance appeal and turn it into a twelve-year web of intertwined First Amendment lawsuits. That’s right–adult entertainment is and has been the vanguard of your right to freedom of expression. Think about that next time you decide how much to tip.
Let’s get concrete. This is Flashers, an adult entertainment facility.
Flashers is closed.
Let’s take a look at some reviews:
“Very small intimate, a lot of variety!”
“If you must go, do not buy drinks or anything else with a credit card.”
“The employees were having there [sic] own conversation and didn’t even acknowledge us.”
Quality of experience aside, Flashers is important as one of four adult businesses targeted by the City of Sandy Springs, GA. The others were the strip clubs Mardi Gras and Main Stage/The Coronet Club, and Inserection, an adult bookstore and novelty item emporium. These four businesses took their fight to both the Georgia and United States Supreme Court on First Amendment grounds, lost, and face closure. Let’s look at how we got here.
2. ATL Sorry, Done Disrespect It.
Flashers was issued a liquor license by Fulton County prior to the City of Sandy Springs forming in 2005. Upon its formation, Sandy Springs quickly surveilled the adult businesses within its city limits, and found evidence of prostitution and, perhaps less surprisingly, public lewdness and intoxication. After these findings, Sandy Springs issued ordinances banning the sale of alcohol at adult establishments and limiting the areas in which adult businesses could operate.
Some of you reading are shaking your heads knowingly at this point, but for the rest of you, liquor is what makes strip clubs work. Without it, money doesn’t exchange hands. There’s this thing called the internet, it turns out, and you can find just about any specific point of appeal for free within minutes, so to get people to spend money on titillation takes some judicious application of lubricant in the form of liquor. Taking away a strip club’s liquor license kills the strip club.
Obviously, Flashers took these ordinances as an attack, and did what any adult business would do–allied with other adult businesses and filed lawsuits in state and federal court to challenge the constitutionality of the ordinances as attacks on the First Amendment right to freedom of expression. And truly, Mardi Gras, Main Stage/The Coronet Club, and Inserection stood tall and proud as allies in a long, stiff fight.
3. To the Window, To the Wall, To the Supreme Court.
By December 2011, neither the federal nor state court cases had reached a conclusion, and Sandy Springs was losing its patience. Sandy Springs filed a civil suit against each of the four adult businesses for habitual violations of the city’s vice ordinances. The city made its intentions clear by seeking an injunction to shut down each business for another violation. It was, as they say, on, but far from over.
Five years later, the federal suit ended with a ruling in Sandy Springs’ favor, upholding the ordinances and declaring them constitutional. The appeal affirmed the judgment. 1 Flashers and their colleagues appealed again to the Supreme Court of the United States, which declined to hear the case.
Meanwhile, the state court was singing the same song. The case was appealed all the way to the Georgia Supreme Court. 2 The city ordinances were upheld.
4. Get Low.
Inserection managed to stay open–in a related and somewhat intertwined case, Inserection managed to have a city ordinance banning the sale of sex toys overturned. 3 They are, as of this writing, still in business, and their shopping center has a new liquor store to complement Inserection’s services. So there’s that.
However, the clubs fared worse. By September 2018, the clubs had exhausted their appeals, and were forced to comply with the city ordinances after twelve years. Unable to serve alcohol, management decided that the clubs were no longer able to turn a profit and shut down. Flashers filed a federal suit against Sandy Springs for an allegedly illegal 2016 search and shutdown, but given that the club has closed, the case is academic.
Speaking of academic, now that you have the history of this case, next week we’ll go into what exactly the courts decided, and how zoning and alcohol ordinances affect First Amendment rights. Until then, sit. Stay. Speak. Good dog.
- CITY OF RENTON ET AL.v. PLAYTIME THEATRES, INC., ET AL., 475 U.S. 41 (1986) and CITY OF LOS ANGELES v. ALAMEDA BOOKS, INC., et al., 535 U.S. 425 (2002). My Property Law class managed to discuss these similar zoning-of-adult-business cases entirely in euphemisms and double entendre to protect the innocence of my classmate’s young daughter, of whom he had custody that evening.
- Christian Boone, “Sandy Springs suit puts strip clubs ‘on notice,'” The Atlanta Journal-Constitution, December 15, 2011, https://www.ajc.com/news/local/sandy-springs-suit-puts-strip-clubs-notice/2nst56bD85FVFQ81Wy3o8J/.
- Arielle Kass, “Georgia Supreme Court hears Sandy Springs strip club case,” The Atlanta Journal-Constitution, March 05, 2018, https://www.ajc.com/news/local-govt–politics/georgia-supreme-court-hears-sandy-springs-strip-club-case/o57MvFBXZARziqABTBlyuI/.
- Bill Rankin, “Court: Sandy Springs can ban alcohol sales at strip clubs,” The Atlanta Journal-Constitution, June 18, 2018, https://www.ajc.com/news/crime–law/court-sandy-springs-can-ban-alcohol-sales-strip-clubs/vw6x8W2ng8SrbkRtcp3SrK/.
- Arielle Kass, “Three strip clubs close in Sandy Springs after 12-year legal battle,” The Atlanta Journal-Constitution, September 14, 2018, https://www.ajc.com/news/local-govt–politics/three-strip-clubs-close-sandy-springs-after-year-legal-battle/NBtbgdypc2AhvY3KEGBpGP/.
- Arielle Kass, “DEEPER FINDINGS: With nude dancing shuttered in Sandy Springs, one club fights back,” The Atlanta Journal-Constitution, December 21, 2018, https://www.ajc.com/news/local-govt–politics/with-nude-dancing-shuttered-sandy-springs-one-club-fights-back/W1BPvjY7E6sfUQ4eOXqwkK/.
- Check out the unreported 11th Circuit opinion in FLANIGAN’S ENTERPRISES, INC. OF GEORGIA, d.b.a. Mardi Gras, FANTASTIC VISUALS, LLC, d.b.a. Inserection, 6420 ROSWELL RD., INC., d.b.a. Flashers, and MARSHALL G. HENRY, et al. v. CITY OF SANDY SPRINGS, GEORGIA, No. 16-14428 (11th Cir. August 14, 2017). Pay special attention to footnote 8, “The City also asserts that Inserection lacks standing.”
- Check out MAXIM CABARET, INC. d/b/a MAXIM CABARET et al. v. CITY OF SANDY SPRINGS, GEORGIA, No. S18A0496 (Ga. June 18, 2018).
- See FLANIGAN’S ENTERPRISES, INC. OF GEORGIA, Fantastic Visuals, LLC, Melissa Davenport, Marshall G. Henry v. CITY OF SANDY SPRINGS, GEORGIA, 868 F.3d 1248 (2017).