Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices. Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for challenging regulation of adult businesses.

Appellants in the case claimed that the Sandy Springs ordinance violated their substantive due process right to privacy. Appellants included an adult bookstore that sells sexually explicit materials and items, including sexual devices, and a woman suffering from multiple sclerosis who uses sexual devices with her husband to facilitate intimacy. Although expressing sympathy with appellants’ claims, the court held that it could not break from a 2004 11th Circuit decision that held that privacy-based rights, including the right to buy, sell and use sexual devices, were not fundamental rights under the Constitution, and affirmed the district court’s dismissal of the case.

Appellants encouraged the court to reconsider its analysis of privacy-based rights based on the Supreme Court’s recent decisions in United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12 (2013) and Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. ___ (2015). Appellants contended that these decisions clarified the existence of a fundamental right to engage in acts of private, consensual sexual intimacy. However, even though the court characterized its 2004 decision as “wrong,” the court found it could not overrule its prior holding absent the Supreme Court’s express recognition of privacy as a fundamental right.

Although circuit precedent prevented the 11th Circuit from recognizing adult businesses as having protection under the due process clause, due process protection of privacy exists in other circuits and may not be far off in the 11th Circuit (the court actually encouraged the appellants to have their decision reviewed en banc). If privacy rights are afforded fundamental rights status under the Due Process Clause, land use and zoning restrictions related to adult businesses may be challenged based on more than First Amendment claims. Whereas local governments may defeat First Amendment challenges using the “secondary effects doctrine,” which permits some burden on speech when the regulation targets the negative effects of speech and not the speech itself, claims that land use and zoning restrictions violate the Due Process Clause will require a heightened standard of review that could prove difficult for some local governments to withstand.

Flanigan’s Enterprises, Inc. v. City of Sandy Springs, No. 14-15499, 2016 WL 4088731 (11th Cir., Aug. 2, 2016).