Flanigan's Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia

Case: 14-15499 Date Filed: 08/02/2016 Page: 1 of 13

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-15499
________________________

D.C. Docket No. 1:13-cv-03573-HLM

FLANIGAN’S ENTERPRISES, INC. OF GEORGIA,
FANTASTIC VISUALS, LLC,

Plaintiffs - Appellants,

MELISSA DAVENPORT,
MARSHALL G. HENRY,

Intervenors - Plaintiffs -
Appellants,

versus

CITY OF SANDY SPRINGS, GEORGIA,

Defendant - Appellee.
________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(August 2, 2016)
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Before HULL, WILSON, and ANDERSON, Circuit Judges.

WILSON, Circuit Judge:

In this appeal, we review the district court’s dismissal of two complaints that

challenge the constitutionality of a municipal ordinance prohibiting the sale, rental,

or lease of obscene material. After the benefit of briefing and oral argument, we

conclude that the Fourteenth Amendment Due Process Clause claim is foreclosed

by our prior holding in Williams v. Attorney General (Williams IV), 378 F.3d 1232

(11th Cir. 2004), and the district court properly entered judgment on the pleadings

for the City of Sandy Springs as to Intervenor-Appellant Henry’s First Amendment

claims that the law burdens his artistic expression. The district court committed no

reversible error as to any other claim properly raised on appeal. Accordingly, we

affirm.

I

On April 21, 2009, the City of Sandy Springs, Georgia (the City) enacted

into law several provisions that, inter alia, prohibit the commercial distribution of

sexual devices within the City. Multiple adult entertainment establishments and

other businesses affected by the provisions sued the City in response. In this

severed portion of that litigation, Plaintiffs-Appellants Flanigan’s Enterprises, Inc.

of Georgia (Flanigan’s) and Fantastic Visuals, LLC (Inserection) (collectively, the

Plaintiffs), as well as Intervenors-Appellants Melissa Davenport and Marshall

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Henry (collectively, the Intervenors), brought, in relevant part, a Fourteenth

Amendment Due Process Clause challenge to Ordinance 2009-04-24 (the

Ordinance), codified at section 38-120 of the City’s Code of Ordinances. 1 Section

38-120 criminalizes the commercial distribution of obscene material and defines

“[a]ny device designed or marketed as useful primarily for the stimulation of

human genital organs” as obscene. Sandy Springs, Ga., Code of Ordinances ch.

38, § 38-120(a), (c) [hereinafter § 38-120]. 2

Inserection is an adult bookstore in Sandy Springs that sells sexually explicit

materials and items, including sexual devices. Davenport suffers from multiple

sclerosis and uses sexual devices with her husband to facilitate intimacy. She

seeks to purchase sexual devices in Sandy Springs for her own use, as well as to

sell sexual devices to others in Sandy Springs who suffer from the same or a
1
In October 2009, the Plaintiffs sued the City, alleging that recent amendments to the City’s
Code of Ordinances were unconstitutional. These amendments included licensing and regulating
schemes of establishments that serve alcohol in the City, the zoning and licensure of adult
entertainment establishments and adult bookstores, and restrictions on the sale of sexual devices.
Four years later, after the City moved for summary judgment, the district court issued an order
severing the Plaintiffs’ challenge to the Ordinance’s prohibition on the sale of sexual devices
from the other pending challenges. This permitted additional affected parties to intervene in the
litigation without slowing the progress of the other challenges. In March 2014, the district court
granted Davenport and Henry’s motion to intervene.
Although Flanigan’s participated in the Notice of Appeal to this court, it neither provided
briefing of its own nor indicated that Inserection brings any claim on its behalf. “When an
appellant fails to challenge properly on appeal one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows
that the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins., 739 F.3d 678, 680
(11th Cir. 2014). In failing to provide any briefing whatsoever, Flanigan’s abandoned its appeal.
In addition, Inserection did not brief its state constitution claim on appeal, and the
Intervenors did not brief either their overbreadth or state constitution claims. Therefore, those
claims are abandoned on appeal. See id.
2
For ease of reference, we attach § 38-120 in an appendix to this opinion.
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similar condition. Henry is an artist who uses sexual devices in his artwork. He

seeks to purchase sexual devices in Sandy Springs for his own private, sexual

activity and for use in his artwork, as well as to sell his artwork in Sandy Springs.

After the Intervenors entered the litigation and filed their complaint, the City

filed an answer and moved for judgment on the pleadings pursuant to Rule 12(c) of

the Federal Rules of Civil Procedure. The district court granted the City’s motion

and entered an order upholding the Ordinance against each challenge. The

Plaintiffs and the Intervenors together filed a timely notice of appeal, arguing that

the district court erred in entering judgment in favor of the City.

II

We review de novo the district court’s entry of judgment on the pleadings

pursuant to Rule 12(c). Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002).

“Judgment on the pleadings under Rule 12(c) is appropriate when there are no

material facts in dispute, and judgment may be rendered by considering the

substance of the pleadings and any judicially noticed facts.” Id. In reviewing

whether judgment was appropriately entered, “we accept the facts in the complaint

as true and we view them in the light most favorable to the nonmoving party.”

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998). A

complaint may only be dismissed under Rule 12(c) if “it is clear that the plaintiff

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would not be entitled to relief under any set of facts that could be proved consistent

with the allegations.” See Horsley, 292 F.3d at 700.

III

The Intervenors and Inserection (collectively, the Appellants) argue that the

Ordinance is unconstitutional because it violates the Due Process Clause of the

Fourteenth Amendment.3 The Fourteenth Amendment provides: “No State shall . .

. deprive any person of life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. The Supreme Court has long held that the Due Process

Clause contains a substantive component that “bar[s] certain government actions

regardless of the fairness of the procedures used to implement them.” See, e.g.,

County of Sacramento v. Lewis, 523 U.S. 833, 840, 118 S. Ct. 1708, 1713 (1998)

(internal quotation marks omitted). The Appellants contend that they have a

fundamental right to engage in acts of private, consensual sexual intimacy, and that

the Ordinance burdens this right. The City responds that this claim is foreclosed

by our prior holding in Williams IV.

In Williams IV, the American Civil Liberties Union (ACLU) brought a

constitutional challenge against an Alabama statute that prohibited the sale of

sexual devices. See 378 F.3d at 1233. The ACLU claimed that the law violated a

3
The Intervenors raise this claim on behalf of themselves and those similarly situated.
Inserection raises this claim on behalf of its customers. For ease of reference, we refer to this
claim as belonging to the Appellants, collectively.
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fundamental right to sexual privacy, which includes a right to use the devices in the

privacy of one’s home. See id. at 1235. We concluded that the Supreme Court’s

then-recent decision in Lawrence v. Texas4 identified no such fundamental right

and, utilizing the Washington v. Glucksberg 5 analysis for defining and assessing

newly asserted fundamental rights, we concluded that our history and tradition did

not support assigning constitutional protection to a right to sell, buy, and use sexual

devices. See Williams IV, 378 F.3d at 1236, 1239–45. Consequently, we held that

the Due Process Clause does not contain a right to buy, sell, and use sexual

devices, and reversed the district court’s ruling to the contrary. See id. at 1250.

The Appellants in this case challenge a law similar to the one at issue in

Williams IV and present us with, effectively, the same arguments against its

enforcement. Under this circuit’s prior panel precedent rule, “a prior panel’s

holding is binding on all subsequent panels unless and until it is overruled or

undermined to the point of abrogation by the Supreme Court or by this court sitting

en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (per curiam) (internal

quotation marks omitted). The Appellants urge this panel to overrule Williams IV

in light of the Supreme Court’s subsequent decisions in United States v. Windsor6

4
539 U.S. 558, 123 S. Ct. 2472 (2003).
5
521 U.S. 702, 720–21, 117 S. Ct. 2258, 2268 (1997).
6
570 U.S. ___, 133 S. Ct. 2675 (2013).
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and Obergefell v. Hodges.7 Their strongest argument is that time has shown that

Williams IV erred in concluding Lawrence did not announce a constitutional right

to engage in acts of private, consensual sexual intimacy, and the Court has changed

its analysis of privacy-based constitutional rights such that the remainder of

Williams IV cannot stand.

To the extent Lawrence was ambiguous, the Appellants explain, Windsor

clarified that Lawrence announced a new constitutional right and that that right

could be implicated directly or indirectly. In Windsor, the Court assessed the

constitutionality of the Defense of Marriage Act (DOMA), a federal law that, in

relevant part, amended the Dictionary Act to define “marriage” as “a legal union

between one man and one woman as husband and wife.” See Windsor, 133 S. Ct.

at 2683; 1 U.S.C. § 7. The Court explained that DOMA’s definition was

unconstitutional, inter alia, because it impermissibly interfered with the federal

constitutional right to “[p]rivate, consensual sexual intimacy”—a right the Court

indicated it had articulated in Lawrence. See Windsor, 133 S. Ct. at 2692. This

holding made clear that the Texas sodomy statute and DOMA’s definitional

provision implicated the same liberty interest and that the scope of this liberty

interest could extend to invalidate a law that did not directly regulate sexual

conduct. Although DOMA did not criminalize any sexual act—it merely supplied

7
576 U.S. ___, 135 S. Ct. 2584 (2015).
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a definition to inform other laws—the Court still held it to be unconstitutional

because the differentiation it imposed “demean[ed] the couple, whose moral and

sexual choices the Constitution protects.” Id. at 2694 (emphasis added) (citing

Lawrence, 539 U.S. 558, 123 S. Ct. 2472). Thus, the Appellants conclude,

Windsor clarified not only that Lawrence announced a right to “[p]rivate,

consensual sexual intimacy,” see id. at 2692, but also that this liberty interest may

be infringed by laws that seek to control moral or sexual choices, see id. at 2694. 8

For this reason, the Appellants argue that we erred in ruling that Lawrence did not

create a “due process right of consenting adults to engage in private intimate sexual

conduct.” See Williams IV, 378 F.3d at 1236.9

8
We note that the district court did confuse the relationship between due process and equal
protection when it stated that “Windsor does not change the Supreme Court’s jurisprudence on
Fourteenth Amendment substantive due process because Windsor is a Fifth Amendment equal
protection, and not a due process, case.” Flanigan’s Enters., Inc. v. City of Sandy Springs, No.
1:13-cv-03573-HLM, slip op. at 47 (N.D. Ga. Oct. 20, 2014). Constitutional rights are not
clause-specific. The rights secured under the promise of equal protection “may be instructive as
to the meaning and reach” of due process, and vice versa; “[i]n any particular case one Clause
may be thought to capture the essence of the right in a more accurate and comprehensive way,
even as the two Clauses may converge in the identification and definition of the right.”
Obergefell, 135 S. Ct. at 2603; accord id. at 2603–04; Lawrence, 539 U.S. at 575, 123 S. Ct. at
2482. Consequently, though the Windsor Court concluded that the relevant provision of DOMA
violated the equal protection component of the Fifth Amendment’s Due Process Clause, the
constitutional liberty interest identified was not limited to that holding, and its effects on our
jurisprudence are not confined to analyses under the Fifth Amendment. See Windsor, 133 S. Ct.
at 2695.
9
The Appellants also cite decisions from our sister circuits holding that Lawrence recognized
a substantive right to private, consensual sexual intimacy. See Reliable Consultants, Inc. v.
Earle, 517 F.3d 738, 744 (5th Cir. 2008) (describing the right articulated in Lawrence as a “right
to engage in consensual intimate conduct in the home free from government intrusion”); see also
Latta v. Otter, 771 F.3d 456, 466 (9th Cir. 2014) (describing Lawrence as “recognizing a due
process right to engage in intimate conduct”); Cook v. Gates, 528 F.3d 42, 55 (1st Cir. 2008)
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Additionally, the Appellants contend, Williams IV cannot stand in light of

the Supreme Court’s new instruction on how to define and analyze privacy-based

rights. In Obergefell, the Court explained that a refined Glucksberg analysis

applies to define privacy-based rights because Glucksberg’s requirement that rights

“be defined in a most circumscribed manner” was appropriate for the context in

which that test arose but was “inconsistent with the approach th[e] Court ha[d]

used in discussing other fundamental rights, including marriage and intimacy.”

See Obergefell, 135 S. Ct. at 2602; cf. id. at 2620–21 (Roberts, C.J., dissenting).

Those asserted rights that reflect “personal choices central to individual dignity and

autonomy, including intimate choices that define personal identity and beliefs”—

privacy-based rights—need not be described “in a most circumscribed manner.”

See id. at 2597, 2602 (majority opinion). Accordingly, the Appellants conclude,

the remainder of Williams IV—in which we defined the asserted interest in the

narrow, circumscribed manner Glucksberg then required, see Williams IV, 378

F.3d at 1242—is no longer good law because the analysis upon which it relied is in

conflict with the Supreme Court’s instruction in Obergefell.

In sum, the Appellants would have us conclude today that Windsor’s

clarification of Lawrence and Obergefell’s adjustment of Glucksberg effected

(stating that “Lawrence recognized a protected liberty interest for adults to engage in consensual
sexual intimacy in the home”).
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substantive changes in constitutional law that undermine Williams IV to the point

of abrogation, such that we are free to decide this appeal without Williams IV as

binding precedent.

Although we are persuaded that Windsor and Obergefell cast serious doubt

on Williams IV, we are unable to say that they undermine our prior decision to the

point of abrogation. See In re Lambrix, 776 F.3d at 794. We did not review

Williams IV as an en banc court at the time it was decided, see 122 F. App’x 988

(11th Cir. 2004) (mem.); the Supreme Court denied the petition for writ of

certiorari, see 543 U.S. 1152, 125 S. Ct. 1335 (2005) (mem.); and the Court has not

expressly held in a subsequent decision that there is a right to engage in acts of

private, consensual sexual intimacy, within which would fall a right to buy, sell,

and use sexual devices, see United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.

2008) (“While an intervening decision of the Supreme Court can overrule the

decision of a prior panel of our court, the Supreme Court decision must be clearly

on point.” (internal quotation marks omitted)).

IV

Therefore, unless and until our holding in Williams IV is overruled en banc,

or by the Supreme Court, we are bound to follow it. Although we are sympathetic

to the Appellants’ Fourteenth Amendment Due Process claim, we are constrained

by our prior precedent in Williams IV, and we are obligated to follow it “even

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though convinced it is wrong.” See United States v. Steele, 147 F.3d 1316, 1318

(11th Cir. 1998). 10 The Appellants are free to petition the court to reconsider our

decision en banc, and we encourage them to do so.

For the reasons stated, we affirm the decision of the district court. 11

AFFIRMED.

10
With respect to Intervenor Henry’s First Amendment claims, we agree with the district
court that his art simply would not be deemed “designed or marketed as useful primarily for the
stimulation of human genital organs.” See Flanigan’s Enters., No. 1:13-cv-03573-HLM, slip op.
at 23–24. Thus, the Ordinance does not affect the creation or sale of Henry’s art, and Henry
failed to state a claim that the Ordinance violates his constitutional rights.
11
The district court committed no reversible error as to Inserection’s First Amendment
commercial speech claim, Inserection’s vagueness challenge, or the Intervenors’ Fourteenth
Amendment Equal Protection Clause claim.
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APPENDIX

The Ordinance reads as follows:

(a) A person commits the offense of distributing obscene
material when the following occurs:
(1) He sells, rents, or leases to any person any obscene
material of any description, knowing the obscene
nature thereof, or offers to do so, or possesses such
material with the intent to do so, provided that the
word “knowing,” as used in this section, shall be
deemed to be either actual or constructive
knowledge of the obscene contents of the subject
matter.
(2) A person has constructive knowledge of the
obscene contents if he has knowledge of facts
which would put a reasonable and prudent person
on notice as to the suspect nature of the material.
(3) The character and reputation for the individual
charged with an offense under this law, and the
character and reputation of the business
establishment involved may be placed in evidence
by the defendant on the question of intent to
violate this law. Undeveloped photographs,
molds, printing plats, and the like shall be deemed
obscene notwithstanding that processing or other
acts may be required to make the obscenity patent
or to disseminate it.
(b) Material is obscene if:
(1) To the average person, applying contemporary
community standards, taken as a whole, it
predominantly appeals to the prurient interest, that
is, a shameful or morbid interest in nudity, sex, or
excretion;
(2) The material taken as a whole lacks serious
literary, artistic, political, or scientific value; and

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(3) The material depicts or describes, in a patently
offensive way, sexual conduct specifically defined
as follows:
a. Acts of sexual intercourse,
heterosexual or homosexual, normal or
perverted, actual or simulated;
b. Acts of masturbation;
c. Acts involving excretory functions or
lewd exhibition of the genitals;
d. Acts of bestiality or the fondling of sex
organs of animals; or
e. Sexual acts of flagellation, torture, or
other violence indicating a
sadomasochistic sexual relationship.
(c) Any device designed or marketed as useful primarily for
the stimulation of human genital organs is obscene
material under this section. However, nothing in this
subsection shall be construed to include a device
primarily intended to prevent pregnancy or the spread of
sexually transmitted diseases.
(d) It is an affirmative defense under this section that selling,
renting, or leasing the material was done for a bona fide
medical, scientific, educational, legislative, judicial, or
law enforcement purpose.
(e) A person who commits the offense of distributing
obscene material shall be guilty of a violation of this
Code.

Sandy Springs, Ga., Code of Ordinances ch. 38, § 38-120.

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