SANDY SPRINGS, Ga. – A federal appeals court this week declined to overturn a district court’s decision that there is no constitutional right to sell sex toys, at least in one affluent Atlanta suburb.
For now.
In rendering its decision, a three-judge panel sitting for the 11th Circuit Court of Appeals said that in order to overturn the lower court’s decision, it would have to reverse another 11th Circuit panel’s 2004 ruling in a similar Alabama case. The judges were unwilling to take that step.
However, the current panel’s ruling implied the plaintiffs would be granted an en banc hearing should they request one. An en banc hearing — requiring all judges for the circuit to hear the case — would prevent one three-judge panel from overturning a ruling made by another three-judge panel in the same circuit.
In the unanimous decision in the case at hand, Judge Charles Wilson wrote the panel was “sympathetic to the appellants’ Fourteenth Amendment Due Process claim. [But] …we are obligated to follow [the previous ruling] even though convinced it is wrong [emphasis added]. The appellants are free to petition the court to reconsider our decision en banc, and we encourage them to do so.”
At issue in the present case is an ordinance passed soon after Sandy Springs incorporated in 2005. The law bans the sale, rental or leasing of “obscene” materials and devices, including sex toys. Exceptions may be made for “bona fide medical, scientific, educational, legislative, judicial or law enforcement purpose,” according to the ordinance.
In 2014, two stores and a gentlemen’s club that allows nude dancing sued the city on the grounds the ordinance violates the due process clause of the 14th Amendment to the U.S. Constitution. They were joined by a woman who claims the ordinance places an unfair burden on her need to use a vibrator during sex in order to overcome the limitations of multiple sclerosis. A fourth plaintiff, an artist who uses sex toys in his works, additionally claimed the ban violates his First Amendment right to expression.
The case is Flanigan’s Enterprises v. City of Sandy Springs.
