Will Sandy Springs Vote To Ditch Sex Toy Ordinance?

SANDY SPRINGS, Ga.—The South has a reputation for doing things slowly, but the city council in Sandy Springs, Ga., has moved at what must be, for them, the speed of light in putting the deletion of its "sexual devices" ordinance on the agenda for tonight's council meeting. The urgency might possibly have something to do with the fact that just one week earlier, on Tuesday, March 14, the 11th Circuit Court of Appeals stayed the August 2, 2016, ruling of its three-judge panel dismissing the lawsuit in its entirety, and granted First Amendment attorney Cary S. Wiggins' Motion for En Banc Review. The controversy stretches back to 2013, when local adult retailers Flanigan's Enterprises and Inserection filed suit against the city's Ordinance §38-120(d), part of its "Obscenity and Related Offenses" code, which itself is under the general section, "Offenses Involving Public Morals." That section of the code now reads, "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." (Originally, the ordinance also exempted retailers from being charged under the law if "that selling, renting, or leasing the material was done for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose," and apparently was changed in response to the Inserection lawsuit.) While it's unclear what "sexual devices" that last sentence of the code is meant to exempt beyond condoms, its main targets have been dildos, vibrators, pumps, cock rings, love dolls and similar products that are typically carried by adult retailers—products that local residents Melissa Davenport and Marshall Henry wanted to buy, and which ordinance impelled them to become intervenor plaintiffs in the stores' lawsuit, and now have become the primary plaintiffs. According to the article published on ReporterNewspapers.net, Davenport "says she has multiple sclerosis and uses sexual devices with her husband for sexual intimacy," while Henry is "an artist who says he uses sex toys in his artwork." As AVN noted in its earlier article, the main basis for the lawsuit is the city's violation of the plaintiffs' First and Fourteenth Amendment rights to liberty and privacy, and charge that the ordinance, as a "content-based restriction," should be examined under strict scrutiny, arguing that the ordinance does not support a "compelling state interest," and  is "not narrowly tailored to serve that interest." "Plaintiffs have a liberty of privacy guaranteed by the Georgia Constitution that includes private, intimate, consensual sexual activity between consenting adults," the lawsuit also alleges. "This right to privacy is a fundamental constitutional right," which is "even more extensive and protective of the state’s citizens than its federal analog." All of those are actually good arguments, so it's not surprising that even a conservative district like the 11th Circuit is willing to hear argument regarding its panel's dismissal of the suit, and as the ReporterNewspapers article notes, "En banc hearings are unusual and typically reserved for major decisions." Hence, it seems likely that the 11th Circuit granted the en banc motion with an eye towards overturning the dismissal—and that would start the whole lawsuit ball rolling again... ...which might be exactly what Sandy Springs is hoping to avoid. The reason? The city has been represented in the suit by one Scott D. Bergthold, a conservative attorney based in Chattanooga, TN, who's made a closet industry of offering municipalities around the country (but mostly in the South and Midwest) boilerplate anti-adult ordinances, and then after they're passed, offering to defend those ordinances in court when challenged—for a hefty fee, which is often paid by the city's insurance company. For example, thanks to a Bergthold-authored ordinance enacted in nearby Brookhaven, GA, a lawsuit filed by retailer Stardust, which describes itself as a "smoke shop" selling "tobacco; related accessories; gifts" but which the city claims is an adult business, has netted Bergthold nearly $300,000 in legal fees from his defense of the city—and that case is far from over. It's no coincidence that Berthold's firm's web address is adultbusinesslaw.com/www. So perhaps it's not too surprising that in addition to the evening's agenda item to delete its "sexual devices" ordinance, there will also be an executive session "to discuss litigation"—and that session will take place at the beginning of the council meeting, rather than at its end, as is usually the case. And what might that "litigation" be that will be discussed in executive session? The ReporterNewspapers article gives a clue: "In yet another lawsuit, a former insurer for the city has tried to get out of paying to defend some of the adult-business lawsuits. [City Attorney Wendell] Willard previously said the insurer likely would have to pay the city’s costs in the sex-toy battle, depending in part on the lawsuit’s outcome." And who's the attorney in those "adult-business lawsuits"? Three guesses. While it's unclear if the deletion of the "sexual devices" ordinance will make the Davenport/Henry lawsuit moot, one thing is clear: Cities that have some "moral objection" to adult businesses had better prepare themselves for some major tax increases, since insurers will likely be growing extremely wary about funding such unconstitutional crusades—and about making the attorneys who defend such suits into multi-millionaires.