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March 29, 2018

U.S. Supreme Court Ditches Sex Toy Users' Cert Petition

SANDY SPRINGS, GA—One is tempted to describe the case of Melissa Davenport and Marshall G. Henry v. City of Sandy Springs, GA as one where the only winners are the attorneys—but considering that the primary counsel of record appear to be attorneys from the Stanford Law School Supreme Court Litigation Clinic, there's a good chance that even they're not being paid, much less the petitioners, who sued the city for what are described as "nominal damages," and whose petition for certiorari was just rejected by the U.S. Supreme Court. Of course, one big winner is Chattanooga, TN attorney Scott D. Bergthold, perhaps the country's foremost sexually-oriented business ordinance writer—he wrote the majority of such ordinances for Sandy Springs shortly after it was incorporated in 2005—and defender, since lots of municipalities (including Sandy Springs) have hired him to defend such ordinances in court. While no figures are available regarding how much Bergthold has earned from writing and defending anti-adult business laws, at minimum, it's in the hundreds of thousands of dollars. One of the ordinances that Bergthold wrote for Sandy Springs was its sexual device ordinance, passed in 2009, which essentially banned the sale of "sexual devices" (aka sex toys) within the city limits. This quickly prompted a lawsuit from the owners of adult clubs/retail outlets Mardi Gras, Flashers and Inserection, and also prompted Davenport and Henry, who used such devices for medical purposes, to enter the case as intervenors, looking for "nominal damages" from the city for the inconvenience it had caused them. The stores were represented by a team of First Amendment attorneys led by Cary S. Wiggins, who took the case from U.S. District Court all the way to the Eleventh Circuit Court of Appeals, though along the way, clubs Mardi Gras and Flashers settled their issues with the city, leaving Inserection to continue its challenge to the sexual device ban. But at about the same time that the Inserections/Davenport/Henry case reached the Eleventh Circuit for the first time, Sandy Springs, already smarting from the amount of tax money spent on litigation, repealed its sexual device ban, leaving little legal reason for the case to continue, and after an en banc hearing by the full Eleventh Circuit affirmed the decision of its three-judge panel to dismiss the case, Inserection dropped out, leaving only the intervenors to press the case to the U.S. Supreme Court. But even though the Eleventh Circuit's decision denying Davenport's and Henry's "nominal damages" created a split in the circuits, some of which had allowed such cases to go forward, and even awarded those damages in some cases, the high court apparently felt that the small amount being sought by the petitioners was not sufficient to trigger a Supreme Court hearing. The Supremes thus denied the cert petition this past Monday, March 26, thereby ending the case for good. Of course, the good news is that Davenport and Henry can now buy as many vibrators and other toys as they wish in Sandy Springs. The bad news is that even though Sandy Springs essentially won its case, its taxpayers will still have to pay an untold amount in legal fees, all brought about by its representatives' antipathy to sexual media in any form.

 
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