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

Filing

Opinion issued by court as to Appellants 6420 Roswell Rd., Inc., Fantastic Visuals, LLC and Flanigan's Enterprises, Inc of Georgia. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-14428

Date Filed: 08/14/2017

Page: 1 of 21

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14428
________________________
D.C. Docket No. 1:09-cv-02747-LMM

FLANIGAN'S ENTERPRISES, INC. OF GEORGIA,
d.b.a. Mardi Gras,
FANTASTIC VISUALS, LLC,
d.b.a. Inserection,
6420 ROSWELL RD., INC.,
d.b.a. Flashers,
Plaintiffs - Appellants,
MARSHALL G. HENRY, et al.,
Intervenor Plaintiffs,
versus
CITY OF SANDY SPRINGS, GEORGIA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 14, 2017)

Case: 16-14428

Date Filed: 08/14/2017

Page: 2 of 21

Before ED CARNES, Chief Judge, and ROSENBAUM and DUBINA, Circuit
Judges.
PER CURIAM:
Plaintiffs-Appellants Flanigan’s Enterprises, Inc. of Georgia (d.b.a. “Mardi
Gras”) (“Mardi Gras”) and 6420 Roswell Rd., Inc. (d.b.a. “Flashers”) (“Flashers”),
are strip clubs located in the once-unincorporated territory of Fulton County,
Georgia (the “County”), now a part of the City of Sandy Springs, Georgia (the
“City”).

Plaintiff-Appellant Fantastic Visuals, LLC (d.b.a. “Inserection”)

(“Inserection”), is a sex shop also located in the City. Following a history of
litigation with the County, Mardi Gras and Flashers believed, along with
Inserection (collectively, “Plaintiffs”), that they were unfairly subjected to a
number of the City’s adult-entertainment ordinances, so they asserted a mélange of
constitutional claims against the City.
The district court entered summary judgment against Plaintiffs on some
claims. After a bench trial on a number of Plaintiffs’ remaining claims, the court
entered a final judgment against Plaintiffs on those claims. Plaintiffs appeal,
asking us to announce three new and substantial changes in the law governing their
right to free speech and expression under both the U.S. and Georgia Constitutions.
For the reasons below, we decline Plaintiffs’ invitation and affirm the district
court’s judgment.
I.
2

Case: 16-14428

Date Filed: 08/14/2017

Page: 3 of 21

A.
This appeal is the latest iteration of a litigation saga that traces its origins to
1997, when the County amended its code to prohibit the sale and consumption of
alcoholic beverages in adult-entertainment establishments featuring live nude or
partially nude performances. See Flanigan’s Enters., Inc. of Ga. v. Fulton County,
Ga. (“Flanigan’s I”), 242 F.3d 976, 978-81 (11th Cir. 2001). The following year,
Mardi Gras and Flashers, along with other plaintiffs, filed federal suits against the
County, claiming that the alcohol ban violated their constitutional rights. See id. at
981.
The cases eventually made their way to us, and we found that, in light of
well-established precedent, the alcohol ban was a content-neutral regulation of
expressive conduct subject to the test established in United States v. O’Brien, 391
U.S. 367 (1968). See Flanigan’s I, 242 F.3d at 982-84. We stated, “Under
O’Brien, an ordinance is valid if: (1) it serves a substantial interest within the
power of the government; (2) the ordinance furthers that interest; (3) the interest
served is unrelated to the suppression of free expression; and (4) there is no less
restrictive alternative.” Id. at 984 (citing O’Brien, 391 U.S. at 377).
Though we concluded that the County easily satisfied the first, third, and
fourth prongs of the test, see id. at 984-85, the plaintiffs ultimately prevailed
because the County failed to establish the second prong. For that prong, we
3

Case: 16-14428

Date Filed: 08/14/2017

Page: 4 of 21

recognized that “[t]he avoidance of criminal activity, protection of property values,
and avoidance of community blight are undeniably important” government
interests. Id. at 985. But we also determined that the County failed to demonstrate
that it reasonably relied on evidence showing that the alcohol ban furthered those
interests because “the [C]ounty’s own studies negated the very interests it
purportedly sought to prevent.” Id. at 985-87. We ruled that the County was not
permitted to reject those studies and rely instead on “studies from different cities
and different time periods.”

Id. at 987.

So we declared the alcohol ban

unconstitutional. See id.
Nine years later, the plaintiffs from Flanigan’s I, including Mardi Gras and
Flashers, came back for another round, and our decision in Flanigan’s Enterprises,
Inc. of Georgia v. Fulton County, Georgia (“Flanigan’s II”), 596 F.3d 1265 (11th
Cir. 2010), resulted.

In the wake of Flanigan’s I, the County had passed

essentially the same alcohol ban, except that it was supported by a stronger preenactment evidentiary record. See id. at 1270-74. Upon reviewing this record, we
concluded, “This time around, the County relied on ample statistical, surveillance,
and anecdotal evidence . . . [to] support the County’s efforts to curb the negative
secondary effects of alcohol and live nude dancing in its communities.” Id. at
1269. So we found that the second prong of the O’Brien test was satisfied, but we

4

Case: 16-14428

Date Filed: 08/14/2017

Page: 5 of 21

still remanded the case to the district court for further proceedings with respect to
other issues. See id. at 1276-83.
In December 2005, while the litigation that led to our decision in Flanigan’s
II was ongoing, the City of Sandy Springs came into existence as a municipality
within the County.

That same month, the City promulgated a number of

regulations covering adult-entertainment establishments, including a ban on
alcoholic beverages in adult-entertainment establishments.

In enacting these

regulations, the City reviewed a robust legislative record detailing the adverse
secondary effects of adult-entertainment establishments.

Over time, the City

enacted additional adult-entertainment regulations and amended some of its
existing ones.
B.
Mardi Gras, Flashers, and Inserection are businesses located within the City.
Mardi Gras and Flashers operate establishments where dancers perform in the nude
and where alcohol is sold and served to patrons; they continue to serve alcohol,
despite the City’s ban, pursuant to a consent agreement. Inserection is both a store
that sells sexually explicit media, sexual devices, and other sex-related products,
and an arcade at which patrons can pay to view sexually explicit videos.
Plaintiffs filed the instant suit against the City in the U.S. District Court for
the Northern District of Georgia, claiming that various provisions of the City’s
5

Case: 16-14428

Date Filed: 08/14/2017

Page: 6 of 21

Alcohol Code, Adult Zoning Code, and Adult Licensing Code violated a number
of their rights under the U.S. and Georgia Constitutions.

After the parties

conducted discovery, the City moved for summary judgment.
The district court granted summary judgment in favor of the City on various
claims that Plaintiffs have not raised on appeal, but it denied the City’s summaryjudgment motion with respect to other claims. 1

As relevant to this appeal,

Plaintiffs argued in opposition to the City’s motion that a number of the adultentertainment ordinances challenged under the First Amendment to the U.S.
Constitution failed strict scrutiny and that even if the ordinances were instead
subject to intermediate scrutiny, they failed that standard as well. The district court
by and large rejected this argument. But it nevertheless ruled that the relevant
claims were not fit for adjudication by way of summary judgment because factual
issues underlying the court’s application of intermediate scrutiny remained.
Plaintiffs also challenged the ordinances under the Free Speech Clause of the
Georgia Constitution on substantially the same grounds.

On these claims,

however, the court entered judgment for the City.

1

Prior to ruling on the motion for summary judgment, the court severed Plaintiffs’ claims
challenging the City’s ordinance that prohibited the sale of sexual devices in the City. Those
severed claims were litigated separately, and eventually they became the subject of this Court’s
decision in Flanigan’s Enterprises, Inc. of Georgia v. City of Sandy Springs, Georgia, 831 F.3d
1342 (11th Cir. 2016), which has been vacated in light of the Court’s decision to review the case
en banc, see Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs, Ga., --- F.3d ----, No. 1415499, 2017 WL 975958 (Mem) (11th Cir. Mar. 14, 2017).
6

Case: 16-14428

Date Filed: 08/14/2017

Page: 7 of 21

Later, the court conducted a four-day bench trial on a small group of
remaining claims that Plaintiffs still wished to prosecute. Ultimately, the district
court issued its findings of fact and conclusions of law and entered final judgment
in favor of the City.
II.
Plaintiffs appeal both the entry of summary judgment and the judgment
entered after the bench trial. A district court’s entry of summary judgment is
subject to a de novo standard of review on appeal. See Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1284 (11th Cir. 1997). Summary judgment
is properly entered if the record shows that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a), (c).
When a district court enters judgment after a bench trial, we generally
review the district court’s conclusions of law de novo and findings of fact for clear
error. See Tartell v. S. Fla. Sinus & Allergy Ctr., Inc., 790 F.3d 1253, 1257 (11th
Cir. 2015). But while, in the typical case, “we review district court factfindings
only for clear error, . . . First Amendment issues are not ordinary.” ACLU of Fla.,
Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1203 (11th Cir. 2009). So in the
context of First Amendment claims, we review findings of “constitutional facts,”

7

Case: 16-14428

Date Filed: 08/14/2017

Page: 8 of 21

as opposed to “ordinary historical facts,” de novo. Id. (citations and internal
quotation marks omitted).
III.
On appeal, Plaintiffs argue that the district court erred in granting judgment
in favor of the City on various claims brought under the First Amendment to the
U.S. Constitution. According to Plaintiffs, these claims challenge ordinances that
are content based. Plaintiffs acknowledge that if precedent predating Reed v. Town
of Gilbert, Arizona, 135 S. Ct. 2218 (2015), applied, the district court may have
been correct in subjecting these ordinances to intermediate scrutiny. But they
contend that Reed changed the applicable law so that the ordinances should have
been subjected to strict scrutiny. Mardi Gras and Flashers also argue that, even if
the ordinances are not subject to strict scrutiny, they still fail the proportionality
test set forth by Justice Kennedy in his concurrence in City of Los Angeles v.
Alameda Books, Inc., 535 U.S. 425 (2002)—a test that they claim constitutes
binding law in this Circuit. We reject both of these arguments.
A.
We begin our discussion of Plaintiffs’ Reed argument by reviewing the state
of the law before Reed was decided. The ordinances that Plaintiffs challenge
regulate freedom of speech and expression in the adult-entertainment context. On
their face, the ordinances may appear to be content based because they target adult
8

Case: 16-14428

Date Filed: 08/14/2017

Page: 9 of 21

entertainment; so if we were applying general principles of First Amendment law,
the ordinances would be subjected to strict scrutiny.

See Wollschlaeger v.

Governor, State of Fla., 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc) (“Contentbased restrictions on speech normally trigger strict scrutiny.”).
Yet under equally well-established Supreme Court and Eleventh Circuit
precedent, adult-entertainment ordinances are not treated like other content-based
regulations. See Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, Fla.
(“Peek-A-Boo II”), 630 F.3d 1346, 1353-54 (11th Cir. 2011). Two strands of case
law, often intertwined, embody this exception: (1) the zoning strand, which deals
with ordinances that regulate land use for adult-entertainment businesses, such as
stores that sell pornography and theatres that play pornography; and (2) the publicnudity strand, which deals with ordinances that ban public nudity as a general
matter and thereby indirectly regulate nude dancing.2
These two strands of case law are part of the “secondary-effects doctrine,”
which we have summarized as follows:
Zoning ordinances that regulate the conditions under which sexually
oriented businesses may operate are evaluated as time, place, and
manner regulations, following a three-part test set forth by the
Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S.
41, 46–50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) and reaffirmed in
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 448, 122 S.
Ct. 1728, 152 L. Ed. 2d 670 (2002). Content-neutral public nudity
2

The City’s ban on alcohol in nude-dancing establishments falls within this second
strand of case law. See Flanigan’s I, 242 F.3d at 983-84.
9

Case: 16-14428

Date Filed: 08/14/2017

Page: 10 of 21

ordinances, by contrast, involve expressive conduct and must
therefore be measured against a four-part test set forth in United
States v. O’Brien, 391 U.S. 367, 376–77, 88 S. Ct. 1673, 20 L. Ed. 2d
672 (1968), and applied in the context of adult entertainment in
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567, 111 S. Ct. 2456, 115
L. Ed. 2d 504 (1991), and in City of Erie v. Pap’s A.M., 529 U.S. 277,
289, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000).
Peek-A-Boo II, 630 F.3d at 1354 (footnote omitted).
The zoning line of precedent requires courts to engage in a three-step inquiry
to evaluate the constitutionality of a provision under the First Amendment. First, a
court determines whether a challenged zoning ordinance is an invalid total ban on
any given type of adult-entertainment business activity or is instead a time, place,
and manner regulation. Second, if the ordinance is a time, place, and manner
regulation, the court determines whether the ordinance should be subjected to
intermediate or strict scrutiny. And third, if intermediate scrutiny applies, then the
court assesses whether the ordinance serves a substantial government interest and
allows for reasonable alternative channels of communication. See Peek-A-Boo
Lounge of Bradenton, Inc. v. Manatee County, Fla. (“Peek-A-Boo I”), 337 F.3d
1251, 1264 (11th Cir. 2003).
At step two of this analysis, the court decides whether to apply intermediate
or strict scrutiny based on the government’s interest in enacting the challenged
ordinance. If the government sought to restrict the adult-entertainment-related
speech because of the speech’s content, then the ordinance must be evaluated
10

Case: 16-14428

Date Filed: 08/14/2017

Page: 11 of 21

under strict scrutiny. See id. at 1264-65 & n.14. But if the government intended to
combat the “secondary effects” of adult entertainment in the surrounding
community—i.e., increased crime, decreased property values, etc.—then the
ordinance is held to intermediate scrutiny.

Id.

In other words, intermediate

scrutiny applies if the ordinance can be “justified without reference to the content
of the regulated speech.” Renton, 475 U.S. at 48 (emphasis in original; internal
quotation marks and citations omitted). It is this part of this test from which the
term “secondary-effects doctrine” is derived.
The framework for analyzing public-nudity ordinances is similar. The first
step is substantially the same as the second step of the zoning framework: the court
asks whether the government’s purpose in enacting the ban on public nudity is
related to the suppression of the erotic message conveyed by nude dancing. See
Flanigan’s I, 242 F.3d at 983. If it is, then the ban is subject to strict scrutiny; but
if the ban is motivated by some other purpose, then the O’Brien test, which is less
restrictive than strict scrutiny, applies.

See id.

Under the O’Brien test, “an

ordinance is valid if: (1) it serves a substantial interest within the power of the
government; (2) the ordinance furthers that interest; (3) the interest served is

11

Case: 16-14428

Date Filed: 08/14/2017

Page: 12 of 21

unrelated to the suppression of free expression; and (4) there is no less restrictive
alternative.” Id. at 984. 3
Plaintiffs contend the Supreme Court’s recent decision in Reed altered the
landscape of First Amendment jurisprudence so radically that it uprooted the
secondary-effects doctrine. The Supreme Court in Reed considered whether a
municipal sign code improperly treated signs differently, depending on the
category into which the sign fell, such as “ideological,” “political,” or “temporary
directional.” 135 S. Ct. at 2224-25. The Ninth Circuit had held that the code was
content neutral because the town adopted the code not based on any disagreement
the town had with the different types of regulated content, but rather based on
interests unrelated to content. See id. at 2226. The Ninth Circuit thus subjected
the code to a lower level of scrutiny. See id.
The Supreme Court reversed, concluding that the sign code was “content
based on its face” because the code’s restrictions applied to signs differently,
“depend[ing] entirely on the communicative content of the sign.” Id. at 2227. The
Court made clear that “[g]overnment regulation of speech is content based if a law
applies to particular speech because of the topic discussed or the idea or message
3

The Supreme Court has articulated at least two reasons why sexually explicit speech
(and expression) is treated differently under the First Amendment than other types of contentbased speech are treated: (1) sexually explicit speech is associated with harmful secondary
effects in a way that other protected speech typically is not, and (2) sexually explicit speech is
less valuable to our society than other types of protected speech. See Free Speech Coal., Inc. v.
Att’y Gen. U.S., 825 F.3d 149, 175-76 (3d Cir. 2016) (Rendell, J., dissenting).
12

Case: 16-14428

Date Filed: 08/14/2017

Page: 13 of 21

expressed,” and the Court reiterated the long-standing principle that content-based
laws are subject to strict scrutiny. Id. In addition, the Court expressly rejected the
Ninth Circuit’s finding that a court could rely on the town’s justification for
enacting the sign code when conducting “content-neutrality analysis”: “A law that
is content based on its face is subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or lack of ‘animus
toward the ideas contained’ in the regulated speech.”

Id. at 2228 (citation

omitted); see also id. (“In other words, an innocuous justification cannot transform
a facially content-based law into one that is content neutral.”).
There is no question that Reed has called into question the reasoning
undergirding the secondary-effects doctrine.

The secondary-effects doctrine

allows a content-based, adult-entertainment-related law to be subjected to less than
strict scrutiny as long as the law can be justified by a legitimate interest in
combating the harmful secondary effects of adult entertainment. The majority
opinion in Reed, of course, rejected the lower court’s reliance on the sign code’s
justification in conducting content-neutrality analysis; the Court also declared that
content-based laws should be subjected to strict scrutiny.

13

Case: 16-14428

Date Filed: 08/14/2017

Page: 14 of 21

But significantly, the majority opinion in Reed did not address the
secondary-effects doctrine.4

For this reason alone, we cannot read Reed as

abrogating either the Supreme Court’s or this Circuit’s secondary-effects
precedents. The rule is simple: “If a precedent of th[e Supreme] Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls,
leaving to th[e Supreme] Court the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)
(alterations added); see also Fla. League of Prof’l Lobbyists, Inc. v. Meggs, 87
F.3d 457, 462 (11th Cir. 1996) (“[A] prediction [that the Supreme Court will
overrule its own precedent] may be accurate, but we are not at liberty to disregard
binding case law that is so closely on point and has been only weakened, rather
than directly overruled, by the Supreme Court.” (alterations added)).
The Supreme Court’s and our secondary-effects precedents are on all fours
with the adult-entertainment regulations before us;5 Reed, which addressed a sign

4

Plaintiffs read Justice Kagan’s concurrence as advocating for a qualification of the
majority’s reasoning so that the secondary-effects doctrine could be left intact. See Reed, 135 S.
Ct. at 2238 (Kagan, J., concurring). Regardless of whether certain aspects of Justice Kagan’s
concurrence may prove to be correct, however, today we must concern ourselves with only the
holding of the majority in Reed.
5
Plaintiffs argue that some of the ordinances they challenge are not zoning ordinances
but rather content-based ordinances of other varieties that are therefore subject to strict scrutiny.
We are unpersuaded that Plaintiffs’ zoning/non-zoning dichotomy has legal force when the
ordinances in question clearly were designed to combat the adverse secondary effects of adult
entertainment.
14

Case: 16-14428

Date Filed: 08/14/2017

Page: 15 of 21

code, is not. We therefore follow the secondary-effects doctrine because it has
“direct application” in this case, notwithstanding that it may “appear[] to rest on
reasons rejected in [Reed].” Rodriguez de Quijas, 490 U.S. at 484 (alteration
added).
B.
Mardi Gras and Flashers argue also that, even if the district court properly
applied intermediate scrutiny, the court erred in not subjecting the alcohol ban to
the proportionality test articulated by Justice Kennedy in his Alameda Books
concurrence. Had the court applied this test, they assert, the court would have
found that the alcohol ban would deprive Mardi Gras and Flashers of a vital source
of income (that is, alcohol sales), rendering Mardi Gras and Flashers financially
unable to continue operating. According to Mardi Gras and Flashers, that the
alcohol ban would have put them out of business means that the ban would silence
speech in an amount disproportionate to the amount of secondary effects that the
ban would combat. And as Mardi Gras and Flashers see it, this would render the
ban unconstitutional under the proportionality test.
Justice Kennedy’s Alameda Books concurrence, which was not joined by
another Justice, explored at length his theory that, for a government to advance a
legitimate interest in combating harmful secondary effects, the government must
establish not only “that its regulation has the purpose and effect of suppressing
15

Case: 16-14428

Date Filed: 08/14/2017

Page: 16 of 21

secondary effects” (a requirement that was, by then, governing law), but also that
the regulation “leav[es] the quantity and accessibility of speech substantially
intact.” Alameda Books, 535 U.S. at 449 (Kennedy, J., concurring). We refer to
this latter requirement as the “proportionality test” because the test assesses
whether the challenged law disproportionately silences speech in order to reduce
the adverse secondary effects of that speech. See id. at 451 (“It is true that cutting
adult speech in half would probably reduce secondary effects proportionately. But
again, a promised proportional reduction does not suffice.”) (Kennedy, J.,
concurring).
Justice Kennedy concurred with the Alameda Books plurality opinion
penned by Justice O’Connor because he agreed about the quantum of evidence
necessary for the government to prove that a challenged law was motivated by a
desire to counteract adverse secondary effects. See Peek-A-Boo I, 337 F.3d at
1263-64 (explaining Alameda Books).

But Justice Kennedy expressly recognized

that the plurality’s opinion did not account for his proportionality test.

See

Alameda Books, 535 U.S. at 450 (“The plurality’s analysis does not address how
speech will fare under the city’s ordinance. As discussed, the necessary rationale
for applying intermediate scrutiny is the promise that zoning ordinances like this
one may reduce the costs of secondary effects without substantially reducing
speech.”) (Kennedy, J., concurring).
16

Case: 16-14428

Date Filed: 08/14/2017

Page: 17 of 21

This Circuit has used broad language to characterize Justice Kennedy’s
concurrence as precedential. See Peek-A-Boo I, 337 F.3d at 1264; Daytona Grand,
Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 874 n.20 (11th Cir. 2007). But,
of course, his concurrence is binding only to the extent that it can be harmonized
with the plurality’s opinion. See Marks v. United States, 430 U.S. 188, 193 (1977)
(“When a fragmented Court decides a case and no single rationale explaining the
result enjoys the assent of five Justices, the holding of the Court may be viewed as
that position taken by those Members who concurred in the judgments on the
narrowest grounds . . . .” (citation and internal quotation marks omitted)). Because
Justice Kennedy’s Alameda Books proportionality test cannot be harmonized with
the plurality’s opinion, it is not binding Supreme Court precedent.
Nevertheless, that does not mean that this Circuit has not adopted the
proportionality test as Circuit law. Decisions of this Court arguably have spoken
approvingly of the proportionality test. In Peek-A-Boo I, we stated in a footnote
that “Justice Kennedy’s controlling opinion [in Alameda Books] emphasized that
secondary effects ordinances must accomplish their goal of combating secondary
effects ‘while leaving the quantity and accessibility of speech substantially intact.’”
337 F.3d at 1274 n.23 (alteration added; citation omitted). Elsewhere in the
opinion, we explained that “[t]he key issue” under Justice Kennedy’s test “is ‘how
speech will fare’ under the ordinance.” Id. at 1263 (citation omitted). Later, in
17

Case: 16-14428

Date Filed: 08/14/2017

Page: 18 of 21

Peek-A-Boo II, we noted that the county defendant was not required “to produce
empirical evidence or scientific studies as long as it ‘advance[d] some basis to
show that its regulation has the purpose and effect of suppressing secondary
effects, while leaving the quantity and accessibility of speech substantially intact.’”
630 F.3d at 1355 (quoting Alameda Books, 535 U.S. at 449 (Kennedy, J.,
concurring)). 6 All of these statements, however, are dicta. In these cases, we did
not apply the proportionality test to reach a holding; we ruled on other grounds.
Dicta lacks binding precedential value. See Edwards v. Prime, Inc., 602 F.3d
1276, 1298 (11th Cir. 2010).
We could nevertheless adopt the proportionality test for the first time today.
Under the circumstances, though, we are not inclined to do so. That Reed has
called into question the fundamental underpinnings of the secondary-effects
doctrine, even suggesting that the doctrine may be abrogated, counsels against
extending the doctrine based on the opinion of one Supreme Court Justice in one of
his concurrences, which was based on a fact pattern not present in this case. In
Alameda Books, the Court examined a dispersal ordinance, which provided in part
that no more than one adult-entertainment establishment could operate within any

6

Plaintiffs cite Flanigan’s II and Daytona Grand as further support for their contention
that this Circuit has spoken favorably of the proportionality test, but neither of those decisions
mentions the test.
18

Case: 16-14428

Date Filed: 08/14/2017

Page: 19 of 21

given building and that adult-entertainment establishments could not be located
within a certain distance of each other. See Alameda Books, 535 U.S. at 430-31.
Here, by contrast, we have a range of regulations to consider, and some have
functions that are quite different from dispersal ordinances.

The question of

whether to apply the proportionality test would be a difficult one even if we were
faced with the same type of ordinance as that at issue in Alameda Books. But
today we encounter a variety of different ordinances, and we do so in a post-Reed
jurisprudential landscape.

We therefore decline to adopt Justice Kennedy’s

proportionality test.
Plaintiffs do not otherwise contest the district court’s application of
intermediate scrutiny to their federal claims. So we affirm the district court’s
judgment in favor of the City with respect to these claims. 7
IV.
Inserection separately challenges the district court’s dismissal of its claims
brought under the Free Speech Clause of the Georgia Constitution that take issue
with the ordinances that apply to Inserection because of Inserection’s status as an
“adult bookstore.” Inserection contends that these ordinances are content based
and subject to strict scrutiny and that, under Georgia law, the strict-scrutiny
analysis for an adult-entertainment regulation requires the City to prove that its
7

Because we affirm the judgment as to the federal claims on these grounds, we decline to
address the City’s issue-preclusion defense.
19

Case: 16-14428

Date Filed: 08/14/2017

Page: 20 of 21

ordinances are the “least restrictive means” of achieving the City’s goals.
Inserection argues that the City has not met this burden.
The City urges us not to reach the merits of Inserection’s argument because
Inserection failed to raise this argument before the district court. 8

Indeed,

Inserection did. The only part of Plaintiffs’ second amended complaint that refers
to a “least restrictive means” analysis is Plaintiffs’ claim relating to a lawsuit the
City filed against Plaintiffs in state court—a claim that Plaintiffs have not raised as
an issue on appeal. Inserection’s claims that the ordinances premised on the “adult
bookstore” definition fail the “least restrictive means” test have not been properly
preserved because Plaintiffs did not raise the issue below.
As a general rule, this Court does not consider issues raised for the first time
on appeal—these issues are not properly preserved for our review. See CSX
Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1336 (11th Cir. 2017). Rather, the
party seeking to raise the issue must first present it to the district court in a manner
that allows the court “an opportunity to recognize and rule on it,” and then the
party may properly present it to this Court on appeal. Id. at 1336-37 (citation and
internal quotation marks omitted).
Inserection nevertheless asks us to excuse this mistake. We recently recited
the circumstances under which a failure to properly preserve an issue may be

8

The City also asserts that Inserection lacks standing.
20

Case: 16-14428

Date Filed: 08/14/2017

Page: 21 of 21

excused on appeal, see Blue Martini Kendall, LLC v. Miami Dade County, Fla.,
816 F.3d 1343, 1349 (11th Cir. 2016), but we are unpersuaded that Inserection has
made such a showing here.
Inserection does not otherwise contest that the district court properly
dismissed its Georgia-law claims. We thus find no basis to reverse the district
court’s judgment in favor of the City on these claims.
V.
For the foregoing reasons, we AFFIRM the district court’s judgment.
AFFIRMED.

21