24 Pages Posted: 22 Jan 2012
Date Written: December 1, 2010
In Flanigan’s Enterprises., Inc. of Ga. v. Fulton County, Ga. (Flanigan’s I), Fulton County’s board of commissioners passed an ordinance banning the consumption of alcohol in strip clubs and the United States Court of Appeals for the Eleventh Circuit struck down the ordinance as unconstitutional. However, in Flanigan’s Enterprises, Inc. of Georgia v. Fulton County, Ga. (Flanigan’s II), Fulton County passed an almost identical ordinance and nine years after their decision in Flanigan’s I, the Eleventh Circuit held that the ordinance was constitutional because it furthered an important government interest. In both cases the Eleventh Circuit considered whether the government’s interest in combating the negative secondary-effects of sexually explicit speech, in this case nude dancing, was worth hindering the speech. Comparing the results in the Flanigan’s I and Flanigan’s II provides a unique opportunity to see how the Eleventh Circuit raised the evidentiary standard for sexually explicit, but non-obscene speech ordinances analyzed under intermediate scrutiny. The Eleventh Circuit raised the evidentiary standard for showing not only that negative effects of sexually explicit speech exist, but that these ordinances are actually combating these effects. Now, in order to prove that sexually explicit speech has negative effects on a community and that an ordinance can combat these effects, municipalities should use empirical evidence.
Keywords: First Amendment, sexually explicit speech, ordinance, alcohol, strip club
Suggested Citation: Suggested Citation
Futrell, Jonathan, Secondary Speech No More? Raising the Evidentiary Bar for Sexually Explicit Speech in Flanigan’s Enterprises, Inc. Of Georgia v. Fulton County (December 1, 2010). Available at SSRN: https://ssrn.com/abstract=1988581 or http://dx.doi.org/10.2139/ssrn.1988581