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Law Schools, Libertarian Groups Ask Supreme Court to Punish City for Anti-Sex Toy Law

Dice with sex themes: "kiss," "lick," "tease," and words for sexual body parts — "boobs" and "nipples" — cut off.

The Supreme Court is considering whether or not to take up a case against a Georgia city that temporarily banned sex toys. When a legal battle made it clear the law would likely be struck down, the city merely brushed the statute off its books. The plaintiffs are suing for nominal damages — in the amount of $1 — as a statement that the city was in the wrong on fundamental rights.

Libertarian groups (the Reason Foundation and DKT Liberty Project), law schools (Emory and Stanford), and other legal advocates (the Student Press Law Center) have filed the petition and amicus curiae briefs, arguing that fundamental rights are at stake in the case Davenport v. City of Sandy Springs, Georgia.

"It's like when my older brother used to pinch me when my parents weren't looking: If they caught him in the act, he would stop — but I wanted him to be admonished for pinching me at all," Emory Law professor Sarah Shalf, who filed the brief from Emory Law School and the Student Press Law Center, told Georgia's Reporter Newspapers.

Shalf warned that if Sandy Springs got away without facing damages, it would send the message that government gets a free pass at violating the Constitution, so long as it deletes a law at the last minute.

In 2006, Sandy Springs passed an obscenity ordinance restricting zoning for adult shops. In 2009, the city enacted a law banning the sale of "sexual devices," or sex toys. Inserection, a bookstore across from City Hall, sued to have the law struck down, and two residents joined the case in 2014. Last March, the U.S. 11th Circuit Court of Appeals threw out a previous ruling upholding the ban on sex toys and agreed to re-hear the case.

Days later, the city struck the ban from the books. "We don't really have a problem with it in the city," City Attorney Wendell Willard said at the time. "Why continue with the litigation?"

In terms of adult bookstores, "we have a control through zoning regulations" and so can afford to delete the criminal law without affecting the regulations, the attorney explained.

Sandy Springs argues that the case is not only moot, but that no one was ever harmed because the law against sex toys was never enforced.

Civil libertarians and law schools say the Supreme Court might be willing to take the case, and while local lawyers handled the case previously, Stanford Law School's Supreme Court Litigation Clinic filed the Supreme Court petition last December.

"There was a lot of interest in this issue from lots of different people who are public interest lawyers who litigate against governments," David Goldberg, the lead lawyer on the petition at Sanford's clinic, told the Reporter Newspapers.

Goldberg admitted that the Supreme Court only accepts a tiny percentage of cases submitted to it for review. Even so, the sex toys case involves a controversy among federal courts that the Supreme Court will have to decide eventually.

In their brief, DKT Liberty Project and the Reason Foundation argue that the case could render any rights that don't have monetary value unenforcible. Intangible property rights deserve protection despite the fact that it is hard to assign a specific monetary value to the harms involved when such rights are violated.

"Nominal damages are a particularly apt form of relief in these situations because the value of the plaintiff's rights will usually be hard — if not impossible — to measure in monetary terms," the brief states. "It will also be difficult in these cases to prove a causal connection between a violation of the plaintiff's rights and some measurable loss."

The brief from the Emory University Restoring Religious Freedom Project and the Student Press Law Center argues that "these rights will be relegated to second-class status — unenforceable so long as the government knows when to quit."

Davenport v. Sandy Springs is not the only case centering on the city's laws involving sexually-oriented businesses. In Maxim Cabaret v. Sandy Springs, local strip clubs are challenging zoning laws, and the city argues the challenges are moot due to later repeals. The Georgia Supreme Court argued this case in early March, and a decision is pending.

The city may be opening yet another front on these issues. At a March 6 City Council meeting, City Attorney Dan Lee said the city believes local strip clubs have not been paying proper license fees and excise taxes to the city. The city will pursue legal action for a total of $240,000 in fees and $400,000 in taxes, Lee said, predicting that a full announcement would come on March 9. That date passed without such a statement, however.

Attorneys for the local clubs denied any knowledge of the fee and tax dodging in Lee's allegations. They further noted that due to the ongoing lawsuits, the clubs are unable to get licenses from Sandy Springs, and are operating under consent agreements.

The U.S. Supreme Court is expected to decide whether or not to take up Davenport v. Sandy Springs next month. Will the nation's highest court take up a sex toys case demanding $1 in damages, due to the importance of defending fundamental rights?