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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.