Secret Desires Lingerie, Inc. v. City of Atlanta
470 S.E.2d 879, 96 Fulton County D. Rep. 2070, 266 Ga. 760 (1996)
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Rule of Law:
To be constitutional, an ordinance regulating adult entertainment based on its negative secondary effects must be enacted only after the governing body has considered specific evidence demonstrating a correlation between such establishments and the undesirable effects it seeks to control.
Facts:
- Lingerie modeling studios were operating within the City of Atlanta.
- Vice squad officers from the City's police department investigated complaints of criminal activity at these studios.
- During their investigations, officers observed acts of prostitution, simulated sex, and public indecency.
- The officers made at least one arrest for sexual intercourse between a patron and an employee.
- On October 4, 1993, the Atlanta City Council enacted an ordinance to regulate lingerie modeling studios.
- The ordinance's preamble cited a general interest in public welfare and stated that such establishments 'have a tendency to breed illegal activities,' but did not reference any specific studies, reports, or police findings.
Procedural Posture:
- Appellants, a group of lingerie modeling studios, filed a lawsuit in the superior court (a state trial court) against the City of Atlanta.
- The lawsuit challenged the constitutionality of a city ordinance regulating their businesses and sought declaratory and injunctive relief.
- The superior court conducted a two-day trial.
- After the trial, the superior court found the ordinance constitutional and ruled in favor of the City of Atlanta.
- The Appellants appealed the superior court's decision to the Supreme Court of Georgia.
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Issue:
Does a municipal ordinance regulating adult entertainment establishments violate free speech principles when the governing body cannot produce evidence that it relied upon specific studies or findings of undesirable secondary effects before enacting the ordinance?
Opinions:
Majority - Thompson, Justice
Yes. The ordinance is unconstitutional because a governing body must rely upon specific evidence of undesirable secondary effects before it enacts a law regulating adult entertainment. At trial, the City of Atlanta failed to produce any evidence—such as studies from other jurisdictions, its own formal studies, or even proof that the city council was aware of its own police officers' findings—that it considered before passing the ordinance. The testimony of police officers about the link between the studios and prostitution is irrelevant because the City could not demonstrate that the city council was aware of, or relied upon, these conclusions when enacting the law. An ordinance cannot be justified by evidence gathered after its passage; the evidentiary foundation must predate the legislative action.
Dissenting - Fletcher, Presiding Justice
No. The ordinance is constitutional because the city properly relied on its own relevant experience with crime at these establishments. The majority ignores the proper standard of review, which, after a full trial, requires deference to the trial court's factual findings unless they are 'clearly erroneous.' The trial court found that the City had knowledge of the secondary effects prior to enactment, and the testimony of vice squad officers about prostitution and indecency at the studios provides evidence to support that finding. The First Amendment does not require a city to rely on formal 'studies'; it only requires reliance on evidence that is reasonably believed to be relevant, which includes the direct experience of its own police force.
Analysis:
This decision establishes a critical procedural predicate for municipalities seeking to regulate adult entertainment under the 'secondary effects' doctrine. It clarifies that it is not enough for a city to have a rational basis for the law; the city must create a legislative record demonstrating that it actually considered evidence of those secondary effects before enactment. This ruling makes it more difficult for local governments to pass such regulations without undertaking due diligence, as they cannot rely on post-hoc justifications developed for litigation. It solidifies the principle that the government's purpose is determined at the time of enactment, not retroactively.
