This That and The Other Gift & Tobacco, Inc. v. Cobb County, 439 F.3d 1275 (11th Cir. 2006)

Cary Stephen Wiggins

Case Conclusion Date:February 15, 2006

Practice Area:Constitutional

Outcome:Reversal

Description:The plaintiffs alleged that O.C.G.A. § 16-12-80's complete ban on advertising for devices designed or marketed primarily for the stimulation of human genital organs violated their First Amendment rights to commercial speech under the U.S. Supreme Court jurisprudence.The district court found that the challenge failed the Central Hudson test. On appeal, a prior appellate panel expressly determined that § 16-12-80 banned all advertising of the sexual devices in issue, this per se ban on advertising was more extensive than necessary, and it violated plaintiffs' First Amendment rights. On remand, the district court gave the statute a limiting construction and found that the statute did not violate the First Amendment. In this appeal, the appellate court determined that the district court on remand violated the law-of-the-case doctrine when it revisited the issue of whether the statute violated plaintiffs' First Amendment rights. The prior panel, at least by implication, determined that § 16-12-80 could not be saved by giving the statute the more limiting construction used by the district court. Also, the law-of-the-case doctrine applied during the preliminary injunction stage. The appellate court then vacated and reversed the district court's order granting summary judgment for defendants and remanded the case with instructions for the district court to enter summary judgment in favor of plaintiffs.