Flanigan's Enterprises, Inc. of Georgia, et al. v. City of Sandy Springs, Georgia

The secondary effects doctrine of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), provides that content-based regulations avowedly aimed at adverse secondary effects associated with businesses offering sexually oriented expression are to be reviewed under intermediate, rather than strict, scrutiny. Does that doctrine survive Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), which holds that facially content-based laws are subject to strict scrutiny, regardless of their content-neutral justifications?

City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002), is a plurality decision addressing the evidentiary burdens under the secondary effects doctrine. If the secondary effects doctrine survives, does Justice Kennedy’s concurrence constitute the holding of that case as representing the narrowest ground supporting the judgment, as the Sixth, Seventh, Eighth, Ninth Circuits, and prior panels of the Eleventh Circuit have held, or is Justice Kennedy’s concurrence not binding precedent, as the court below concluded?

Marks v. United States, 430 U.S. 188, 193 (1977), held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....’” Under Marks:

may a concurring opinion qualify as the holding even if it does not share