Fannies Cabaret v. City of South Fulton (11th Cir. 2025):
Re-affirming the Secondary-Effects Doctrine and Tightening the Irreparable-Harm Gate for First-Amendment Injunctions

Introduction

In Fannies Cabaret v. City of South Fulton, the Eleventh Circuit confronted a recurring tension in First-Amendment jurisprudence: the extent to which municipalities may regulate sexually oriented businesses that combine nude dancing with alcohol service. After the City of South Fulton annexed the property on which “Fannies Cabaret” operated, the club suddenly found itself subject to two separate municipal schemes:

• § 16-5006 of the Alcohol Code – forbidding live nude entertainment in any premises licensed to sell alcohol.
• The Sexually Oriented Business (“SOB”) Licensing Code – imposing licensing, zoning and, crucially, its own ban on alcohol possession or consumption within SOBs.

Viewing these ordinances as a fatal blow to its business model, Fannies sued on First-Amendment grounds and sought a preliminary injunction. The district court refused to enjoin enforcement, and the Eleventh Circuit affirmed. Although styled as “Do Not Publish,” the opinion clarifies two doctrinal points likely to reverberate well beyond the strip-club context:

1. The continuing vitality of the secondary-effects doctrine—post-Reed v. Town of Gilbert—as a basis for applying only intermediate scrutiny to alcohol-nude-dancing bans; and
2. The independent, indispensable requirement that a plaintiff show irreparable harm before receiving preliminary injunctive relief, even when a facial overbreadth challenge appears legally plausible.

Summary of the Judgment

The Eleventh Circuit divided its analysis between two claims raised by Fannies:

1. Facial Overbreadth of § 16-5006 (Alcohol Code)
   • The district court erred in refusing to reach the merits;
   • Nevertheless, no injunction could issue because Fannies could not show irreparable harm while the SOB Code’s independent alcohol ban remained in force.
2. Constitutionality of the SOB Licensing Code
   • The Code is a content-neutral, secondary-effects regulation subject to intermediate scrutiny;
   • Fannies was unlikely to succeed on the merits, given abundant Eleventh-Circuit precedent upholding materially identical bans;
   • Without likelihood of success, and with the other equitable factors uncertain, injunctive relief was properly denied.

The court therefore affirmed the denial of preliminary injunctive relief in its entirety.

Analysis

Precedents Cited

The panel traced a robust lineage of First-Amendment and procedural decisions:

• Cheshire Bridge Holdings, LLC v. City of Atlanta, 15 F.4th 1362 (11th Cir. 2021) – authoritative restatement of the facial-overbreadth standard.
• CAMP Legal Defense Fund v. City of Atlanta, 451 F.3d 1257 (11th Cir. 2006) – standing to raise overbreadth on behalf of third parties.
• Curves, LLC v. Spalding County, 685 F.3d 1284 (11th Cir. 2012) – refusal to invalidate an alcohol ordinance when a separate, valid ordinance independently forbade the same conduct.
• Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th Cir. 1998); Wise Enterprises, Inc. v. Athens-Clarke Cty., 217 F.3d 1360 (11th Cir. 2000); Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000) – upheld bans on nude dancing with alcohol service under intermediate scrutiny.
• Wacko’s Too, Inc. v. City of Jacksonville, 134 F.4th 1178 (11th Cir. 2025) – most recent reaffirmation that post-Reed content-neutral secondary-effects analysis remains good law.
• Reed v. Town of Gilbert, 576 U.S. 155 (2015) – clarified that facial content distinctions normally trigger strict scrutiny, but did not overrule the secondary-effects doctrine.
• Siegel v. LePore, 234 F.3d 1163 (11th Cir. 2000) – an injunction cannot issue absent a substantial likelihood of irreparable injury.
• University of Texas v. Camenisch, 451 U.S. 390 (1981) – purpose of a preliminary injunction is to preserve, not alter, the status quo.

By weaving these authorities together, the court reinforced a stable doctrinal framework for municipal regulation of adult entertainment, while cautioning district courts to separate merits analysis from the distinct element of irreparable harm.

Legal Reasoning

a. Overbreadth Claim

The district court’s error was procedural: it refused to consider Fannies’s purely legal overbreadth argument because the complaint lacked specific “factual” allegations. Eleventh-Circuit precedent clearly allows—indeed encourages— assessment of facial overbreadth on the statute’s text alone. Nevertheless, to obtain a preliminary injunction a plaintiff must still satisfy all four equitable factors, including irreparable harm.

Here is the analytical chain the panel employed:

1. The Alcohol Code ban (§ 16-5006) may or may not be substantially overbroad; that question was left unresolved.
2. Even if unconstitutional, enjoining § 16-5006 would not permit Fannies to sell alcohol because the SOB Code independently forbids it.
3. Therefore, no injunction could redress any immediate injury; absent redressability, irreparable harm is missing.

The panel relied heavily on Curves, LLC, where the presence of an independent ordinance undermined injunctive relief.

b. SOB Licensing Code Claim

The court’s analysis proceeded in two sequential steps:

1. Level of Scrutiny
   • Because the Code was aimed at crime, blight, and other “secondary effects” of nude-dancing establishments, it was deemed content neutral under long-standing doctrine (Renton, Alameda Books, etc.).
   • Reed v. Town of Gilbert did not silently overrule this line; the 2025 decision in Wacko’s Too controls.
2. Intermediate-Scrutiny Application
   • The City had a substantial governmental interest: reducing crime, alcohol-related disturbances, and negative land-use effects.
   • The ordinance “furthers” that interest – supported by studies, experiences of other cities, and the club’s own acknowledgment that alcohol service is a key draw.
   • The regulation is narrowly tailored: it does not ban nude dancing outright or limit the number of SOBs; it merely conditions alcohol service.
   • Ample alternative channels remain – the club can continue nude performances sans alcohol.

Having failed step one (strict scrutiny) and step two (intermediate tailoring), Fannies lacked a probability of success, and the court did not need to parse the remaining injunction factors in depth.

Impact of the Decision

While unpublished, the opinion carries real doctrinal weight because it stitches together two distinct but often conflated areas of First-Amendment law:

• Substantive Speech Analysis – Municipalities in the Eleventh Circuit continue to enjoy a robust secondary-effects safe-harbor when regulating the liquor-nude-dancing combination.
• Equitable Injunction Standards – Even where a plaintiff demonstrates plausible constitutional infringement, an injunction remains inappropriate if parallel, unchallenged regulations would leave the plaintiff in the same position. The court elevates irreparable harm from a perfunctory recital to a true gatekeeper.

Practically, the decision empowers local governments to:

1. Draft dual-track ordinances (zoning/licensing + alcohol regulations) as mutually reinforcing systems, complicating any preliminary injunction attempt by adult-entertainment venues.
2. Rely on empirical studies from other jurisdictions without commissioning new data each time.

For litigants, the case is a cautionary tale: Overbreadth claims can survive Rule 12 motions, but plaintiffs who bypass parallel prohibitions may find themselves unable to demonstrate the irreparable harm necessary for early relief.

Complex Concepts Simplified

Secondary-Effects Doctrine

A legal fiction that treats regulations targeting the harmful effects (crime, blight) of speech as “content-neutral,” permitting intermediate rather than strict scrutiny.

Facial Overbreadth

A First-Amendment tool allowing one plaintiff to invalidate a law because it sweeps too broadly, deterring the speech of third parties not before the court.

Intermediate vs. Strict Scrutiny

Strict – Government must prove the regulation is narrowly tailored to a compelling interest.
Intermediate – Government must show the regulation advances a substantial interest and is narrowly tailored, leaving open alternative channels.

Preliminary Injunction Factors

1) Likelihood of success on the merits; 2) Irreparable harm; 3) Balance of harms; 4) Public interest. Failure on any one factor, especially irreparable harm, dooms the request.

Irreparable Harm

Injunctions guard against injuries that cannot be remedied by money damages or later relief. If another law keeps the plaintiff in the same position, the harm is not “irreparable” for injunction purposes.

Conclusion

Fannies Cabaret delivers two headline lessons. First, the Eleventh Circuit remains steadfast that alcohol-and-nudity restrictions are evaluated through the intermediate-scrutiny lens of secondary effects, despite broader debates following Reed. Second, the court underscores that equitable considerations—particularly irreparable harm—retain independent force; a promising constitutional argument alone will not unlock preliminary relief if parallel regulations foreclose practical change.

Going forward, adult-entertainment venues (and other expressive businesses) should expect uphill battles when seeking early injunctions against overlapping municipal schemes. Legislators, for their part, have a renewed roadmap for crafting enforceable, dual-layer regulations that can survive initial court scrutiny. In the evolving dialogue between free expression and local governance, Fannies Cabaret reinforces that doctrinal rigor and procedural precision walk hand in hand.