[P U B L IS H ]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

ELEVENTH CIRCUIT

February 15, 2006

N o . 04-16419

THOMAS K. KAHN

CLERK

D . C. Docket No. 00-02920-CV-WBH-1

T H IS THAT AND THE OTHER GIFT AND TOBACCO, INC.,

d .b .a . This That & The Other,

C H R IS T O P H E R PREWETT,

P la in tif f s - A p p e lla n ts ,

versus

COBB COUNTY, GEORGIA,

P A U L FOSTER, in his official capacity as

B u s in e s s License Division Manager

f o r Cobb County, Georgia,

T H U R B E R T E. BAKER, in his official capacity

a s Attorney General for the State of Georgia,

Defendants-Appellees.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(F eb ru a ry 15, 2006)

B efo re BLACK, HULL and FARRIS *, Circuit Judges.

P E R CURIAM: T h e plaintiffs, This That and The Other Gift and Tobacco, Incorporated, and C h risto p h er Prewett, appeal the district court's grant of summary judgment in fav o r of the defendants on their First Amendment challenge to Georgia's obscenity statu te, O.C.G.A. § 16-12-80. This is the second time this Court has considered the p lain tiffs' challenge to this same statute. See This That and the Other Gift and T o b acco , Inc. v. Cobb County, Ga., 285 F.3d 1319 (11 th Cir. 2002) ("This That I").

In This That I, this Court concluded that: (1) § 16-12-80 "contains a per se p ro h ib itio n on advertising" related to sexual devices covered by statute; (2) "the b an contained in O.C.G.A. § 16-12-80 is more extensive than necessary"; and (3) "[ l]e ss onerous restrictions adequately would serve Georgia's interest, and the per se ban on advertising therefore violates the First Amendment." Id. at 1324.

O n remand from that appeal, the district court revisited issues already d e c id e d in This That I, in violation of the law-of-the-case doctrine. Thus, after rev iew and oral argument, we vacate and reverse the district court's order granting su m m ary judgment for the defendants and remand this case with instructions for th e district court to enter summary judgment in favor of the plaintiffs on their First A m en d m en t challenge to § 16-12-80.

I. BACKGROUND A. G e o r g ia ' s Obscenity Statute A s emphasized by the defendants' brief, the Georgia legislature enacted O .C .G .A . § 16-12-80 with the "main purpose" of "advanc[ing] the government's in terest in promoting public morality." Toward that end, § 16-12-80 regulates the d istrib u tio n of obscene material, in relevant part, as follows: ( a ) A person commits the offense of distributing obscene material w h en he sells, lends, rents, leases, gives, advertises, publishes, ex h ib its, or otherwise disseminates to any person any obscene m aterial of any description . . . .

...

(c) Any device designed or marketed as useful primarily for the stimulation o f human genital organs is obscene material under this Code section.

...

(e) It is an affirmative defense under this Code section that dissemination of th e material was restricted to: ( 1 ) A person associated with an institution of higher learning, e ith er as a member of the faculty or a matriculated student, teach in g or pursuing a course of study related to such material; or (2 ) A person whose receipt of such material was authorized in w ritin g by a licensed medical practitioner or psychiatrist.

O .C .G .A . § 16-12-80.

T h u s, for the purposes of this case, section (a) makes it unlawful to sell, len d , rent, lease, give, advertise, publish, exhibit, or otherwise disseminate obscene m aterial. O.C.G.A. § 16-12-80(a). Section (c) defines obscene material to include th o se "device[s] designed or marketed as useful primarily for the stimulation of h u m an genital organs"; for example, vibrators and dildos. O.C.G.A. § 16-12-80(c).

Section (e) provides an affirmative defense when the "dissemination" of otherwise o b scen e material was to higher education faculty and students or to persons with a v a lid prescription. O.C.G.A. § 16-12-80(e).

B. P la in tiffs Open For Business O n April 24, 1998, the plaintiffs applied for various business licenses and p e r m its in Cobb County, Georgia. In submitting an application, the plaintiffs in fo rm ed Cobb County that their business would be selling devices designed or m ark eted primarily for the stimulation of human genital organs. Although Cobb C o u n ty approved the plaintiffs' application, it later expressed concern that some of th e devices sold by the plaintiffs violated Georgia's obscenity statute. Despite e x p r e ss in g concern, Cobb County subsequently renewed the plaintiffs' licenses an d permits in 1999 and 2000.

I n early 2000, Cobb County threatened the plaintiffs with criminal p ro se cu tio n and adverse administrative action for allegedly violating Georgia's o b s ce n ity statute. On June 25, 2000, the plaintiffs stopped selling sexual devices su ch as vibrators and dildos. A. P la in tiffs' First Motion for a Preliminary Injunction Plaintiffs filed suit and sought preliminary injunctive relief preventing Cobb C o u n ty from enforcing Georgia's obscenity statute. Plaintiffs asserted, in part, that G eo rg ia's obscenity statute banned commercial speech in violation of the First A m en d m en t. Specifically, plaintiffs asserted that O.C.G.A. § 16-12-80's complete b a n on advertising violated the four-prong test in Central Husdon Gas & Elec.

C o rp . v. Public Serv. Comm'n, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351 (1980).

Courts use the four-prong test in Central Hudson to determine if commercial s p e ec h is protected by the First Amendment. Specifically, a court must determine: ( 1 ) whether the speech concerns lawful activity and is not misleading; (2) whether th e regulation serves a substantial governmental interest; (3) whether the regulation d irectly and materially advances the state's asserted interest; and (4) whether the reg u latio n is no more extensive than necessary to serve that interest.

In the district court, the plaintiffs stressed that Georgia's obscenity statute p erm itted the sale of sexual devices to higher education faculty and students and to p erso n s with valid prescriptions (collectively, "legal consumers"), and, thus, "the g o v ern m en t cannot presume all advertisements about sexual devices will be m is le ad in g ." Plaintiffs further argued that the complete ban on advertising was "o v e rb r o a d " in that Georgia's obscenity statute banned all advertising, which w o u ld include truthful advertising to medical practitioners and legal consumers.

Finally, the plaintiffs asserted that Georgia's complete ban on advertising could not b e saved even if the defendants had the power to ban the sale of sexual devices co m p letely.1 Essentially, the plaintiffs contended that once Georgia permitted the sale of sexual devices to certain consumers, it was required to permit the truthful, n o n - m is le ad in g , and targeted advertisement of sexual devices to those consumers as well as medical practitioners.

In response to the plaintiffs' motion for a preliminary injunction, the d efen d an ts characterized the plaintiffs' claims as challenging the state's ban on the ad v ertisin g of sex devices. Specifically, defendants' brief stated, as follows: "P lain tiffs contend that O.G.C.A. (sic) § 16-12-80[] impermissibly infringes upon th e rights guaranteed under the First and Fourteenth Amendments under the federal c o n s titu tio n by prohibiting the advertisement of sexual devices. They assert that th is advertisement ban constitutes an unlawful prior restraint on the constitutional rig h t of free speech." I n their reply to plaintiffs' argument, the defendants asserted that because a state may completely ban the sale of sexual devices outright, it does not violate the C o n stitu tio n to ban entirely the advertisement of those products. At no point did th e defendants argue that § 16-12-80 could, or should, be construed to permit ad v ertisem en ts targeted at medical practitioners or legal consumers.

A fter conducting a hearing, the district court addressed the plaintiffs' motion f o r a preliminary injunction. Noting that the plaintiffs' motion was less than clear, th e district court characterized the plaintiffs' motion as challenging "the p ro h ib itio n of the advertising regarding devices that would lawfully be sold with a v alid medical or psychological reason . . . ." The district court then addressed the p lain tiffs' First Amendment challenge under the four-part Central Hudson test.

A c co r d in g to the district court, the plaintiffs' challenge to § 16-12-80 failed th e Central Hudson test for three reasons. First, the district court concluded "that it is likely that any advertising of the sexual devices in the limited instances in which it would be lawful to sell those sexual devices . . . would mislead those that were n o t in possession of a valid authorization." In other words, the district court co n clu d ed that Georgia's complete ban on advertising did not violate the First A m e n d m e n t because any potential advertisement to medical practitioners or legal c o n s u m e rs "would inherently be misleading to the other viewers of any such a d v e r tis em e n t not in the possession of an authorization or without a personal k n o w led g e of the law." S eco n d , the district court concluded that the complete ban on advertising in G eo rg ia's obscenity statute "directly advances the government's interest in p ro m o tin g public morality." T h ir d , the district court determined that the complete ban on advertising was "n o t more extensive than necessary." In fact, the district court went on to conclude th at it "does not envision any manner in which this substantial government interest co u ld be furthered in a less extensive manner." B a se d on these conclusions, the district court determined that the plaintiffs h ad failed to demonstrate that they were likely to prevail on the merits of their First A m en d m en t challenge to § 16-12-80, and, thus, the district court denied their m o tio n for a preliminary injunction.

P lain tiffs appealed to this Court.

B. P la in tiffs' First Appeal O n appeal, the plaintiffs asserted that the district court erroneously d eterm in ed that they were not entitled to a preliminary injunction on their First A m en d m en t claim. Specifically, the plaintiffs argued that the complete ban on a d v e r tis in g in § 16-12-80 violated their First Amendment rights to commercial sp eech under Central Hudson.

A cco rd in g to the plaintiffs, (1) no substantial government interest existed in b an n in g the advertisement of the sexual devices covered by § 16-12-80, (2) the co m p lete ban on advertising such sexual devices did not directly and materially ad v an ce the government's interest in protecting public morality, and (3) the co m p lete ban on the advertisement of such sexual devices was not narrowly ta ilo r e d .

T h e defendants responded that the district court properly denied the p lain tiffs' motion for a preliminary injunction. Specifically, the defendants, in a tw o -p ag e response to the plaintiffs' First Amendment challenge, argued for the f ir st time that Georgia's obscenity statute did not ban all advertising. Rather, acco rd in g to the defendants, "advertising of [sexual] devices directed at persons law fu lly entitled to use such devices . . . is not prohibited by the Georgia s ta tu te . . . ." Thus, the defendants argued that § 16-12-80 was constitutional b e c au s e § 16-12-80(e) permitted lawful, non-misleading advertising targeted at leg al consumers.

I n its decision in the first appeal, this Court identified the four prerequisites to a preliminary injunction, as follows: th e plaintiffs must demonstrate that (1) they have a substantial lik elih o o d of success on the merits, (2) they will suffer irreparable in ju r y unless the injunction issues, (3) the threatened injury to them o u tw eig h s the damage that the injunction would have on the opposing p arties, and (4) if issued, the injunction would not disserve the public in te r e s t.

T h is That I, 285 F.3d at 1321-22 (citation omitted). This Court then noted that the d istrict court had ruled on only the first prerequisite of a preliminary injunction.

Thus, our prior opinion focused on only the legal issue of whether § 16-12-80 v io lated the First Amendment.

W ith regard to that legal issue, this Court addressed the plaintiffs' claim "th a t O.C.G.A. § 16-12-80 forbids the advertising of sexual devices and therefore b an s commercial speech in violation of the First Amendment." This That I, 285 F .3 d at 1323. We first considered "whether the speech at issue is misleading or relates to unlawful activity." Id.

A cco rd in g to this Court in the prior appeal, "[f]or commercial speech to fall w ith in the protections of the First Amendment, it must concern lawful activity and n o t be misleading." Id. (citing Central Hudson, 447 U.S. at 566, 100 S. Ct. at 2 3 5 1 ). This Court "disagree[d] with the district court's analysis of the first prong o f Central Hudson," wherein the district court had concluded that advertising sex d ev ices to legal consumers would be misleading to non-legal consumers. Id. This C o u rt stated that it was "not convinced that an advertisement targeting [legal] co n su m ers necessarily would be misleading . . . [nor] that an explanation of those p e r so n s entitled to purchase the device needs to be lengthy and complex." Id. at 1 3 2 4 . Essentially, this Court concluded that it was possible to craft a truthful, non- m is le ad in g advertisement regarding the sexual devices targeted to legal c o n s u m e r s .2 A s to the second and third prongs of Central Hudson, this Court assumed th at Georgia had a substantial governmental interest in promoting public morality an d that the complete ban on advertising advanced that interest. This That I, 285 F .3 d at 1324. However, as to the fourth prong, this Court "disagree[d] with the d is tr ic t court's analysis of the last prong of Central Hudson," wherein the district co u rt had determined that the regulation was no more extensive than necessary to s er v e the governmental interest. Id. This Court concluded that the complete ban o n advertising in § 16-12-80 was "more extensive than necessary" and violated the F irst Amendment, stating w e . . . conclude that the ban contained in O.C.G.A. § 16-12-80 is m o re extensive than necessary. Even though sexual devices clearly a r e lawful under certain circumstances, the statute contains a per se p ro h ib itio n on advertising related to such devices. Distributors of sex u al devices are forbidden unqualifiedly from advertising their p r o d u c ts , even when the market they seek to reach consists of those co n su m ers lawfully entitled to purchase those products. Less onerous r es tr ic tio n s adequately would serve Georgia's interest, and the per se b an on advertising therefore violates the First Amendment.

Id . at 1324. In summary, the prior panel in this case has already decided: (1) it is p o s sib le to craft a truthful, non-misleading advertisement targeted at the legal co n su m ers of the devices in issue; (2) § 16-12-80 contains a complete ban on a d v e r tis in g ; (3) the complete ban on advertising is "more extensive than n ec es sa ry "; (4) "[l]ess onerous restrictions adequately would serve Georgia's in te re st" ; and (5) "the per se ban on advertising . . . violates the First Amendment." Id.

H av in g determined that the complete ban on advertising in § 16-12-80 v io lated the First Amendment, this Court concluded that the district erred in fin d in g that the plaintiffs had failed to show a substantial likelihood of success on th e merits of their First Amendment challenge. Id. Thus, this Court remanded the case to the district court and directed it "to consider on remand whether the p la in tif fs have satisfied the remaining prerequisites for a preliminary injunction." Id. Although there was a remand, this Court had already decided the purely legal q u estio n of whether § 16-12-80 violated the plaintiffs' First Amendment rights to co m m ercial speech.3 3 When compared to this Court's other decisions that reviewed a district court's ruling regarding a preliminary injunction, the precedential force of This That I becomes obvious. See Schiavo v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005) (stating that "an abuse of discretion standard recognizes there is a range of choice within which we will not reverse the district court even if we might have reached a different decision") (citations omitted); Revette v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 740 F.2d 892, 893 (11th Cir. 1984) ("Although there may be merit to these contentions, they present a sufficiently close question so that the C. P ro ceed in g s After Remand O n May 20, 2002, the district court ordered that the mandate from this Court b eco m e the judgment of the district court. On remand, the district court did not ad d ress the remaining prerequisites for a preliminary injunction. Rather, the d istrict court again addressed the question of whether § 16-12-80 violated the p la in tif fs ' First Amendment rights. Although this Court had already concluded th a t § 16-12-80 contained a complete ban on advertising even to legal consumers a n d that this per se advertising ban violated the First Amendment, the district court rev isited these issues. The district court ordered briefing on whether the a d v e r tis in g provision of § 16-12-80 could be severed in order to save the statute.4 T h e defendants submitted their brief on severability on August 23, 2002.

According to the defendants, "the unconstitutional provision consisting of the term [] `advertise'[] can be properly severed or stricken from the statute, leaving the rem ain d er of the statute intact." Section 16-12-80(a) makes it unlawful when a p erso n "sells, lends, rents, leases, gives, advertises, publishes, exhibits, or district court could probably have gone either way in its decision to a preliminary injunction. In such a case, there can be no abuse of discretion.").

4 In that regard, on August 7, 2002, the district court entered an order stating: "[b]oth parties . . . have brought it to the Court's attention that the interest of judicial economy would be served by the Court's adjudication of the issue of severability of the advertising provision of O.C.G.A. § 16-12-80 before the parties proceed with any other matters." Thus, the district court ordered the parties to address the "severability issue." It is unclear how and when the parties brought this severability issue to the district court's attention. o th e r w is e disseminates" any obscene material. Essentially, the defendants argued th at if the district court removed the term "advertises" from § 16-12-80(a), the s ta tu te would be constitutional. At no point did the defendants reassert that ad v ertisin g targeted at medical practitioners or legal consumers was already p erm itted under § 16-12-80 or that "dissemination" as used in the affirmative d efen se in § 16-12-80(e) could, or should, be construed to include advertising.

T h e plaintiffs then filed their response regarding the issue of severability.

Although not a picture of clarity, the plaintiffs' response argued that severing the te rm "advertise" from section (a) would not cure the constitutional problem b e c au s e "it is the act of advertising ­ not the word `advertises' ­ which is protected b y the First Amendment." According to the plaintiffs, the prohibitions against p u b lis h in g or exhibiting materials in section (a) could reasonably be read to affect th e ir First Amendment right to advertise to legal consumers. The plaintiffs further asserted that it was unclear how the Georgia legislature would respond given the "in firm ities" in § 16-12-80. The plaintiffs argued that because there were different o p tio n s available to the Georgia legislature, it was improper for a federal district co u rt to select among them.

T h e defendants filed a reply brief and characterized this Court's prior d ecisio n in This That I as follows: T h e Eleventh Circuit held that the per se ban on advertising as applied to sexual devices violated the First Amendment because a d v e r tis em e n ts targeting consumers of "lawful" sexual devices as p ro v id ed in O.C.G.A. § 16-12-80(e) would not be misleading. The C o u rt also held that the per se prohibition on advertising relating to sex u al devices was too extensive because the prohibition failed to take in to account sexual devices that could be lawfully distributed to certain consumers.

A g a in , the defendants argued that "there are no countervailing considerations that w o u ld prohibit severance and/or partial invalidation of the term advertise as ap p lied to sexual devices." At no point did the defendants reassert that advertising ta rg e te d at medical practitioners or legal consumers was already permitted under G eo rg ia's obscenity statute or that "dissemination" as used in the affirmative d efen se in § 16-12-80(e) could, or should, be construed to include advertising.

A fter briefing, the district court on remand entered an order once again d en yin g the plaintiffs' motion for a preliminary injunction. In that order, the d is tr ic t court stated that "[t]he Eleventh Circuit opinion does not address whether th e statute may be saved through severance or the imposition of a limiting c o n s tr u c tio n ." The district court first concluded that § 16-12-80 could not be saved b y severing only the term "advertises" from subsection (a) of § 16-12-80, e x p la in in g that [ t]o fully protect the First Amendment right to advertise, as identified b y the Eleventh Circuit, the Court would have to sever other terms in th e statute that overlap with the term `advertise.' Even if the statute co u ld be severed in such an extensive manner, the Court cannot be r ea so n a b ly certain that the legislature would have enacted an o b scen ity statute that allows distributors to advertise expressive o b scen e material, particularly where the statute prohibits the sale of su ch material.

H o w ev er, the district court reasoned that "[a]s an alternative to severance, the C o u rt may avoid invalidating the statute in its entirety if the statute is `readily su scep tib le' to a limiting construction." A c co r d in g to the district court, "the plain language of the statute shows that it is readily susceptible to a limiting construction." The district court looked to the affirm ativ e defense in subsection (e) of § 16-12-80 and noted that the Georgia le g is la tu r e in § 16-12-80(e) had permitted the sale of sexual devices to particular co n su m ers. The district court reasoned that "the Georgia legislature has, in effect, p ro v id ed the Court with the necessary guidance for limiting the statute's a d v e r tis in g ban in a way that comports with the First Amendment." The district c o u r t determined that "[a] clear line may be drawn between advertising directed at th e general public and advertising directed at lawful consumers." The district court co n clu d ed that, in the absence of any legislative intent to the contrary, Georgia's o b scen ity "statute should be invalidated only insofar as it prohibits the advertising o f sexual devices targeted at the lawful consumers identified in subsection (e)." The district court, in effect, interpreted § 16-12-80(e) to include the term a d v e r tis in g in that affirmative defense.5 F o cu sin g on only the legal issue as to the construction of § 16-12-80, the d istrict court ruled that the plaintiffs did not have a substantial likelihood of su ccess on the merits regarding the constitutionality "of the statute as it has now b een construed." The district court once again addressed only the legal issue as to w h e th e r § 16-12-80 violated the First Amendment, and never addressed the other p rereq u isites for a preliminary injunction. The district court again denied the p lain tiffs' motion for a preliminary injunction, and subsequently granted the d efen d an ts' motion for summary judgment.

P lain tiffs again appeals.

II. DISCUSSION W e first examine the law-of-the-case doctrine and then whether on remand th e district court erred in revisiting whether § 16-12-80 violated the First A m e n d m e n t.

A. L a w -o f-th e-C a se Doctrine "U n d er the `law of the case' doctrine, the findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the sam e case in the trial court or on a later appeal." Heathcoat v. Potts, 905 F.2d 367, 3 7 0 (11 th Cir.1990) (internal quotation marks and citation omitted). Furthermore, th e law-of-the-case doctrine bars relitigation of issues that were decided either ex p licitly or by necessary implication. See Schiavo v. Schiavo, 403 F.3d 1289, 1 2 9 1 (11 th Cir. 2005) ("The [law-of-the-case] doctrine operates to preclude courts fro m revisiting issues that were decided explicitly or by necessary implication in a p rio r appeal."); Klay v. All Defendants, 389 F.3d 1191, 1198 (11 th Cir. 2004) ("R ealizin g that a prior decision is law of the case as to matters decided explicitly a n d by necessary implication, we find that our prior affirmation of the district court co n stitu tes law of the case here . . . ."), cert. denied, 125 S. Ct. 2523 (2005); A.A.

P ro files, Inc. v. City of Fort Lauderdale, 253 F.3d 576, 582 (11 th Cir. 2001) ( "G e n e ra lly , the law of the case doctrine requires a court to follow what has been e x p lic itly or by necessary implication decided by a prior appellate decision."); In re Ju stice Oaks II, Ltd., 898 F.2d 1544, 1550 n.3 (11 th Cir. 1990) ("While the law of th e case does not bar litigation of issues which might have been decided but were n o t, it does require a court to follow what has been decided explicitly, as well as by n ecessary implication, in an earlier proceeding.") (internal marks and citation o m itted ). The doctrine's central purposes include bringing an end to litigation, p ro tectin g against the agitation of settled issues, and assuring that lower courts o b ey appellate orders. See United States v. Williams, 728 F.2d 1402, 1406 (11 th C ir . 1984).

W h en a court decides a question of law, the only means by which the lawo f-th e-case doctrine can be overcome is if: (1) since the prior decision, "new and su b stan tially different evidence is produced, or there has been a change in the co n tro llin g authority"; or (2) "the prior decision was clearly erroneous and would resu lt in a manifest injustice." Oladeinde v. City of Birmingham, 230 F.3d 1275, 1 2 8 8 (11 th Cir. 2000) (citations omitted).

B. T h e Law of This Case A s outlined above, the prior panel in this case expressly determined that § 16-12-80 banned all advertising of the sexual devices in issue, that this per se ban o n advertising in § 16-12-80 "is more extensive than necessary," and that it v io lated the plaintiffs' First Amendment rights. This That I, 285 F.3d at 1324.

Indeed, in the prior appeal, Cobb County argued that § 16-12-80(e) of Georgia's o b s ce n ity statute permitted the truthful, non-misleading, and targeted a d v e r tis em e n t of sexual devices to legal consumers. However, the prior panel r eje cte d that reading and concluded that "[e]ven though sexual devices clearly are la w f u l under certain circumstances, the statute contains a per se prohibition on a d v e r tis in g related to such devices. Distributors of sexual devices are forbidden u n q u alified ly from advertising their products, even when the market they seek to r ea ch consists of those consumers lawfully entitled to purchase those products." Id. (emphasis added).

In reaching this conclusion, the prior panel, at least by implication, d e te rm in e d that § 16-12-80 could not be saved by giving the statute the more lim itin g construction used by the district court. See Christianson v. Colt Indus.

O p eratin g Corp., 486 U.S. 800, 817, 108 S. Ct. 2166, 2178 (1988) ("That the F ed eral Circuit did not explicate its rationale is irrelevant, for the law of the case tu r n s on whether a court previously decided upon a rule of law ­ which the Federal C ir cu it necessarily did ­ not on whether, or how well, it explained the decision.") (in tern al marks and alteration omitted); United States v. Jordan, 429 F.3d 1032, 1 0 3 5 (11 th Cir. 2005) ("We did not address that argument in so many words, or in an y words for that matter, but we did reject it `by necessary implication,' which is en o u g h under our decisions to bring the law of the case doctrine to bear in this ap p eal.") (citations omitted). Furthermore, none of the exceptions discussed above to the law-of-the-case doctrine apply here. Consequently, the district court on r em a n d violated the law-of-the-case doctrine when it revisited the issue of whether § 16-12-80 violated the plaintiffs' First Amendment rights and concluded a clear lin e could be drawn in the statute between advertising directed at the general public as opposed to legal consumers.6 T h e fact that the earlier panel opinion in this case was decided during the p r e lim in a r y injunction stage does not impact the applicability of the law-of-thecase doctrine in this case. Rather, the prior panel clearly determined that § 16-128 0 banned all advertising to even legal consumers, and, thus, violated the p lain tiffs' First Amendment rights. As such, this Court's prior legal conclusion w as binding on the district court, just as it is now binding on us. See Roe v. State o f Alabama, 68 F.3d 404, 408 (11 th Cir. 1995) (Applying the law of the case and statin g that "[a]lthough the law established by the prior panel was announced in a p re lim in ar y injunction posture, . . . the principle of law adopted was clear"); Nat'l A irlin es, Inc. v. Int'l Assoc. of Machinists & Aerospace Workers, 430 F.2d 957, 9 6 0 (5 th Cir. 1970) (Recognizing that the law-of-the-case doctrine applies to p r e lim in a r y injunctions and stating that "[t]he exception to law of the case where ev id en ce on a subsequent trial is substantially different is inapplicable where by the p rio r appeal the issue is not left open for decision") (internal punctuation and c ita tio n s omitted).7 B ecau se a prior panel in this case has already determined that § 16-12-80 u n co n stitu tio n ally infringes upon the plaintiffs' First Amendment rights, we rem an d this case to the district court to enter summary judgment in favor of the p lain tiffs. Because we are bound by the law-of-the-case doctrine, we need not co n sid er whether the type of limiting construction the district court gave to § 161 2 - 8 0 is a proper construction of that state statute.8 R E V E R S E D AND REMANDED WITH INSTRUCTIONS.

* Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by designation.

1 In Williams v. Att'y Gen. Of Ala., 378 F.3d 1232, 1250 (11th Cir. 2004), this Court concluded that there was no "constitutional right to privacy to cover the commercial distribution of sex toys."

2 We note that it is commonplace for advertisements about medical drugs or products to state a prescription is required in order to buy the drug or product lawfully. Thus, medical products available only by prescription are routinely advertised in ways that do not mislead the public.

5 While the district court ordered the parties to brief the severability issue, there was no new briefing on this limiting construction issue.

6 In addition to the district court's limiting construction, there is also a separate argument on appeal that the term "dissemination" as used in the affirmative defense in § 16-12-80(e) could be construed to encompass all prohibited conduct in § 16-12-80(a). However, a prior panel of this Court has necessarily rejected that reading as well. See This That I, 285 F.3d at 1324. Furthermore, this case illustrates that rewriting of statutes should be left to the Georgia legislature. If the Georgia legislature elects to enact another obscenity statute, it may elect to protect commercial speech to legal consumers by expanding subsection (e) to include all the terms in subsection (a). However, it may also elect to ban the sale and advertising of certain devices to all consumers. We offer no opinion as to the constitutionality of either approach. All we conclude is that the district court, and this Court, are bound by our prior panel's conclusion that, as written, § 16-12-80 is more extensive than necessary and violates the plaintiffs' First Amendment rights to commercial speech.

7 See Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 8 The plaintiffs also argue that § 16-12-80 is unconstitutionally vague and that Cobb County has engaged in selective prosecution. After review, we conclude these claims are without merit. Instead, § 16-12-80 violates the First Amendment solely on the basis determined by the prior panel in This That I.