Does The Guarantee of a "Prompt" Judicial Decision Apply to Adult Business Zoning Cases?
The Supreme Court Will Decide This Term

By JULIE HILDEN


julhil@aol.com
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Tuesday, Feb. 03, 2004

Next month, the Supreme Court will hear oral argument in a significant First Amendment case, Littleton v. Z-J Gifts. The case pits the town of Littleton, Colorado against a store called Christal's that wants to stay open on land that is not zoned for "adult" businesses.

The dispute arose because the town, claiming that Christal's is an adult business, refused to grant it the sales tax license necessary for it to operate. Christal's owners sued, insisting though their store carries some "sexy" material, it does not fit the criteria for that kind of business.

The basis of their suit was a federal statute designed to remedy violations of constitutional rights -- including First Amendment rights. Christal's argued that the First Amendment requires that a city must afford a "prompt" judicial decision on adult business licensing applications, and that Littleton does not do so.

Although the Supreme Court will probably not determine whether Christal's is, or is not, an adult business -- that is an issue for the lower courts -- it will answer a broader question: Do Littleton's zoning laws relating to adult businesses satisfy the First Amendment?

To decide that question, the Court will have to define what a "prompt" judicial decision means. Does it simply mean that a court challenge can quickly be filed? Or does it also mean that a decision resolving that challenge must quickly be issued?

This distinction is especially important for First Amendment cases, because leaving decisions up in the air for too long can mean that the speaker -- and other speakers aware of his situation - may be silenced by fear in the interim, until a final decision is made.

The question might sound easy -- and in the end, I think it is: The First Amendment ought to require an actual decision, not just an open courthouse door. However, the Littleton case is more complicated than it may appear, because it involves a long line of important Supreme Court free speech precedents.

Although we don't often think of alleged pornographers as First Amendment heroes, cases such as Littleton are about free speech, too. That's because as long as sexual speech does not meet the test for obscenity, it is fully protected by the First Amendment.

Freedman: Interpreting the First Amendment to Require a Prompt Judicial Determination

Before reaching the issues involving legal but allegedly pornographic speech, it's important to first start with a few precedents involving an illegal type of speech: obscenity.

As the 1957 decision in Roth v. United States reflects, the Supreme Court has long held that the government can censor obscene speech without violating the First Amendment. (The current obscenity test, however, does not come from Roth, but rather from the 1973 case of Miller v. California.)

Did the ruling in Roth mean, however, that the government can use any procedures it chooses to determine what is, and is not, obscene? In 1965, in Freedman v. Maryland, the Supreme Court said the answer is no. There, it reversed an obscenity conviction, saying it had resulted from a censorship scheme that included procedures violating the First Amendment.

In Freedman, the defendant had been convicted of showing a movie without first submitting it to Maryland's Board of Censorship for approval. He successfully argued, however, that the procedures he was supposed to follow were unconstitutional. Why? For one thing, as the Court noted, "once the Board has acted against a film, exhibition is prohibited pending judicial review, however protracted."

Thus, from the time of the censorship until they got a judicial decision reversing the Board's actions, Maryland film exhibitors couldn't show the film at issue, or, indeed, any film that had not been pre-approved by the Board -- or, at least, they couldn't do so without fear of legal repercussions.

In addition to striking down Maryland's procedures, the Court also set some parameters as to what a constitutional obscenity censorship scheme would look like. In particular, it held that such a scheme would have to guarantee "the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film." And it held that, when the censor does go to court, the judicial determination that ultimately results must be "prompt."

How quick would it have to be, to count as "prompt"? The opinion cited with approval a New York statute that made sure that once a case was filed, a hearing would take a place within a day, and that a decision would follow, at most, two days later.

Renton: Allowing Zoning/Licensing Schemes for Adult Businesses

Now fast forward to the 80's -- and a case involving speech that while sexual, was not obscene, and was thus protected by the First Amendment.

The case, decided in 1986, was Renton v. Playtime Theatres, Inc. There, the Court considered a First Amendment challenge to city zoning regulations that kept "adult" movie theaters at least 1,000 feet away from houses, churches, parks, and schools.

The defendants wanted to show adult movies in two theaters that fell within one of the prohibited 1,000-foot circles of land where they could not be situated. But the Court reasoned that while the defendants' films were protected by the First Amendment, the regulations limiting where the theaters could be situated were nonetheless constitutional.

Why? Because, the Court held, the zoning regulations at issue were merely "time, place, and manner" restrictions, which in theory only limit when, where, and how someone can speak -- not whether that person can speak at all. For this reason, time, place, and manner restrictions are often thought to be relatively innocuous from a First Amendment perspective.

After Renton, cities felt freer to zone adult theaters and other adult businesses, without worrying that First Amendment lawsuits would follow.

FW/PBS: Applying First Amendment Procedural Requirements to Adult Businesses

In 1990, in FW/PBS v. Dallas, the Court confronted a new issue that drew together the two areas addressed in Freedman and Renton, respectively: specifically, it asked whether some of Freedman's censorship procedures should be imported into the context of adult business zoning. The Court said yes, but it left ambiguous how much of Freedman applied.

Freedman had said that adult movie exhibitors were entitled to a prompt judicial decision on whether they'd complied with obscenity censorship law. But, did that also mean that adult businesses were entitled to a prompt judicial decision on whether they had complied with zoning law?

The nine Justices seemed to offer at least four different views as to exactly how similar adult business licensing procedures had to be to the movie censorship procedures at issue in Freedman. Specifically, the Justices divided as follows:

Justices Brennan, Blackmun, and Marshall would have simply applied Freedman -- which said "a prompt judicial determination must be available." (Emphasis added.)

In contrast, O'Connor, Stevens, and Kennedy would have applied a watered-down version of Freedman, under which all that was required was "the possibility" of "prompt judicial review in the event that the license is erroneously denied." (Emphases added.) (They also referred to the need for an "avenue" for review, as opposed to the need for a final judicial decision.)

Justices Rehnquist and White would not have applied Freedman at all. They seemed to suggest that adult businesses were not entitled to any kind of special First Amendment procedures -- even an open courthouse door.

Finally, Justice Scalia offered his own theory, which would have recognized "that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene." In other words, he would have allowed even those adult businesses that sold only First Amendment-protected materials to be closed down as obscene.

The Division Among Federal Appellate Courts About What a "Prompt" Decision Means

All this background brings us squarely to the Littleton case -- which has once again raised the issue of the procedures to which adult businesses are entitled before they can be closed down based on an alleged violation of zoning laws. In the Littleton case, the current Supreme Court will have to figure out what to do about the prior Court's four-way split in FW/PBS.

First, the current Court will have to decide if there is any clear precedent that can be divined from the combination of the four different views in FW/PBS. Second, if it does interpret FW/PBS as a precedent implicitly rejecting the prompt judicial decision requirement, the Court will have to decide whether to overrule that precedent.

Interestingly, while the FW/PBS Court seemed generally hostile to this requirement, it might very well be possibly to squeak out a 5-4 majority in favor of it -- even if it means overruling the prior Court's views.

Justices Breyer, Souter, and Ginsburg -- all strong First Amendment jurists -- will almost certainly favor the prompt judicial decision requirement. So might Justice Thomas. Justice Kennedy, whose evolution as a Justice has been profound, could easily change his mind and reverse his prior stance. Finally, Justice Stevens, too, may be enough of a maverick to reconsider his prior stance that an open avenue of review -- as opposed to a quick decision -- is enough.

Let's hope so, because the possibility of quick review, without the promise of a quick decision, is cold comfort indeed. Unlike cases about money, where court delays can be compensated, cases about speech can lead to "chilling effects" that can cause irretrievable losses -- which take the form of speech unheard, and messages unsent.

Of course, it's easy to dismiss the chilling effect on adult businesses as comparatively unimportant. But to do so, one would first have to look at -- and judge -- their films and books as unworthy. And the First Amendment is supposed to protect the right to say what one chooses -- not only the right to say what others think is worthy.

In the end, the Littleton case will test to what extent adult businesses will be treated like other First Amendment-protected businesses. Certainly if a political bookstore were subject to zoning, the zoning law's procedures would be held to the highest constitutional standards. But will Christal's get the same treatment?

The FW/PBS precedent indicates the answer, in that earlier Supreme Court's mind, was no -- but the current Supreme Court may say yes instead. If it does, then Christal's will be able to stay in its current location; if it doesn't, the store will likely have to move elsewhere -- or, if no attractive real estate is available, it will have to move out of Littleton altogether. While that might make Littleton happy, it will also mean that speech there is a little less free.


Julie Hilden, a FindLaw columnist, was a Southern District of New York juror in 2002, and a clerk in the Southern District of New York in 1995-96. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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