US Supreme Court Briefs

No. 99-1680 IN THE Supreme Court of the United States CITY NEWS AND NOVELTY, INC., Petitioner, v. CITY OF WAUKESHA, WISCONSIN, Respondent. On Writ of Certiorari to the Court of Appeals of Wisconsin BRIEF FOR RESPONDENT CURT R. MEITZ                 THOMAS C. GOLDSTEIN VINCENT D. MOSCHELLA            (Counsel of Record) MILES W.B. EASTMAN            AMY HOWE OFFICE OF THE CITY ATTORNEY   THOMAS C. GOLDSTEIN, P.C. City of Waukesha              4607 Asbury Pl., N.W. 201 Delafield St.             Washington, DC 20016 Waukesha, WI 53188            (202) 237-7543 (262) 524-3520 Counsel for Respondent October 26, 2000 QUESTION PRESENTED Is a licensing scheme which acts as a prior restraint re- quired to contain explicit language which prevents injury to a speaker's rights from want of a prompt judicial decision? TABLE OF CONTENTS                                                            Pages QUESTION PRESENTED.............................................i TABLE OF CONTENTS.............................................ii TABLE OF AUTHORITIES .........................................iv BRIEF FOR RESPONDENT ..........................................1 OPINIONS BELOW.................................................1 JURISDICTION AND SUGGESTION OF MOOTNESS........................1 CONSTITUTIONAL AND ............................................5 STATUTORY PROVISIONS INVOLVED .................................5 STATEMENT......................................................6    I.  WAUKESHA'S ADULT BUSINESS LICENSING SCHEME..............6    II. THE NONRENEWAL OF PETITIONER'S LICENSE..................9        1. PETITIONER'S VIOLATIONS OF THE ORDI-           NANCE................................................9        2. THE ADMINISTRATIVE PROCEEDINGS. ....................10        3. THE CIRCUIT COURT PROCEEDINGS. .....................12        4. THE APPELLATE PROCEEDINGS...........................13        5. THIS COURT'S ORDER GRANTING CER-           TIORARI.............................................16 SUMMARY OF ARGUMENT...........................................17 ARGUMENT......................................................19    I. PETITIONER'S PRINCIPAL ARGUMENT, IN WHICH IT       CHALLENGES THE TIMING OF ADMINISTRATIVE       DECISIONMAKING UNDER A WISCONSIN STATE       STATUTE, IS BOTH WRONG AND IRRELEVANT TO      THE QUESTION PRESENTED. ................................19       1. THE FIXED ADMINISTRATIVE TIME LIMITS          SATISFY THE FIRST AMENDMENT..........................19       2. PETITIONER'S ARGUMENT IS OUTSIDE THE          SCOPE OF THE QUESTION PRESENTED. ....................20   II. WAUKESHA MAKES PROMPT JUDICIAL REVIEW       AVAILABLE TO APPLICANTS FOR ADULT-BUSINESS       LICENSES. ..............................................24       1. THE PROMPT JUDICIAL DETERMINATION          REQUIREMENT APPLIES TO CONTENT-BASED         CENSORSHIP SCHEMES, NOT CONTENT-         NEUTRAL LICENSING ORDINANCES. .......................25       2. THE TWO CONCERNS UNDERLYING THE          "PROMPT JUDICIAL DETERMINATION" RE-          QUIREMENT ARE INAPPOSITE HERE........................28          a. Self-censorship...................................29          b. Judicial expertise................................32       3. PETITIONER'S REMAINING ARGUMENTS ARE          UNAVAILING. .........................................39       4. ACCEPTING PETITIONER'S ARGUMENT          WOULD CAUSE SUBSTANTIAL, UNWAR-          RANTED HARM TO IMPORTANT MUNICIPAL          AND JUDICIAL INTERESTS. .............................40 CONCLUSION....................................................44 TABLE OF AUTHORITIES                                                            Pages  Arcara v. Cloud Books, 478 U.S. 697 (1986)................32, 38 ASARCO v. Kadish, 490 U.S. 605 (1989) .........................5 Barnes v. Glen Theatre, 501 U.S. 560 (1991) ..............32, 33 Blount v. Rizzi, 400 U.S. 410 (1971) .....................24, 26 Brownlow v. Schwartz, 261 U.S. 216 (1923)......................4 Burch v. American Family Mut. Ins. Co., 543 N.W.2d 277 (Wis. 1996) ...............................................3 California v. Grace Brethren Church, 457 U.S. 393 (1982)........................................................41 Cantwell v. Connecticut, 310 U.S. 296 (1940)..................35 Chevron U.S.A. v. NRDC, 437 U.S. 837 (1984)...................35 City News & Novelty, Inc. v. City of Waukesha, 487 N.W.2d 316 (Wis. Ct. App. 1992)...............................36 City of Erie v. Pap's A. M., 120 S. Ct. 1382 (2000) ......32, 34 City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) ......32 County of Kenosha v. C & S Management, 588 N.W.2d 236 (Wis. 1999) ..............................................13 Diffenderfer v. Central Baptist Church of Miami, Fla., 404 U.S. 412 (1972) (per curiam)...........................5, 18 Elrod v. Burns, 427 U.S. 347, 372 (1976). ....................29 Fort Wayne Books v. Indiana, 489 U.S. 46 (1989) ..............24 Freedman v. Maryland, 380 U.S. 51 (1965) .................passim Fusari v. Steinberg, 419 U.S. 379 (1975)......................18 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ......passim Golden v. Zwickler, 394 U.S. 103 (1969)........................3 Graff v. City of Chicago, 9 F.3d 1309 (CA7 1993) (en banc).................................................31, 33, 41 Hall v. Beals, 396 U.S. 45 (1969)..............................6 Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67 (1983) (per curiam)...................................................3 Kmiec v. Town of Spider Lake, 211 N.W.2d 471 (Wis. 1973) ........................................................36 Lawrence v. Chater, 516 U.S. 163 (1996) (per curiam) .........18 Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)...............................4 Murphy v. Hunt, 455 U.S. 478 (1982) (per curiam) ..............4 NCAA v. Smith, 525 U.S. 459 (1999) ...........................20 New York v. P.J. Video, 475 U.S. 868 (1986) ..................24 Northern States Power Co. v. Bugher, 525 N.W.2d 723 (Wis. 1995) ...................................................3 Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) ..........33 Patsy v. Board of Regents, 457 U.S. 496 (1982) ...............36 Richardson v. McChesney, 218 U.S. 487 (1910)...................3 Southeastern Promotions v. Conrad, 420 U.S. 546 (1975)....................................................passim State ex rel. Fireman's Fund Ins. Co. v. Hoppmann, 240 N.W.2d 884 (Wis. 1932)........................................29 State ex rel. Ruffalo v. Common Council of City of Kenosha, 157 N.W.2d 568 (Wis. 1968)...........................31 State v. Goulette, 222 N.W.2d 622 (Wis. 1974)..................9 Tee & Bee, Inc. v. City of West Allis, 571 N.W.2d 438 (Wis. App. 1997) ..............................................8 Teitel Film Corp. v. Cusak, 390 U.S. 139 (1968) (per curiam)...................................................23, 24 Terpstra v. Soiltest, Inc., 218 N.W.2d 129 (Wis. 1974). ......20 Texas v. Johnson, 491 U.S. 397 (1989) ........................34TK's Video v. Denton, Tex., 24 F.3d 705 (CA5 1994) ...........33 United States v. Alabama, 362 U.S. 602 (1960)..................6 United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)....................................................24 Vance v. Universal Amuse. Co., 445 U.S. 308 (1980) (per curiam)..................................................24 Wayte v. United States, 470 U.S. 598 (1985) ..................38 Wis. Stat. § 68.01.........................................9, 36 Wis. Stat. § 68.09.....................................8, 11, 20 Wis. Stat. § 68.11(1) ........................................15 Wis. Stat. § 68.11(2) ....................................16, 35 Wis. Stat. § 68.13(1) .........................................9 Young v. American Mini Theatres, 427 U.S. 50 (1976)...30, 33, 41 Statutes 28 U.S.C. § 1257(a) ...........................................1 Wauk. Mun. Code § 2.11(1) .....................................7 Wauk. Mun. Code § 8.195 (preamble) ............................6 Wauk. Mun. Code § 8.195(1) ....................................6 Wauk. Mun. Code § 8.195(10)(c).................................6 Wauk. Mun. Code § 8.195(11) ...................................7 Wauk. Mun. Code § 8.195(2) ....................................5 Wauk. Mun. Code § 8.195(3)(c)...............................7, 9 Wauk. Mun. Code § 8.195(3)(d).............................passim Wauk. Mun. Code § 8.195(7)(a)..................................6 Wauk. Mun. Code § 8.195(7)(b)..................................6 Wauk. Mun. Code § 8.195(7)(c)..................................6 Wauk. Mun. Code § 8.195(9)(a)..................................6 Wauk. Mun. Code § 8.195(9)(b)..................................6 Wauk. Mun. Code § 8.195(9)(c)..................................6 Wis. Stat. § 68.08.............................................8 Wis. Stat. § 68.09(3) .........................................8 Wis. Stat. § 68.10(2) .........................................8 Wis. Stat. § 68.11(2) .........................................7 Wis. Stat. § 68.11(3) .....................................7, 15 Wis. Stat. § 68.12(1) .........................................8 Wis. Stat. § 68.13.............................................8 Wis. Stat. § 68.16.............................................7 Wis. Stat. § 77.52............................................37 Wis. Stat. § 781.02...........................................25 Wis. Stat. § 813.02(1)(a).....................................25 Wis. Stat. § 944.21............................................6 Wis. Stat. Ch. 68 .............................................7 BRIEF FOR RESPONDENT OPINIONS BELOWOpinions and orders were entered in this case at both the administrative and judicial levels. The unpublished findings of the Waukesha Common Council Ordinance and Licensing Committee are reproduced at Respondent's Lodging ("Resp. Lodging"), vol. I, tab 2.1 The unpublished findings of the Waukesha Common Council are reprinted at Pet. App. 82a- 84a. The unpublished findings of the Waukesha Administra- tive Review Appeals Board are reprinted at Pet. App. 72a- 81a. The Wisconsin circuit court's unpublished opinion and order holding in favor of Respondent City of Waukesha in Petitioner's state-law certiorari action is reprinted at Pet. App. 55a-71a. The Wisconsin court of appeals' unpublished opin- ion seeking to certify the case to the Wisconsin supreme court is reprinted at Pet. App. 44a-52a. The Wisconsin supreme court's unpublished order denying certification is reprinted at Pet. App. 53a. The Wisconsin court of appeals' order af- firming the circuit court's decision is published at 604 N.W.2d 870 and reprinted at Pet. App. 1a-43a. The Wiscon- sin supreme court's unpublished order denying discretionary review is reprinted at Pet. App. 54a. JURISDICTION AND SUGGESTION OF MOOTNESS Petitioner filed a petition for a writ of certiorari on April 17, 2000. This Court granted certiorari, limited to the third question presented by the petition, on June 19, 2000. 120 S. 1 For the Court's convenience, Respondent is lodging relevant ex- cerpts of the lower court record in three volumes. Volume I princi- pally contains relevant administrative filings and rulings in chronological order. Volumes II and III contain the pleadings and transcripts from the administrative appeal.Ct. 2687 (2000). Petitioner invokes this Court's jurisdiction pursuant to 28 U.S.C. § 1257(a). Respondent notes the possibility that this action is moot because even if this Court ruled in Petitioner's favor on the question presented, that ruling would not remedy any injury suffered by Petitioner.2 This case arises because, pursuant to a municipal ordinance, Respondent City of Waukesha has re- fused to renew Petitioner's license to operate an adult busi- ness. Petitioner's state court complaint alleges that the City's action is invalid because, inter alia, the City's ordinance gives the City's decisionmakers effectively unbridled discre- tion. Resp. Lodging, vol. I, tab 11. If Petitioner had pre- vailed on that claim or any other that went to the merits of the licensing determination in this case, then the City's decision not to renew Petitioner's license presumably would have been invalidated. The state court of appeals held, however, that the licensing determination was entirely valid, Pet. App. 12a-18a, 29a-42a, and this Court declined to review that holding, 120 S. Ct. 2687 (2000). This Court instead granted certiorari lim- ited to the question whether the Waukesha ordinance is inva- lid insofar as it fails to guarantee a "prompt judicial decision" on appeal from the City's licensing determination. Id.; see Pet. i. So far as Respondent can determine, a ruling in Peti- tioner's favor on the single question on which this Court granted certiorari would not redress any injury suffered by Petitioner. Because of this Court's limited order granting certiorari, the lower courts' holding that the City properly de- clined to renew Petitioner's license is effectively final. All that is left in dispute is whether the lower courts should have issued their decisions on a more expeditious timetable. But 2 As discussed fully in the text, the possibility of mootness arose when this Court entered its Order granting certiorari limited to a single question. Respondent accordingly could not have brought the matter to the Court's attention in the brief in opposition.that question is entirely academic to Petitioner, which no longer has a license and could not on the basis of any decision by this Court seek to have its license reinstated. Put concretely, if this Court were to rule for Petitioner, the case would be remanded to the Wisconsin courts. Because this Court's holding would not call into question any other aspect of the Waukesha ordinance, the lower courts would simply reaffirm, on the basis of the law of the case, their holding that the City properly refused to renew Petitioner's license. See Burch v. American Family Mut. Ins. Co., 543 N.W.2d 277, 279 (Wis. 1996); see also Pet. App. 28a (sever- ing unconstitutional hearing provision). Similarly, res judi- cata would bar a subsequent plenary action by Petitioner seeking reinstatement of its license. See Northern States Power Co. v. Bugher, 525 N.W.2d 723, 727-28 (Wis. 1995). The case accordingly appears to be moot. See Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 72-73 (1983) (per cu- riam) (case mooted when petitioner's injury would remain the same "irrespective of the outcome" in this Court); Richardson v. McChesney, 218 U.S. 487, 492 (1910) ("The thing sought to be prevented has been done, and cannot be undone by any judicial action."). So far as Respondent can determine, four arguments that Petitioner could raise in asserting a concrete interest in the outcome of this case are unavailing. First, Petitioner could not apply for a new license and thereby benefit from a deci- sion in its favor in this case. The City's decision not to renew Petitioner's license disables Petitioner as a matter of law from reapplying for a license at that location for one year. Wauk. Mun. Code § 8.195(7)(e). Moreover, Petitioner has made clear its intention to cease operations in Waukesha perma- nently. See Resp. Lodging, vol. I, tab 14. See generally Golden v. Zwickler, 394 U.S. 103, 109 (1969) (case moot al- though plaintiff might again run for Congress, because "[w]e think that under all the circumstances of the case the fact that it was most unlikely that the Congressman would again be a candidate for Congress precluded a finding that there was 'sufficient immediacy and reality' here"); Brownlow v. Schwartz, 261 U.S. 216, 217 (1923) ("The case has become moot for two reasons: (1) because the permit, the issuance of which constituted the sole relief sought by petitioner, has been issued and the building to which it related has been completed, and (2) because, the first reason aside, petitioner no longer has any interest in the building, and therefore has no basis for maintaining the action."). Second, this is not one of the limited classes of cases in which the normal case-or-controversy requirement should be relaxed because the question is capable of repetition yet evading review. See Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam). It is correct that an adult business's li- cense generally will expire before this Court can rule on a challenge of this sort. But adult businesses are free to chal- lenge the constitutionality of licensing ordinances in plenary actions at any time. See infra at 37-38. Such suits generally are not mooted by the passage of time because (a) the adult business continues to satisfy the requirements for a license, or (b) the challenge is brought by an applicant for a new license, as in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). Indeed, it appears that every other decision involved in the circuit conflict on the question presented by this case arose from a plenary civil rights action. See Pet. App. 21a-22a (collecting cases). So far as the decisions of the courts of ap- peals reflect, none of those cases became moot on appeal. Third, this case is not saved from mootness on the ground that it is a facial challenge to the Waukesha ordinance. A party may bring a facial challenge alleging the overbreadth of a statute before its application. Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). But that party must still have a concrete interest in the outcome of the challenge. See FW/PBS, 493 U.S. at 233- 35.Fourth, petitioner could not assert a right to damages or any other remedy on the basis of a holding in its favor by this Court. Petitioner's complaint includes a generic claim for appropriate relief but does not state a claim for damages (see Resp. Lodging, vol. I, tab 11, at 4-5), and Petitioner has never requested damages at any stage of the case. Moreover, the City did not in fact revoke Petitioner's license or otherwise take any action against City News & Novelty during the pen- dency of the state court proceedings. Instead, the Common Council passed a resolution expressly stating that Petitioner would be allowed to continue operating at least until the trial court's decision on Petitioner's appeal, Resp. Lodging, vol. I, tab 9 - precisely the same result as Petitioner maintains is re- quired by the First Amendment. For the foregoing reasons, the Court may find it appropri- ate to dismiss the petition for a writ of certiorari as improvi- dently granted. See ASARCO, Inc. v. Kadish, 490 U.S. 605, 621 n.1 (1989). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment of the United States Constitution provides in relevant part that "Congress shall make no law * * * abridging the freedom of speech * * * ." The provisions of Waukesha Municipal Code § 8.195 are reprinted in the ap- pendix to this brief at 1a-14a. The provisions of Chapter 68 of the Wisconsin Statutes are reprinted in the appendix to this brief at 15a-21a. Respondent calls to the Court's attention an amendment to Section 8.195 that, while relevant to this case, does not affect the question on which this Court granted certiorari for the rea- sons discussed infra at 20-24. See Diffenderfer v. Central Baptist Church of Miami, Fla., 404 U.S. 412, 414 (1972) (per curiam) (this Court will "review the judgment * * * in light of [the] law as it now stands, not as it stood when the judgment below was entered" (citing Hall v. Beals, 396 U.S. 45, 48 (1969); United States v. Alabama, 362 U.S. 602, 604 (1960))). In the proceedings below, the Wisconsin court of appeals invalidated and severed subsection (3)(d) of the Waukesha ordinance, which guaranteed an adult business the right to a hearing on appeal from a decision not to grant or renew a license. The court of appeals held that the hearing provision failed to provide a specific deadline for ruling after the hearing. Pet. App. 25a-26a. In response to that decision, the Waukesha Common Council amended subsection (3)(d) to guarantee that "[a] final determination stating the reasons therefore, together with a copy of any official recording or transcript of the hearing, shall be rendered within 20 days of the commencement of the hearing." STATEMENT Respondent first outlines the requirements for securing and renewing a license to operate as an adult business in Waukesha, Wisconsin. It then recounts the procedural history of this case, including the bases for the City's refusal to renew the license of Petitioner City News & Novelty. I. WAUKESHA'S ADULT BUSINESS LICENSING SCHEME Respondent City of Waukesha is located sixteen miles west of Milwaukee, Wisconsin and has a population of ap- proximately 64,000. An "adult oriented establishment" must have a license to operate in Waukesha. See Wauk. Mun. Code ("WMC") § 8.195(2). Licensing is governed by the Municipal Code, which defines such an establishment to in- clude businesses that feature topless dancers or strippers, that provide facilities to view adult films, or that have as a sub- stantial portion of their stock in trade the sale, rental, or viewing of adult films or periodicals. Id. § 8.195(1); see also id. (defining adult films and periodicals by reference to speci- fied anatomical areas and sexual activities). In enacting the ordinance, the City concluded based on the experience of other municipalities that adult businesses canlead to "increased levels of criminal activities including pros- titution" and other dangerous transient sexual acts, and fur- thermore can undermine the value of surrounding properties. WMC § 8.195 (preamble). The requirements of the ordinance seek to target these adverse secondary effects directly. Par- ticularly relevant to this case, an adult business may not admit minors, may not permit customers to engage in sexual acts on the premises, and must ensure that any booths for viewing adult films are open, accessible, and well lighted. WMC § 8.195(9)(a), (b), (c), (10)(c). Thus, in determining whether to grant or renew a license, the City does not inquire into the content of the applicant's speech, as by determining whether films or periodicals are obscene, which is a matter left en- tirely to state law. See Wis. Stat. § 944.21. Nor do the crite- ria for securing a license restrain speech in any respect. A license to operate an adult establishment, once granted, must be renewed annually. WMC § 8.195(7)(a). Renewal applications should be filed at least sixty days before expira- tion, but the only penalty for failing to meet that deadline is that the City assesses a late fee of $100. Id. § 8.195(7)(a), (b). The initial determination whether to renew a license is made by the Common Council (which is the city council) based on a recommendation by its Ordinance and Licensing Committee. Throughout the administrative process, the bur- den of proving that a license should not be renewed rests on the city attorney. Pet. App. 80a-81a. The City makes an ini- tial determination whether to renew a license within twenty- one days of receiving the application, and the city clerk is tasked with notifying the applicant of the ruling. WMC § 8.195(3)(c). If the City declines to renew a license, only the business may appeal; municipal officials may not at any stage of the administrative process seek review of a decision to renew a license. Specifically, the adult business may elect to appeal the nonrenewal determination under either the municipal code, see WMC § 8.195(3)(d), or state law, see Wis. Stat. ch.68. (The state scheme remains available under Wisconsin law unless a municipality expressly elects not to follow it, see Tee & Bee, Inc. v. City of West Allis, 571 N.W.2d 438, 441 (Wis. App. 1997) (citing Wis. Stat. § 68.16), which Waukesha has not done, see WMC §§ 2.11(1), 8.195(11); Pet. App. 23a, 28a.) Under the municipal scheme, including the amended hearing provision (see supra at 5-6), the City's decisionmak- ing takes a maximum of fifty-one days. Within ten days of an initial nonrenewal decision by the City, the business may file an appeal with the City's Administrative Review Appeals Board ("Appeals Board"), required to be an impartial deci- sionmaker, which must hold a hearing within ten days. WMC § 8.195(3)(d) (incorporating Wis. Stat. § 68.11(2)). The hearing permits representation by counsel, the presentation of evidence and witnesses sworn under oath, and cross- examination of opposing witnesses. Id. The adult business's counsel may issue subpoenas. Id. The business may also re- quire that an official record of the proceedings be made at the City's expense. Id. (incorporating Wis. Stat. § 68.11(3)). The Board must issue a ruling, together with a copy of the record, within twenty days of the commencement of the hearing. WMC § 8.195(3)(d). If the adult business exercises its right to pursue an appeal under the alternate state system instead, the City's decision- making takes a maximum of seventy-one days because the business proceeds through an additional stage of review and because the time periods for appealing and for conducting the hearing before the Appeals Board are extended. An initial determination not to renew a license may be appealed within thirty days to the Common Council, which must make its de- cision within fifteen days. Wis. Stat. §§ 68.08, 68.09(3). If the Council votes not to renew the license, the business may within thirty days seek review before the Appeals Board, which must hold a hearing within fifteen days and issue a ruling within twenty days thereafter. Id. §§ 68.10(2), 68.11(1), 68.12(1). Under either the municipal or the state scheme, if the Ap- peals Board votes not to renew a license, the business may as a matter of right secure judicial review by filing a state circuit court certiorari action within thirty days. Wis. Stat. § 68.13; WMC § 8.195(3)(d). In such an action, the City's licensing determination carries a presumption of correctness, such that the court will inquire only whether "(1) the board kept within its jurisdiction; (2) the board acted according to the law; (3) the action was arbitrary, oppressive or unreasonable; and (4) the evidence presented was such that the board might rea- sonably make the order or determination in question." Pet. App. 8a (citing State v. Goulette, 222 N.W.2d 622, 626 (Wis. 1974)); see also id. 55a-56a. Nor may the court "add to the record or take new evidence except in unusual circum- stances." Id. 70a. The court "may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision." Wis. Stat. § 68.13(1). These remedies, however, are not exclusive. Id. § 68.01. II. THE NONRENEWAL OF PETITIONER'S LICENSE 1. PETITIONER'S VIOLATIONS OF THE ORDINANCE. Beginning in 1989, Petitioner City News & Novelty oper- ated in the heart of downtown Waukesha, two doors from a children's toy store and near several churches. Petitioner sold a variety of products, including drug paraphernalia (such as pipes and rolling papers generally used for smoking mari- juana) and sexual novelty items. Petitioner also provided booths in which patrons could watch pornographic videotapes and sold a variety of pornographic videotapes and magazines. Because these adult materials constituted a substantial portion of its stock in trade, Petitioner was required to be licensed as an adult oriented establishment. See WMC § 8.195(2)(a).From 1990 to 1994, Petitioner annually requested and re- ceived renewals of its license. There is no suggestion in the record that the City, either in that period or later, ever har- assed or improperly treated Petitioner or its customers. This case arises because Petitioner persistently violated the municipal code in late 1994 and throughout 1995. On several occasions, police officers found minors on the prem- ises. Patrons in several instances were found engaging in sexual acts and exposing themselves to others in the store. (Rather than detail here the explicit nature of the sexual acts, some of which go well beyond what Petitioner euphemisti- cally describes as "solitary lewd conduct," Pet. Br. 9, Re- spondent directs the Court's attention to the administrative record. See Resp. Lodging, vol. I, tab 2, at 2; id., tab 10, at 6- 11.) Petitioner also modified the entrance to its booths to ob- struct open visibility and failed to correct that violation of the code despite repeated warnings from the city's building in- spector. Id., tab 10, at 8-9. 2. THE ADMINISTRATIVE PROCEEDINGS. On November 17, 1995, Petitioner applied for renewal of its operating license for the annual period beginning January 26, 1996. Resp. Lodging, vol. I, tab 1. The application was considered at the December 18, 1995, meeting of the Com- mon Council's Ordinance and License Committee, which voted to recommend nonrenewal based on Petitioner's nu- merous violations of the municipal code over the previous year. Id., tab 2. The Common Council adopted that recom- mendation the next day. Id., tab 3.3 3 Apparently due to issues relating to the scheduling of Council meetings, the City in this case made its determination in 31 days, rather than the 21 days specified by WMC § 8.195(3)(c). Respon- dent does, however, view the 21-day deadline as binding (and, in- deed, will defer the expiration of a license for the length of any pe- riod in which the City fails to comply with a mandatory deadline), Because Petitioner informally advised the City of its in- tention to appeal pursuant to the state scheme rather than the municipal scheme, the Common Council scheduled the matter for consideration at its next meeting on January 16, 1996. But by that date, some four weeks after the initial determina- tion, Petitioner still had not appealed. Resp. Lodging, vol. I, tab 4. Petitioner waited until the last possible day (which fell only a week before its license was set to expire) to file its short notice of appeal. Id., tab 5. Within days, the Council held a special session, at which it reviewed Petitioner's appli- cation and decided against renewal. Id., tab 6. At that time, the Council passed a resolution guaranteeing Petitioner's right to operate pending review before the municipal Appeals Board. Id. Petitioner waited a full three weeks before filing its one- sentence petition for review before the Appeals Board. Resp. Lodging, vol. I, tab 7. Petitioner also advised the City that it was waiving all time limits on the disposition of its appeal. Id., tab 8; see also Wis. Stat. § 68.09(3) (providing that appli- cant may waive applicable deadlines). Subsequently, the Council passed a special resolution further extending Petitioner's license to operate pending any later judicial review in state trial court. Resp. Lodging, vol. I, tab 9. As would become apparent, Petitioner therefore had no incentive to proceed through the appeals process expedi- tiously. (Amicus Liberty Project thus is correct, Br. 14, that "17 months elapsed between City News's application for a license and the first judicial decision on the merits," but re- sponsibility for that delay lies squarely on the shoulders of Petitioner.) The Appeals Board met four times regarding Petitioner's license. Resp. Lodging, vols. II and III (transcripts). The ad- ditional dates were provided principally to accommodate Pe- which is the relevant point for purposes of this facial challenge to the ordinance.titioner's request that it be able to locate, interview, and sub- poena witnesses who had knowledge of Petitioner's alleged violations of the municipal code and because Petitioner made extraordinarily extensive use of its right to examine witnesses and to raise objections. At the hearings, detailed testimony was received. Both Petitioner and the city attorney (who op- posed renewal) also submitted extensive briefs and proposed findings of fact, as well as responses to each other's submis- sions. Id., vol. II, tabs 1-6. On June 28, 1996, the Board is- sued a decision sustaining the nonrenewal determination and setting forth detailed reasons for its decision. Id., vol. I, tab 10. 3. THE CIRCUIT COURT PROCEEDINGS. Petitioner commenced this suit on July 15, 1996, filing a state-law certiorari action to appeal the City's decision not to renew its license. Resp. Lodging, vol. I, tab 11. Petitioner did not challenge either the constitutionality of the Wisconsin state law statutory scheme for appealing licensing determina- tions or the renewal criteria set forth in WMC § 8.195. See Pet. App. 57a (trial court ruling; "plaintiff is not attacking Wisconsin Statute Chapter 68"); id. 59a ("Plaintiff does not attack the nature of the conduct which 'if found' constitute a violation of the ordinance."). Instead, the complaint alleged that the nonrenewal was invalid because the City's decision was based on insufficient evidence, because the nonrenewal determination rested on conduct not properly attributable to Petitioner, because Petitioner allegedly did not have sufficient notice of its violations of the municipal code, and because "Ordinance No. 8.195 is void and unconstitutional." Resp. Lodging, vol. I, tab 11, at 3-4. Petitioner subsequently de- layed the circuit court's ruling on its complaint, successfully requesting a forty-five-day extension of time to file its brief on the merits and a further fifteen-day extension to file its re- ply brief. Id., tab 12. After briefing was completed, the circuit court ruled for Respondent. See Pet. App. 55a-71a. The court first rejectedeach of Petitioner's facial challenges to WMC § 8.195. The court concluded that the ordinance sufficiently limits the dis- cretion of city officials, given that it sets out express criteria for renewal and specifies that particular municipal violations must be found in order to justify nonrenewal, a determination that "is then subject to review [in court] under the substantial evidence test." Pet. App. 58a-60a. Furthermore, the ordi- nance sets sufficient time limits on the licensing determina- tion because it contains specific time periods and the City specifically must complete all inspections of an adult business within the twenty-one-day period for making a license deter- mination. Id. 60a-64a. The circuit court also rejected each of Petitioner's specific arguments regarding the application of WMC § 8.195 in this case. The court concluded that the City's decision had been made by impartial decisionmakers at each stage and that the City had provided Petitioner with sufficient warning of the charged violations of the municipal code. Pet. App. 65a-69a. The City also was justified in refusing to renew Petitioner's license rather than merely suspending it, a decision that is "within the discretion of the licensing authority." Id. 69a. Finally, each of the violations found by the Board was sup- ported by substantial evidence. Id. 70a-71a. 4. THE APPELLATE PROCEEDINGS. On Petitioner's appeal, the Wisconsin court of appeals af- firmed, Pet. App. 1a-43a,4 specifying from the outset (as had the circuit court) that Petitioner challenged only the 4 The case was delayed in the court of appeals for two reasons out- side the parties' control. The court of appeals unsuccessfully sought to refer the case to the state supreme court. Pet. App. 44a- 52a, 53a. The court of appeals also stayed the proceedings on ap- peal for nine months pending the state supreme court's decision in another case, County of Kenosha v. C & S Management, 588 N.W.2d 236 (Wis. 1999), which ultimately proved nondispositive in this case.Waukesha ordinance, not the separate state scheme. Pet. App. 2a (court of appeals ruling; explaining that petitioner alleged "that the City's adult establishment licensing scheme is unconstitutional"); id. 28a ("ch. 68 sets forth narrow, defi- nite and objective standards for bringing an appeal, and City News does not directly challenge this chapter"). The court of appeals held that the immediate availability of judicial review as a matter of right through a certiorari pro- ceeding to challenge the nonrenewal of a license constitutes "prompt judicial review" as required by this Court's decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). See Pet. App. 22a. The court of appeals specifically contrasted this Court's determination in Freedman v. Maryland, 380 U.S. 51 (1965), that a content-based censorship law "must 'assure a prompt final judicial decision,'" Pet. App. 20a (quoting 380 U.S. at 59) (emphasis in court of appeals' opin- ion), with Justice O'Connor's later determination for the plu- rality in FW/PBS that a content-neutral licensing scheme need only provide "the 'possibility' and 'availability' of prompt judicial review," id. (quoting 493 U.S. at 227, 228 (emphasis added)). Moreover, a municipality does not even have the power to require a state court to decide a licensing challenge on an expedited schedule. Id. 22a. The court of appeals therefore held, agreeing with the First, Fifth, and Seventh Cir- cuits, that "prompt access to judicial review qualifies as 'prompt judicial review'" under FW/PBS. Id. 21a-22a (em- phasis in original). That requirement was fully met here be- cause Petitioner had the right, which it duly exercised, to file a certiorari action immediately after the Appeals Board's de- cision. Id. The court of appeals rejected Petitioner's remaining alle- gations that WMC § 8.195 is facially invalid, holding that "the City's licensing scheme does set forth specific guidelines and expressly provides that a violation of such guidelines constitutes a ground for nonissuance or nonrenewal." Pet. App. 15a. Furthermore, the ordinance both provides a spe- cific twenty-one-day time limit in which the City must make the renewal determination and also maintains the status quo during the renewal determination "because the common council's review of an application is completed prior to expi- ration of the license." Id. 19a. Finally, an application must be reviewed by an impartial decisionmaker. Id. 29a (citing Wis. Stat. § 68.11(1)). The court of appeals also rejected Petitioner's challenges to the application of WMC § 8.195 in this case. Not only were the City's decisionmakers impartial, but the City also satisfied every other requirement of due process, "providing notice of the charges, an opportunity to respond to and chal- lenge the charges, an opportunity to present witnesses, and an opportunity to confront and cross-examine opposing wit- nesses." Pet. App. 31a-36a. Moreover, nonrenewal rather than mere suspension was the appropriate sanction for Peti- tioner's "nine separate ordinance violations occurring within a one-year period." Id. 37a (emphasis added). Indeed, be- cause multiple violations resulted in convictions of a City News & Novelty director, "suspension [was] not an available sanction in this case." Id. Finally, substantial evidence (in- cluding sworn testimony of several police officers) supported each finding of a violation by Petitioner. Id. at 38a-42a. The court of appeals did agree with Petitioner, however, that WMC § 8.195 was invalid in a single respect that the City has since corrected by amending the ordinance. See su- pra at 5-6. Under subsection 3(d) as then enacted, if an appli- cant appealed from a nonrenewal determination, the Common Council was required to conduct a hearing within ten days, but otherwise was "given no direction as to what it must do following the hearing or when it must presumably take action in response to the hearing." Pet. App. 25a-26a. In the court of appeals' view, the ordinance thereby "create[d] a risk of an indefinite delay by putting an applicant at the mercy of the licensing body." Id. 25a. But the court of appeals concluded that, as a matter of Wisconsin law, the invalid public hearingprovision was severable from the remainder of the city ordi- nance, which was otherwise constitutional. Id. 26a-28a. In response to the court of appeals' decision, Waukesha amended subsection 3(d) to specify that the Council must is- sue a decision within twenty days of the commencement of the hearing. See supra at 5-6.5 5. THIS COURT'S ORDER GRANTING CERTIORARI. After the Wisconsin supreme court denied Petitioner's re- quest for review, Pet. App. 54a, this Court granted certiorari limited to the third question presented by Petitioner: whether "a licensing scheme which acts as a prior restraint [is] re- quired to contain explicit language which prevents injury to a speaker's rights from want of a prompt judicial decision." Pet. i; 120 S. Ct. 2687 (2000) (order granting certiorari). The petition for certiorari explained that the court of appeals' de- termination that the First Amendment does not require a prompt judicial decision on an appeal from a licensing deter- mination was the subject of a conflict in the circuits. Pet. 15- 16. The Court declined to consider, however, Petitioner's challenges that went to the merits of the actual licensing de- termination in this case - viz., whether the burden of persua- sion should have been placed on the City in the judicial pro- ceedings and whether WMC § 8.195 grants the City effec- tively unbridled discretion to refuse to renew a license. 5 Compare WMC § 8.195(3)(d) (as at Oct. 20, 1999), quoted in Pet. App. 24a ("If the applicant requests a hearing within 10 days of receipt of notification of denial, a public hearing shall be held within 10 days thereafter before the Council or its designated com- mittee as hereinafter provided.") with WMC § 8.195(3)(d) (current version) ("If the applicant requests a hearing within 10 days of re- ceipt of notification of denial, a public hearing shall be held within 10 days thereafter in conformity with sec. 68.11(2), (3), Wis. Stats. A final determination stating the reasons therefore, together with a copy of any official recording or transcript of the hearing, shall be rendered within 20 days of the commencement of the hearing.").SUMMARY OF ARGUMENT I. Petitioner principally argues that Chapter 68 of the Wisconsin Code is unconstitutional because it fails to guar- antee that an adult business's license-renewal application will be ruled upon before the license expires. That argument fails because an adult business may forgo Chapter 68's adminis- trative appeal procedures and instead utilize the municipal scheme provided by WMC § 8.195(3)(d), under which ad- ministrative review will be completed before its license ex- pires. In any event, Petitioner's challenge to Chapter 68 is not properly presented. This Court granted certiorari limited to the question whether WMC § 8.195 is invalid because it fails to guarantee a "prompt judicial decision" on appeal from an administrative licensing decision. Petitioner's argument, by contrast, is a challenge to Chapter 68 (not WMC § 8.195) and to the time limits for rendering an administrative decision (not the time limits for rendering a judicial decision on appeal). Indeed, Petitioner waived the argument it presses here by failing to raise it in the lower courts. II. WMC § 8.195 is constitutional because it provides an adult business with "access" to "prompt judicial review" as required by the plurality in FW/PBS, Inc. v. City of Dallas. The adult business may appeal as a matter of right from the administrative proceedings, which (as noted) will conclude before its license expires. Petitioner relies on inapposite deci- sions (principally Freedman v. Maryland and its progeny) holding that the First Amendment requires a "prompt judicial decision" on appeal from a determination by a censor that speech should be prohibited based on its contents. By con- trast, the ordinance at issue here (like the ordinance in FW/PBS), involves no censorship and no evaluation of the content of Petitioner's speech. The prophylactic concerns underlying the Freedman line of cases thus are inapplicable here. First, the FW/PBS plural-ity squarely rejected the argument that an adult business will be deterred from applying for a license by the absence of a guaranteed "prompt judicial decision." That conclusion is amply justified with respect to WMC § 8.195, which provides adult businesses with numerous procedural protections. In addition, an adult business may secure injunctive relief to prevent the expiration of its license in appropriate cases. Second, a "prompt judicial decision" is not required on the ground that courts have unique expertise in this area. Un- like determinations regarding the content of protected speech, it is municipalities that have expertise in determining whether content-neutral regulatory ordinances have been violated. Here, for example, a court has no particular expertise in de- termining whether minors were found on Petitioner's prem- ises and whether patrons were engaging in sex acts on the premises. And, again, the ordinance's numerous procedural protections guarantee that the administrative process will be fair and thorough. To be sure, courts do have special exper- tise in determining whether municipal ordinances are them- selves constitutional, but such claims are properly brought as plenary civil rights actions in court. Petitioner's remaining arguments for extending the "prompt judicial decision" requirement to the context of mu- nicipal licensing are unavailing. Petitioner primarily argues that municipal officials are unfaithful to the Constitution, a scurrilous claim that has no foundation in the record. Peti- tioner also fails to acknowledge the sea change its theory would work in municipal law and the role of the courts. Adult businesses would have a free pass to violate any con- tent-neutral regulation, such as tax and sanitation laws, until the courts approved an appropriate administrative sanction. The same would of course be true for expressive businesses of every kind, including publishers, newsstands, and movie theaters. Nothing in the Freedman line of cases supports such an extraordinary result.ARGUMENT I. PETITIONER'S PRINCIPAL ARGUMENT, IN WHICH IT    CHALLENGES THE TIMING OF ADMINISTRATIVE    DECISIONMAKING UNDER A WISCONSIN STATE    STATUTE, IS BOTH WRONG AND IRRELEVANT TO THE    QUESTION PRESENTED. Petitioner's principal argument in this Court is that a Wis- consin state law, Chapter 68 of the Wisconsin Statutes, is in- valid because it fails to guarantee that a municipality will is- sue a decision on an application to renew an adult business license before the license expires. Specifically, although an adult business in Waukesha may submit a renewal application sixty days prior to expiration of its license, the state statute permits the municipality a longer period - up to seventy-one days - to complete the administrative process. Indeed, Peti- tioner maintains, the time may be still longer because the statute does not specify how long a required "hearing" may last. See, e.g., Pet. Br. 19-20. 1. THE FIXED ADMINISTRATIVE TIME LIMITS SATISFY    THE FIRST AMENDMENT. Petitioner's arguments need not detain this Court because, wholly apart from the state statute, the Waukesha ordinance itself guarantees that the administrative process will be com- pleted in less than sixty days and further specifies the length of the administrative appeal hearing. In response to the deci- sion of the court of appeals invalidating a prior version of the municipal hearing provision, WMC § 8.195(3)(d), the City amended that subsection of the ordinance to provide that the Appeals Board must issue a "final determination * * * to- gether with a copy of any official recording or transcript of the hearing * * * within 20 days of the commencement of the hearing." As a result, the City has a maximum of fifty-one days to complete the administrative review process. In this facial challenge, in which Petitioner seeks prospective relief, it is the current version of the ordinance that is relevant to this Court's decision. Diffenderfer v. Central Baptist Church of Miami, Fla., 404 U.S. 412, 414 (1972) (per curiam), quoted supra at 5. The Court's practice is reflective of the sound view that the lower courts should be given the first opportu- nity to address the constitutionality of an amended statute or ordinance. See, e.g., Fusari v. Steinberg, 419 U.S. 379, 389 (1975); cf. Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam) (noting the advantage of "procuring the benefit of the lower court's insight before we rule on the merits"). Petitioner is correct that under the separate statutory scheme, the administrative process may take up to seventy- one days. But that hardly makes the statute unconstitutional, given that the adult business has the option of pursuing the more expeditious municipal appeals process. Moreover, even if it prefers the state scheme, the adult business is free to submit its renewal application more than seventy-one days before its license expires. See WMC § 8.195(7)(a) (applica- tion should be submitted a minimum of sixty days in ad- vance). On Petitioner's alternative view, the entire adminis- trative scheme must be held unconstitutional because the City will accept renewal applications up to the date that an appli- cant's license expires, see id. § 8.195(7)(b), which by defini- tion means that in some instances an applicant can choose to apply later than the minimum time the City may take to make its decision. This accordingly is not a case in which a licens- ing scheme is invalid because there is "no means by which an applicant may ensure" that its application will be decided in a timely manner. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 227 (1990) (plurality opinion) (emphasis added). 2. PETITIONER'S ARGUMENT IS OUTSIDE THE SCOPE OF    THE QUESTION PRESENTED. Petitioner's argument is also irrelevant because this Court granted certiorari on a very different issue: whether a licens- ing scheme is "required to contain explicit language which prevents injury to a speaker's rights from want of a prompt judicial decision." Pet. i (emphasis added); see 120 S. Ct. 2687 (2000) (granting certiorari limited to question three). As the petition for certiorari explained, the lower courts are di- vided over whether a municipal licensing scheme is invalid if it fails to guarantee that the adult business's appeal will be promptly decided. Pet. 15-16; see also Pet. App. 21a-22a. In this case, the Wisconsin court of appeals agreed with the First, Fifth, and Seventh Circuits that FW/PBS, Inc. v. City of Dallas requires only that the municipality provide access to prompt judicial review, although it noted the contrary view of other courts of appeals. Pet. App. 21a. In an attempt to suggest that its arguments fall within the question presented, Petitioner makes three substantial mis- statements. First, Petitioner seriously misstates the question presented, asserting that this Court agreed to consider: "When a licensing ordinance contains a renewal requirement, must the ordinance include explicit language to prevent injury to a speaker's rights from want of a prompt administrative or ju- dicial decision?" Pet. Br. 14 (emphasis added). Compare Pet. i. Petitioner's attempted addition of "administrative" is critical here, for it raises entirely different questions under the First Amendment and does not implicate the circuit conflict that caused this Court to grant certiorari. Second, Petitioner incorrectly asserts that in the proceed- ings below it challenged the timing of administrative pro- ceedings under the state statutory scheme and specifically the statutory provision for holding an administrative hearing. According to Petitioner, it "raised the open-ended nature of administrative review under Chapter 68." Pet. Br. 12 n.12. In reality, Petitioner's complaint relates only to the Waukesha ordinance; it does not allege that those provisions of Chapter 68 are unconstitutional. See Resp. Lodging, vol. I, tab 11. Indeed, both the trial court and the court of appeals went to pains to note that Petitioner challenged only the Waukesha ordinance, not the separate state statutory scheme. See supra at 12, 14. Petitioner cites two pages in its court of appeals brief as supposedly setting forth its challenge to Chapter 68. Pet. Br. 12 n.12 (citing Pet. C.A. Br. 23-24). Even if Petitioner had raised such a claim in the state court of appeals, upon which that court unquestionably never passed, it would not be pre- sented here because the Wisconsin courts follow the tradi- tional rule that claims not raised in the trial court cannot be raised for the first time on appeal. Terpstra v. Soiltest, Inc., 218 N.W.2d 129, 133 (Wis. 1974). This Court, in turn, will consider only questions properly presented in or passed upon by the court below. NCAA v. Smith, 525 U.S. 459, 470 (1999). In any event, the cited pages of Petitioner's court of ap- peals brief - which Respondent is including in its lodging for the Court's convenience, see Resp. Lodging, vol. I, tab 13 - make no such argument. In a single sentence, Petitioner noted that Wis. Stat. § 68.09 includes "no requirement that the decision on review be made within any certain period of time." But this one sentence does not purport to be a free- standing challenge to deadlines under Chapter 68. Instead, Petitioner's point responded to the trial court's holding that the hearing provision of the Waukesha ordinance is valid be- cause it, in turn, incorporates Section 68.09. Pet. App. 61a- 62a. In disagreeing with the trial court on this issue, the court of appeals did not consider the requirements or the constitu- tionality of the state statute's hearing provision. Id. 24a-28a. Third, and relatedly, Petitioner incorrectly states that the court of appeals passed upon the constitutionality of the tim- ing of administrative decisions under Chapter 68, including specifically the statute's administrative hearing provision. Pet. Br. 12-13. Of course, because the decision below never purports to do any such thing, Petitioner is forced to contend in a footnote that "[t]he Court's upholding of the Chapter 68 procedures was implicit." Id. n.13. But at every turn, and as to every claim, the court of appeals made clear that it waspassing only on the constitutionality of the Waukesha ordi- nance.6 Petitioner fares no better in asserting that its challenges to Chapter 68 are fairly included within the question presented. According to Petitioner, "Because the open-ended nature of the administrative time frame necessarily delays the point in time at which judicial review may be initiated, such a flaw is within the scope of the question presented because it causes the time frame for judicial review to be open-ended and in- definite." Pet. Br. 19. In other words, Petitioner maintains that because Chapter 68 permits a municipality to take up to seventy-one days to review a license renewal application and does not set a fixed schedule for the hearing on appeal, an ap- plicant will be unable to go to court on a date certain and, in turn, the statute by definition cannot guarantee "prompt judi- cial review." In the first place, even if the legal issue raised by Peti- tioner were "fairly included" in the question presented, that 6 Pet. App. 9a ("First Amendment Protections. City News raises a number of facial challenges to the constitutionality of the City's licensing scheme."); id. 12a ("1. Renewal Standards. City News first contends that the ordinance is unconstitutional because it fails to provide explicit standards for license renewal."); id. 16a ("2. In- adequate Time Limits. City News contends that the City's licens- ing scheme is defective because it does not prescribe mandatory time limits for the application process."); id. 19a ("3. Preserving the Status Quo. City News contends that the ordinance is defective because it fails to explicitly require preservation of the status quo pending judicial review of a license denial or revocation."); id. 20a ("4. Prompt Judicial Review. City News next asserts that the ordi- nance does not guarantee 'prompt judicial review,' as established by the Supreme Court in Freedman."); id. 24a (5. Public Hearing Provision. City News further argues that an indefinite time period is created as to the public hearing set forth under MUNICIPAL CODE § 8.195(3)(d).") (emphases in original) (paragraph numbering omitted).would not justify passing on the constitutionality of a statute that was not addressed in the proceedings below. Further- more, the administrative appeals procedure of Chapter 68 does not delay the availability of judicial review for an appli- cant, which can instead proceed under the more expeditious municipal scheme. In any event, Petitioner's argument is a non sequitur. Be- cause the court of appeals had invalidated the hearing provi- sion set forth in the ordinance itself, this Court necessarily presumed in granting certiorari that it would determine whether the judicial review provisions of the Waukesha ordi- nance were, standing alone, invalid for failure to guarantee a "prompt judicial determination." On Petitioner's far broader view of the question presented, it has the right to challenge in this Court any aspect of the timing of the administrative pro- ceedings - such as the deadlines for filing an application, the deadlines for the adult business to appeal, and the timing for providing a transcript of the hearing - all of which affect the point in time at which the adult business may pursue judicial review, but none of which has anything to do with the actual question presented.7 II. WAUKESHA MAKES PROMPT JUDICIAL REVIEW     AVAILABLE TO APPLICANTS FOR ADULT-BUSINESS     LICENSES. Petitioner's argument that WMC § 8.195 is unconstitu- tional for failure to guarantee a "prompt judicial determina- tion" on appeal from an administrative licensing decision is 7 Indeed, Petitioner obliquely argues in this Court that the statute is unconstitutional because it does not guarantee when the applicant will be provided a transcript of the administrative proceedings. Pet. Br. 8. The amended Waukesha ordinance, however, guarantees that the applicant will be provided a copy of the transcript at the same time as the Appeals Board renders its decision. WMC § 8.195(3)(d).unavailing. The decisions on which Petitioner relies all arise in a very different context: First Amendment challenges to laws permitting administrative decisionmakers to censor ex- pressive materials based on judgments about the content of those materials. The Waukesha ordinance, by contrast, in- volves neither an inquiry into the content of the materials sold by Petitioner nor censorship of any kind. Moreover, as the plurality opinion in FW/PBS, Inc. v. City of Dallas makes quite clear, the prophylactic concerns underlying the "prompt judicial determination" requirement are absent here: there is no risk that adult businesses will elect not to pursue licenses and courts are not uniquely suited to making content-neutral licensing determinations (indeed, precisely the opposite is true). Finally, Petitioner's argument necessarily implies a right of all expressive businesses (including newsstands, movie rental stores, and television stations) to continue to op- erate pending judicial review notwithstanding their failure to follow all manner of content-neutral regulatory statutes (such as the obligation to pay taxes or to follow sanitation laws). That cannot be a correct reading of the First Amendment. 1. THE PROMPT JUDICIAL DETERMINATION REQUIRE-    MENT APPLIES TO CONTENT-BASED CENSORSHIP    SCHEMES, NOT CONTENT-NEUTRAL LICENSING    ORDINANCES. Petitioner's argument is flawed from the outset because it rests on precedents holding that a court must issue "a prompt judicial decision of the question of the alleged obscenity of" a work that has been censored. Teitel Film Corp. v. Cusack, 390 U.S. 139, 141 (1968) (per curiam) (emphasis added); see also Fort Wayne Books v. Indiana, 489 U.S. 46, 63 (1989) (precedents hold "that pretrial seizures of expressive materials could only be undertaken pursuant to a procedure designed to focus searchingly on the question of obscenity" (emphasis added) (internal quotation marks and multiple citations omit- ted)); New York v. P.J. Video, 475 U.S. 868, 873 (1986) (ju-dicial determination relates to question of "obscenity" (multi- ple citations omitted)). Thus, Freedman v. Maryland held that a state board of censors had the burden of securing a prompt judicial decision confirming an order prohibiting exhibition of a film. 380 U.S. 51 (1965). Southeastern Promotions v. Conrad applied the same requirement to a municipal review board authorized to determine which stage productions could, based on their content, appear at municipal theaters. 420 U.S. 546 (1975). See also Vance v. Universal Amusement Co., 445 U.S. 308 (1980) (per curiam) (invalidating statute permitting seizure of films based on showing that theater previously screened ob- scene materials when, inter alia, statute failed to guarantee prompt judicial determination on question of obscenity); United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971) (imposing prompt judicial determination requirement upon customs regulation authorizing seizure of "obscene or immoral" imported materials); Blount v. Rizzi, 400 U.S. 410 (1971) (invalidating statute authorizing Postmaster General to seize obscene materials for failure to guarantee prompt judi- cial determination); Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968) (per curiam) (invalidating ordinance that banned exhibition without approval of board of censors but did not provide for prompt judicial determination). In contrast to these decisions addressing content-based censorship schemes, this Court did not impose the "prompt judicial determination" requirement when it reviewed an adult-business licensing ordinance in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990). Justice O'Connor's opinion for the plurality in FW/PBS recognized that "the city does not exercise discretion by passing judgment on the content of any protected speech. Rather, the city reviews the general qualifi- cations of each license applicant, a ministerial action that is not presumptively invalid." Id. at 229. Thus, "the licensing scheme * * * does not present the grave 'dangers of a censor- ship system.'" Id. (quoting Freedman, 380 U.S. at 58). Theplurality accordingly concluded that the First Amendment requires a municipality only to guarantee the "possibility" or "availability" of "prompt judicial review," 493 U.S. at 228 (emphasis added), rather than, as was required in Freedman and its progeny, a "prompt judicial determination," 380 U.S. at 60 (emphasis added).8 The plurality's conclusion followed directly from Southeastern Promotions and Freedman, which reasoned that the "prompt judicial determination requirement" rests on essentially the same ground as the procedural safe- guard, not applicable to licensing schemes, requiring censors to institute judicial proceedings to confirm their decisions. Southeastern Promotions, 420 U.S. at 560; Freedman, 380 U.S. at 58. The Waukesha ordinance makes "prompt judicial review" "available" to adult businesses, as required by the FW/PBS plurality. Under the time limits set by the ordinance, the City will complete its review of a renewal application, both as an initial matter and on administrative appeal, within fifty-one days. The ordinance provides that a renewal application should be submitted at least sixty days before the license ex- pires. Because the adult business's essentially pro forma no- tice of administrative appeal takes almost no time to prepare and file, the applicant is assured that its license will remain in effect throughout the administrative process. Once that proc- ess is completed, if the City determines not to renew the li- cense, the applicant may proceed immediately to court where, as we explain below, it may seek a restraining order requiring that the license remain in effect.9 The ordinance thus guaran- 8 Thus, although the FW/PBS plurality described this procedural safeguard as "essential," it did not conclude that, in the unique context of municipal licensing, "prompt judicial review" means the issuance of a decision on a fixed, accelerated timetable. 9 Section 8.195 thus stands in contrast to other statutory provisions, under which there is no right to judicial review at all. E.g., Wis. Stat. §§ 227.52 (listing state administrative decisions not governedtees the availability of judicial review, and provides that re- view will be available "promptly."10 2. THE TWO CONCERNS UNDERLYING THE "PROMPT    JUDICIAL DETERMINATION" REQUIREMENT ARE    INAPPOSITE HERE. There is no basis to retreat from the view of the FW/PBS plurality and extend the "prompt judicial determination" re- quirement to encompass appeals from municipal licensing rulings. This Court adopted that requirement not because the First Amendment guarantees an adult business the right to engage in expression until a court rules to the contrary, as Pe- titioner mistakenly suggests, but rather as a prophylactic measure. Two specific concerns underlie the Court's deci- sions. First, absent a guarantee of a prompt judicial determi- nation, exhibitors could engage in self-censorship, deterred from presenting their works to censors in the first instance. Because the administrative process must not "have a discour- aging effect on the exhibitor," "the procedure must * * * as- sure a prompt final judicial decision, to minimize the deter- rent effect of an interim and possibly erroneous denial of a license." Freedman, 380 U.S. at 59; see also Southeastern by review procedures of the State Administrative Procedure Act), 893.80(4) (providing that no suit can be brought against certain municipal officers, agents or employees "for acts done in the exer- cise of legislative, quasi-legislative, judicial or quasi-judicial func- tions"). See also Blount v. Rizzi, 400 U.S. 410 (1971) (invalidating statute that failed to provide any avenue for judicial review). 10 The judicial review procedures of WMC § 8.195 are at least as solicitous of the interests of adult businesses as those provided by other municipalities. Accepting Petitioner's argument accordingly would cut a very wide swath through the administrative practice of virtually every city and town in the country. See, e.g., Alpharetta, GA Mun. Ord. 12-126 to -129; Anchorage, AK Code § 10.40.050(I), (L); Brownwood, TX Mun. Ord. § 158.508; Duluth, GA Code ch. 7, art. 14, §§ 7-605, 7-616 to -625; Duluth, MN Code ch. 5, art. IV, §§ 5-19, -22; Springdale, OH Mun. Ord. § 120.14.Promotions, 420 U.S. at 561 ("And if judicial review is made unduly onerous, by reason of delay or otherwise, the board's determination in practice may be final."). Second, censors would be prone to determining erroneously that expression was not constitutionally protected, an inquiry that lies within the unique provenance of the courts. "The teaching of our cases is that, because only a judicial determination in an ad- versary proceeding ensures the necessary sensitivity to free- dom of expression, only a procedure requiring a judicial de- termination suffices to impose a valid final restraint." Freedman, 380 U.S. at 58; see also Southeastern Promotions, 420 U.S. at 560-61 ("An administrative board assigned to screening state productions - and keeping off stage anything not deemed culturally uplifting or healthful - may well be less responsive than a court, an independent branch of govern- ment, to constitutionally protected interests in free expres- sion."). Petitioner cannot establish that either of the concerns that underlie the "prompt judicial determination" requirement is present in this context, in which a municipality does not pur- port to make any determination regarding whether expression is constitutionally protected and in fact provides substantial procedural protections throughout the administrative process (including, but hardly limited to, the availability of prompt judicial review). a. Self-censorship. An ordinance such as WMC § 8.195 does not present the risk that an applicant will be deterred from pursuing a license. As the plurality opinion in FW/PBS squarely concludes, "The license applicants * * * have much more at stake than did the motion picture distributor considered in Freedman, where only one film was censored. Because the license is the key to the applicant's obtaining and maintaining a business, there is every incentive for the applicant to pursue a license denial through court." 493 U.S. at 229-30. Compare Freedman, 380 U.S. at 59 ("The exhibitor's stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation."). Indeed, Petitioner seems to recognize that an adult business will have extraordinary incentives to pursue both administrative and judicial review: "under a licensing scheme not just one or a few expressive works are at stake, but rather an entire ongoing" enterprise. Pet. Br. 35. Numerous aspects of WMC § 8.195 confirm the conclu- sion of the FW/PBS plurality that adult businesses will not be deterred from applying to renew their licenses by the absence of a guaranteed "prompt judicial determination." Not only do adult businesses have a great economic stake in applying for renewal because an entire commercial enterprise rather than a single film is at stake, but the great bulk of the legal and fac- tual development in the licensing process occurs, and the at- tendant costs are incurred, at the administrative - rather than judicial - level. Evidence is collected and witnesses are called only before the Common Council and the Appeals Board; the reviewing court is limited to determining whether the existing record provides substantial evidence for the City's decision not to renew a license. Pet. App. 8a. In addi- tion, the only direct out-of-pocket cost - preparation of the record - must be borne by the City. Wis. Stat. § 68.13(2). The adult business knows that the burden of proof at the ad- ministrative stage will be on the City and that the City may not during the administrative proceedings challenge a ruling in the business's favor. Pet. App. 80a-81a. The ordinance also guarantees that the City will complete its review of the application both as an initial matter and on appeal in less time - fifty-one days - than the minimum time required to submit the application - sixty days - at which point immediate access to the courts is available. See supra at 8. Just as important, an applicant can seek immediate relief from the court in the form of an order restraining termination of its license. Specifically, it may request "temporary relief pending disposition of the action or proceeding." Wis. Stat.§ 781.02; see also id. § 813.02(1)(a) ("a temporary injunction may be granted"). Of note, the most rigorous element of the injunctive relief test - irreparable injury - is established by either a prohibition on protected expression (such as a license denial) or a showing that the failure to grant an injunction would render the permanent relief sought irrelevant (as when a business could show that it will be forced permanently out of business). Werner v. A.L. Grootemaat & Sons, 259 N.W.2d 310, 313-14 (Wis. 1977); Elrod v. Burns, 427 U.S. 347, 372 (1976).11 Furthermore, if the trial court unduly de- lays deciding the case, the applicant may secure a writ of mandamus compelling the issuance of a ruling. State ex rel. Fireman's Fund Ins. Co. v. Hoppmann, 240 N.W. 884 (Wis. 1932). For all of these reasons, it is quite unlikely that a putative applicant would conclude that the failure to provide a definite schedule under which a court will rule on an appeal from a licensing determination so infects the licensing process with indeterminacy that it simply is not worth the bother of apply- ing at all.12 11 Southeastern Promotions v. Conrad, 420 U.S. 546 (1975), is not to the contrary. In that case, the court held that the availability of interim judicial relief did not provide sufficient procedural protec- tions to satisfy the First Amendment when the underlying adminis- trative proceedings involved an inquiry into the content of the plaintiff's production. Id. at 562. Injunctive proceedings in that context impermissibly imposed on the applicant the burdens of pro- ceeding in court and persuading the judge to issue an injunction. Id. But as the plurality held in FW/PBS, an applicant for a license to operate an adult business may be required to carry both those burdens. 492 U.S. at 230. 12 There may be rare cases in which the costs of pursuing judicial review will prove too great for an adult business to bear. See Pet. Br. 45. But that does not justify a per se rule prohibiting the termi- nation of a license pending judicial determination. Instead, the relevant inquiry is whether the review scheme is such that the busi- b. Judicial expertise. Nor is a "prompt judicial determination" necessary as a prophylactic measure on the theory that courts, rather than municipalities, are uniquely suited to making the kind of li- censing determination at issue in this case. At the outset, it is important to note that the Waukesha ordinance plainly pro- vides the right to appeal a licensing decision in court upon the conclusion of administrative proceedings. Absent delays by the applicant, an appeal therefore will be available before the expiration of the applicant's license. The question accord- ingly is not whether judicial review should be available, but instead whether the courts are so singularly suited to making licensing determinations that the First Amendment compels deviating from the normal processes of judicial review. The courts simply do not have such special expertise in this context. To the contrary, the criteria for a license renewal are entirely content neutral and within the traditional realm of municipal expertise. Unlike the content-based censorship schemes in Freedman and its progeny, WMC § 8.195 calls on the City to make determinations that have nothing to do with whether City News & Novelty is selling constitutionally pro- tected expressive materials. Instead, the ordinance requires a ness will be deterred from applying for renewal in the first instance. Petitioner's much broader reading of the First Amendment would mean that adult businesses could not be closed even pending appeal in the courts - because they may not be able to afford those costs either - and (as we discuss below) would apply equally to prevent closure pending judicial review based on the adult business's fail- ure to comply with innumerable generally applicable laws, such as the failure to pay taxes or to maintain sanitary conditions. Cf. Young v. American Mini Theatres, 427 U.S. 50, 78 (1976) (Powell, J., concurring) ("The inquiry for First Amendment purposes is not concerned with economic impact; rather, it looks only to the effect of this ordinance upon freedom of expression. * * * At most the impact of the ordinance on these interests is incidental and mini- mal.").determination whether, for example, minors were on the premises of City News & Novelty and whether its customers were engaging in sex acts on the premises. The City thus en- acted WMC § 8.195 with "neither the purpose or effect of imposing a limitation or the restriction on the content of any communicative materials," but instead to "combat and curb the adverse secondary effects brought on by adult oriented establishments." Pet. App. 97a. As this Court held in City of Renton v. Playtime Theatres, those are matters of municipal concern and expertise. 475 U.S. 41, 50 (1986); see also State ex rel. Ruffalo v. Common Council of the City of Kenosha, 157 N.W.2d 568 (Wis. 1968) (sustaining tavern license revo- cation on basis of secondary effects). Accord Graff v. City of Chicago, 9 F.3d 1309, 1333 (CA7 1993) (en banc) (Flaum, J., concurring) ("Clearly included among such nonthreatening schemes are those that only ask and allow administrators to make the kind of determinations for which they are especially suited; e.g. questions about city aesthetics, traffic flow or City Code violations. Certainly, the Ordinance is in that category of innocuous schemes which a specially mandated judicial review mechanism would only hamper through inappropriate and inefficient second-guessing of legitimate administrative decisions."). The fact that violations of Section 8.195 may result in clo- sure of an adult business does not render the ordinance a content-based speech restriction requiring an immediate de- termination on appeal. In Arcara v. Cloud Books, in which this Court approved the use of a nuisance action to close an adult bookstore, this Court rejected the adult business's ar- gument that "the effect of the statutory closure remedy impermissibly burdens its First Amendment protected book- selling activities." 478 U.S. 697, 706 (1986). The Court ex- plained that "this argument proves too much, since every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities," as when money that otherwise would be spent on advertising must go to pay a civil damages award and when a thief who would otherwise publish is sent to prison. Id. Thus, "the imposition of the closure order has nothing to do with any expressive conduct at all." Id. at 706 n.2; see also id. at 707 ("The legislation providing the closure sanction was directed at unlawful con- duct having nothing to do with books or other expressive ac- tivity."). Justice O'Connor similarly explained in her concur- ring opinion that "[a]ny other conclusion would lead to the absurd result that any government action that had some con- ceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would require analysis under the First Amendment." Id. at 708. Relatedly, Waukesha's interest in enforcing the ordinance "is unrelated to the suppression of free expression." Barnes v. Glen Theatre, 501 U.S. 560, 570 (1991) (Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.); id. at 572 ("The statutory prohibition is not a means to some greater end, but an end in itself."); id. at 575 n.3 (Scalia, J., concurring) ("A law is 'general' for the present purposes if it regulates con- duct without regard to whether that conduct is expressive."). Instead, the ordinance seeks only to eliminate "the secondary effects of such theaters on the surrounding community," which is a "vital governmental interest[]." City of Renton v. Playtime Theatres, 475 U.S. 41, 47, 50 (1986); see also City of Erie v. Pap's A. M., 120 S. Ct. 1382, 1395 (2000) (O'Connor, J., joined by Rehnquist, C.J., and Kennedy and Breyer, JJ.) ("efforts to protect public health and safety are clearly within the city's police powers"); Barnes v. Glen Theatre, 501 U.S. 560, 568 (1991) (Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.) ("[T]he statute's purpose of protecting societal order and morality is clear from its text and history."); id. at 569 ("The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation." (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973))); Young v. American Mini Theatres, 427 U.S. 50, 80 (1976) (Powell, J., concurring) ("Without stable neigh- borhoods, both residential and commercial, large sections of a modern city quickly can deteriorate into an urban jungle with tragic consequences to social, environmental, and economic values.").13 Even more directly than in City of Erie v. Pap's A. M., in which the Court sustained an ordinance banning public nudity that effectively prohibited totally nude dancing and admit- tedly "may not greatly reduce these secondary effects," the Waukesha ordinance is thus valid because it "is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments * * * and not at suppressing [any] message." 120 S. Ct. 1382, 1392, 1397 (2000) (opinion of O'Connor, J., joined by 13 Well-reasoned opinions of the courts of appeals support the same conclusion. E.g., TK's Video v. Denton County, Tex., 24 F.3d 705, 707 (CA5 1994) (per Higginbotham, J.) ("The order, by its own terms, combats pernicious side effects of adult businesses such as prostitution, disease, street crime, and urban blight. It does not cen- sor, prevent entrepreneurs from marketing, or impede customers from obtaining communicative material."); Graff v. City of Chi- cago, 9 F.3d 1309, 1331 (CA7 1993) (en banc) (Flaum, J., concur- ring) ("Moreover, uncritically extending Freedman's reach to strike down the Ordinance for lack of judicial review, by attributing broad significance to language in later cases that dealt with schemes sub- stantially dissimilar from the one at issue here, would embark us upon a senseless departure from the core logic undergirding the holdings in Freedman and its progeny; for neither the purpose nor effect of the Ordinance, unlike the laws challenged in that line of cases, is to involve the licensor in any decisionmaking of constitu- tional proportion."); id. at 1335 (Ripple, J., concurring) ("The con- cerns the Court voiced in * * * FW/PBS are not present here. The Chicago ordinance sets forth criteria according to which a permit must be evaluated. Furthermore, there is a time limit within which city officials must respond to the application. In no way does the ordinance place unfettered discretion in the hands of city officials. As a result, there is no risk of either hidden or self censorship.").Rehnquist, C.J., and Kennedy and Breyer, JJ.). Here, as there, "[t]he State's interest in preventing harmful secondary effects is not related to the suppression of expression. In try- ing to control the secondary effects of nude dancing, the ordi- nance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neigh- borhood." Id. at 1393. The First Amendment accordingly gives municipalities a "freer hand" in this area. Id. at 1396 (citing Texas v. Johnson, 491 U.S. 397, 406 (1989)).14Several other aspects of the administrative process guar- anteed by WMC § 8.195 minimize the risk of an erroneous determination prejudicing an adult business. As the lower courts squarely held, the criteria for renewal set forth in the ordinance are clear and objective. Pet. App. 15a, 59a. The adult business has the right not only to submit evidence and legal argument, but also to call, subpoena, and cross-examine witnesses. Wis. Stat. § 68.11(2); WMC § 2.11(3). (Peti- tioner's statement that "the ordinance does not provide any tools of discovery by which the licensee can challenge the credibility of the witnesses against him or her," Pet. Br. 38, is thus simply wrong.) The adult business, but not the City, may appeal licensing determinations at any stage of the adminis- trative process, and is assured that the administrative review will conclude prior to the expiration of its license. Indeed, the adult business has the right to select (as City News & Novelty did in this case) to pursue not just one but two administrative 14 The fact that WMC § 8.195 is directed only at the secondary ef- fects of adult businesses rather than the expressive nature of their wares is of course relevant for another important reason as well. This Court's precedents firmly establish that such a content-neutral regulation - unlike, for example, the censorship schemes in Freed- man and Southeastern Promotions - presents far fewer risks that the government will seek to suppress unpopular speech. Turner Broadcasting Sys. v. FCC, 520 U.S. 180, 213 (1997).appeals before impartial decisionmakers prior to proceeding to court. As a matter of both expertise and separation of powers, the Wisconsin courts thus quite properly apply a deferential standard of review in reviewing a licensing determination. In a certiorari action, the court does not take new evidence or reach de novo factual conclusions. Instead, it reviews the administrative record to determine whether the municipality's factual determinations are supported by substantial evidence, Pet. App. 8a, the standard traditionally applied when the judi- ciary recognizes that another body has the expertise to reach factual conclusions and that the role of the courts is to check capricious administrative action. The court also confirms that the municipality's determinations were not "arbitrary, oppres- sive or unreasonable," id., again inquiries that bespeak defer- ence rather than judicial expertise. Cf. Chevron U.S.A. v. NRDC, 437 U.S. 837 (1984).15 To be sure, the judiciary has expertise superior to a mu- nicipality in one respect: resolving constitutional challenges to the ordinance itself, as opposed to the fact-bound inquiries into the adult business's compliance with the ordinance. But the exhaustion requirements of Section 8.195 do not apply to constitutional challenges and, indeed, such challenges cannot even be brought in the administrative process. Pet. App. 56a (citing Kmiec v. Town of Spider Lake, 211 N.W.2d 471, 473- 74 (Wis. 1973)). As Petitioner's own amici recognize, "All 15 Contrary to Petitioner's suggestion, Br. 35, this case is not akin to Southeastern Promotions v. Conrad, in which municipal officials were called upon to engage in the "appraisal of facts, the exercise of judgment, and the formation of an opinion." 420 U.S. 546, 554 (1975) (quoting Cantwell v. Connecticut, 310 U.S. 296, 305 (1940)). As the Court explained in an accompanying footnote, the appraisals, judgments, and opinions in Southeastern Promotions related to "the content * * * of the production." Id. 554 n.7 (em- phasis added). litigants possess the right to challenge a statute - even if it does not impose a prior restraint - on constitutional grounds," by filing a plenary action in court. Liberty Project Br. 13 n.5. Petitioner is therefore wrong in arguing that in the case of such a constitutional challenge the ordinance "forces the de- nied applicant to sink valuable time and energy into a point- less effort, and works a postponement of the only review that can provide relief, judicial review." Pet. Br. 39-40. Specifically, an adult business has at least two avenues to bring such a constitutional challenge directly in court without any delay whatsoever. City News & Novelty has in fact used both avenues to challenge WMC § 8.195, although it does not acknowledge either in its brief. First, an adult business can bring a declaratory judgment action in state court. See Wis. Stat. § 806.04. Thus, in 1990, City News & Novelty brought such an action challenging the constitutionality of Section 8.195's requirement that booths for viewing adult films have open entrances. See Resp. Lodging, vol. I, tab 15. Waukesha prevailed in both the trial and appellate courts. See City News & Novelty, Inc. v. City of Waukesha, 487 N.W.2d 316, 317 (Wis. Ct. App. 1992). Second, an adult business can bring an action in federal court under 42 U.S.C. § 1983. See generally Patsy v. Board of Regents, 457 U.S. 496, 500-01 (1982) (no administrative exhaustion requirement applies to Section 1983 actions); see also Wis. Stat. § 68.01 (remedies under statutory scheme "shall not be exclusive"). Indeed, while the administrative proceedings were pending in this very case, City News & Novelty brought such a suit in the Eastern Dis- trict of Wisconsin raising a variety of constitutional chal- lenges to WMC § 8.195. See Resp. Lodging, tab 16. Imme- diately after the case was assigned to a district judge, Peti- tioner elected to voluntarily dismiss its suit and to bring allthose claims on appeal from the City's subsequent licensing determination.16 3. PETITIONER'S REMAINING ARGUMENTS ARE    UNAVAILING. The various reasons asserted by Petitioner for adopting a mandatory stay of licensing determinations in fact support only the availability of judicial review, which WMC § 8.195 indisputably provides. Petitioner's arguments do not justify disabling a municipality's orderly implementation of a duly rendered determination that an adult business is, for reasons entirely unrelated to the nature of its expression, not entitled to a license to operate. For example, Petitioner maintains that the grounds invoked by the municipality may not be suffi- cient, as a constitutional matter, to justify the sanction of clo- sure. But as we explained supra at 37-38, a licensee may at any time go directly to court to bring a facial challenge to the grounds that will justify nonrenewal. Even more important for present purposes, Petitioner's arguments simply establish that in this area, like all others, a municipality may make a mistake that should be subject to judicial review. Petitioner's remaining arguments rest on a series of in- supportable, gratuitous insults regarding the fidelity of every level of municipal government to the Constitution and to the rule of law. Without citation to a wisp of support, much less actual record evidence, Petitioner maintains that the Constitu- tion requires constant judicial superintendence over local de- cisionmaking because municipal officials are "institutionally 16 Exhaustion of administrative remedies is also not required if a business seeks to contest the City's determination that it must have a license to operate. And the licensing ordinance would be entirely inapplicable if an adult business located in Waukesha sought to sell products through the Internet or by telephone. If an adult business has no storefront visited by customers, the risks of secondary ef- fects are reduced. Accordingly, Respondent does not read WMC § 8.195 to apply in that situation.more concerned with enforcement than with protecting con- stitutional rights" and "disregard[] all constitutional protec- tions." Pet. Br. 32, 34. The point need not be belabored. It is enough here to note the clear and uncontradicted record in this case, in which Waukesha officials accommodated every conceivable request by City News & Novelty and, indeed, agreed not to withdraw Petitioner's license until its constitutional challenge was ad- dressed in the state circuit court. Here, as in Arcara v. Cloud Books, "there is no suggestion on the record before us that the closure of respondents' bookstore was sought under [ordi- nance] as a pretext for the suppression of First Amendment protected material." 478 U.S. 697, 707 (1986). Any such al- legation would, in any event, be brought instead as "a claim of selective prosecution." Id. (citing Wayte v. United States, 470 U.S. 598 (1985)); see also id. (O'Connor, J., concurring) (concluding that it would be improper to rest decision on un- supported allegations of bias because "there is no suggestion in the record or opinion below of such pretextual use of" nui- sance statute). 4. ACCEPTING PETITIONER'S ARGUMENT WOULD    CAUSE SUBSTANTIAL, UNWARRANTED HARM TO    IMPORTANT MUNICIPAL AND JUDICIAL INTERESTS. There are additional important reasons for not extending the "prompt judicial determination" requirement into the context of content-neutral municipal licensing schemes. Cases such as Freedman and Southeastern Promotions fo- cused on the interests of speakers because a "prompt judicial determination" requirement did not involve any risk that the public interest or the operation of the courts would be under- mined. Not so here. Petitioner's theory, if accepted, would seriously interfere with municipalities' efforts to combat the secondary effects of adult businesses. See City of Erie, 529 U.S. at 1396 ("the government should have sufficient leeway to justify such a law based on secondary effects"); Young v. American Mini Theatres, 427 U.S. 50, 71 (1976) (city's inter-est in combating secondary effects is "one that must be ac- corded high respect"). Moreover, because Petitioner's argu- ment would apply to every kind of regulation of every kind of expressive business, it would flood local courts with claims that as a federal constitutional matter must be given "first pri- ority." Moreover, on Petitioner's view, the Constitution grants an adult business a per se right to operate until a court says oth- erwise. Petitioner thus seeks a radical expansion of the Freedman line of cases. The most that the Court has ever re- quired is a "prompt judicial determination" on review of an act of censorship. It has never required, as Petitioner urges, that the government "stay" implementation of its decision pending a ruling by the courts. Here, by contrast, Petitioner contends that the City's determination that, for reasons totally unrelated to the content of any speech, City News & Novelty is not entitled to an adult-business license must be stayed until a Wisconsin circuit court confirms that substantial evidence supports the City's determination that City News & Novelty had engaged in the nine different ordinance violations that were established in the administrative proceedings. (That notwithstanding that several of the violations were proven by sworn testimony of police officers, while others were duly confirmed by convictions of officers of City News & Novelty for ordinance violations.) In the meantime, the City's sub- stantial interest in enforcing its laws, and specifically in avoiding the secondary effects of adult businesses, would be substantially undermined. When targeted efforts to combat secondary effects fail - as in this case, in which Petitioner violated WMC § 8.195 and the City found minors on Petitioner's premises and customers committing sex acts on the premises - the municipality has an obligation to withdraw the adult business's license to operate. On Petitioner's alternate view, the business effectively has a free pass to violate the law, knowing that it cannot be closed until not only the administrative but also the judicial processis completed. It therefore is not true, as Petitioner maintains, that "[w]ith a guaranteed stay throughout the first level of ju- dicial review, * * * the City's inability to control the pace of litigation in the circuit court, which the court below found determinative, ceases to be a concern." Pet. Br. 47 (emphasis omitted).17 The total illogic of Petitioner's reading of Freedman and its progeny is also plain when it is applied to the context of an initial application for a license to operate. Such putative li- censees have every much as great a First Amendment interest as existing adult businesses. If Petitioner is correct that an adult business will be deterred by the prospect of having to proceed through the administrative and judicial processes without a license to operate, then presumably a municipality must grant a license to everyone who requests one until a court says otherwise. But that simply cannot be the case. The awesome expanse of Petitioner's proposed holding makes these concerns graver still. If adopted, the same rule would necessarily apply to all other content-neutral regula- tions. Zoning is the most obvious, as when a City seeks to restrict adult businesses to a particular area or class of prop- erty. But it is hard to see how the government could close an adult business for violating any of innumerable, generally ap- 17 It is for this reason that Petitioner is also wrong to argue that a municipality may, in certain limited and extremely urgent circum- stances, bring a state-law nuisance action in an attempt to close an adult business. Pet. Br. 41-42. The First Amendment does not im- pose such an obligation on a municipality. Instead, if an adult business can make a sufficient showing that the administrative li- censing determination was erroneous, it may (as was explained su- pra) secure an order restraining the City from terminating the li- cense. Neither logic nor precedent requires that a municipality in- definitely stay its hand in this manner. Indeed, the plurality opinion in FW/PBS squarely held that a municipality need not bear the bur- den of going to court simply to deny a license application. 493 U.S. at 230.plicable laws. E.g., Wis. Stat. § 134.71 (requiring dealers in second-hand goods, who frequently resell books and movies, to be licensed as measure designed to combat sale of stolen property). Thus, nothing in the First Amendment calls for more prompt or searching judicial review of a municipal de- termination that minors were found on the premises of an adult business, see WMC § 8.195(10)(c), than determinations under the tax code or the sanitation laws. Cf. California v. Grace Brethren Church, 457 U.S. 393, 417 n.36 (1982). Of equal concern, the same broad prohibition on closure would also apply, a fortiori, to every other kind of expressive busi- ness, including publishers, newsstands, movie theaters, and video rental stores, effectively working a wholesale transfer of this fundamental area of municipal control to the state courts. E.g., Graff v. City of Chicago, 9 F.3d 1309 (CA7 1993) (en banc) (applying Freedman and FW/PBS to licens- ing scheme for newsstands); cf. Young v. American Mini Theatres, 427 U.S. 50, 62 (1976) (although "adult films may only be exhibited commercially in licensed theaters," "that is also true of all motion pictures"). Petitioner's argument also would apply not just to purely adult businesses, but also to those that, like City News, sell many other products such as drug paraphernalia. Finally, Petitioner's proposed rule would create a perverse and counterproductive set of incentives in all these areas. Li- cense applicants would invariably seek to delay the adminis- trative process, safe in the knowledge that they will have a constitutional right to operate until the case is eventually de- cided in court. In this case, for example, once Waukesha an- nounced that it would not withdraw City News & Novelty's license pending judicial review (equivalent to the mandatory stay Petitioner urges this Court to adopt), Petitioner engaged in a variety of delay tactics, both on administrative appeal and in court. See supra at 11-12. At the very least, any applicant that ever considered not filing a judicial appeal would cer- tainly do so if Petitioner's approach were adopted, seriously overburdening the courts. Furthermore, Petitioner's proposed rule would give municipalities a substantial incentive to pro- vide fewer procedural protections to license applicants in or- der to move the matter immediately into court, shortening administrative hearings and opportunities for briefing. That is a particular problem when, as in Wisconsin, a reviewing court must consider the matter based exclusively on the record de- veloped in the administrative proceedings. Pet. App. 8a. CONCLUSION For the foregoing reasons, the judgment of the Court of Appeals of Wisconsin should be affirmed. Respectfully submitted, CURT R. MEITZ                 THOMAS C. GOLDSTEIN VINCENT D. MOSCHELLA            (Counsel of Record) MILES W.B. EASTMAN            AMY HOWE OFFICE OF THE CITY ATTORNEY   THOMAS C. GOLDSTEIN, P.C. City of Waukesha              4607 Asbury Pl., N.W. 201 Delafield St.             Washington, DC 20016 Waukesha, WI 53188            (202) 237-7543 (262) 524-3520 Counsel for Respondent Dated: October 26, 2000

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