City of Littleton v. Z. J. Gifts D-4, L. L. C.

• Decision Date: 07 June 2004
• Docket Number: No. 02-1609.,02-1609.
• Citation: 541 U.S. 774
• Parties: CITY OF LITTLETON, COLORADO v. Z. J. GIFTS D-4, L. L. C., DBA CHRISTAL'S
• Court: U.S. Supreme Court

541 U.S. 774

CITY OF LITTLETON, COLORADO v. Z. J. GIFTS D-4, L. L. C., DBA CHRISTAL'S

No. 02-1609.

Supreme Court of United States.

Argued March 24, 2004.

Decided June 7, 2004.

Under petitioner city's "adult business license" ordinance, the city's decision to deny a license may be appealed to the state district court pursuant to Colorado Rules of Civil Procedure. Respondent Z. J. Gifts D-4, L. L. C. (hereinafter ZJ), opened an adult bookstore in a place not zoned for adult businesses. Instead of applying for a license, ZJ filed suit attacking the ordinance as facially unconstitutional. The Federal District Court rejected ZJ's claims, but the Tenth Circuit held, as relevant here, that state law does not assure the constitutionally required "prompt final judicial decision."

Held: The ordinance meets the First Amendment's requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. Pp. 778-784.

(a) The Court rejects the city's claim that its licensing scheme need only provide prompt access to judicial review, but not a "prompt judicial determination," of an applicant's legal claim. The city concedes that Freedman v. Maryland, 380 U. S. 51, 59, in listing constitutionally necessary "safeguards" applicable to a motion picture censorship statute, spoke of the need to assure a "prompt final judicial decision," but adds that JUSTICE O'CONNOR'S controlling plurality opinion in FW/PBS, Inc. v. Dallas, 493 U. S. 215, which addressed an adult business licensing scheme, did not use the word "decision," instead speaking only of the "possibility of prompt judicial review," id., at 228 (emphasis added). JUSTICE O'CONNOR'S FW/PBS opinion, however, points out that Freedman's "judicial review" safeguard is meant to prevent "undue delay," 493 U. S., at 228, which includes judicial, as well as administrative, delay. A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being "issued within a reasonable period of time." Ibid. Nothing in the opinion suggests the contrary. Pp. 778-781.

(b) However, the Court accepts the city's claim that Colorado law satisfies any "prompt judicial determination" requirement, agreeing that the Court should modify FW/PBS, withdrawing its implication that Freedman's special judicial review rules — e. g., strict time limits — apply in this case. Colorado's ordinary "judicial review" rules suffice to assure a prompt judicial decision, as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly. And whether the courts do so is a matter normally fit for case-by-case determination rather than a facial challenge. Four considerations support this conclusion. First, ordinary court procedural rules and practices give reviewing courts judicial tools sufficient to avoid delay-related First Amendment harm. Indeed, courts may arrange their schedules to "accelerate" proceedings, and higher courts may grant expedited review. Second, there is no reason to doubt state judges' willingness to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm. And federal remedies would provide an additional safety valve in the event of any such problem. Third, the typical First Amendment harm at issue here differs from that at issue in Freedman, diminishing the need in the typical case for procedural rules imposing special decisionmaking time limits. Unlike in Freedman, this ordinance does not seek to censor material. And its licensing scheme applies reasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or display. These criteria are simple enough to apply and their application simple enough to review that their use is unlikely in practice to suppress totally any specific item of adult material in the community. And the criteria's simple objective nature means that in the ordinary case, judicial review, too, should prove simple, hence expeditious. Finally, nothing in FW/PBS or Freedman requires a city or State to place judicial review safeguards all in the city ordinance that sets forth a licensing scheme. Pp. 781-784.

311 F. 3d 1220, reversed.

BREYER, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, THOMAS, and GINSBURG, JJ., joined, in which STEVENS, J., joined as to Parts I and II-B, and in which SOUTER and KENNEDY, JJ., joined except as to Part II-B. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 784. SOUTER, J., filed an opinion concurring in part and concurring in the judgment, in which KENNEDY, J., joined, post, p. 786. SCALIA, J., filed an opinion concurring in the judgment, post, p. 787.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.

J. Andrew Nathan argued the cause for petitioner. With him on the briefs were Heidi J. Hugdahl, Scott D. Bergthold, Larry W. Berkowitz, and Brad D. Bailey.

Douglas R. Cole, State Solicitor of Ohio, argued the cause and filed a brief for the State of Ohio et al. as amici curiae in support of petitioner under this Court's Rule 12.6. With him on the brief were Jim Petro, Attorney General of Ohio, Rebecca L. Thomas, Assistant Solicitor, and Dan Schweitzer, and the Attorneys General for their respective States as follows: William H. Pryor, Jr., of Alabama, Ken Salazar of Colorado, M. Jane Brady of Delaware, Mark J. Bennett of Hawaii, Steve Carter of Indiana, Thomas J. Miller of Iowa, Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay) Nixon of Missouri, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and William H. Sorrell of Vermont.

Michael W. Gross argued the cause for respondent. With him on the brief were Arthur M. Schwartz and Cindy D. Schwartz.^*

JUSTICE BREYER delivered the opinion of the Court.

In this case we examine a city's "adult business" licensing ordinance to determine whether it meets the First Amendment's requirement that such a licensing scheme assure prompt judicial review of an administrative decision denying a license. See FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990); cf. Freedman v. Maryland, 380 U. S. 51 (1965). We conclude that the ordinance before us, considered on its face, is consistent with the First Amendment's demands.

I

Littleton, Colorado, has enacted an "adult business" ordinance that requires an "adult bookstore, adult novelty store or adult video store" to have an "adult business license." Littleton City Code §§ 3-14-2, 3-14-4 (2003), App. to Brief for Petitioner 13a-20a, 23a. The ordinance defines "adult business"; it requires an applicant to provide certain basic information about the business; it insists upon compliance with local "adult business" (and other) zoning rules; it lists eight specific circumstances the presence of which requires the city to deny a license; and it sets forth time limits (typically amounting to about 40 days) within which city officials must reach a final licensing decision. §§ 3-14-2, 3-14-3, 3-14-5, 3-14-7, 3-14-8, id., at 13a-30a. The ordinance adds that the final decision may be "appealed to the [state] district court pursuant to Colorado rules of civil procedure 106(a)(4)." § 3-14-8(B)(3), id., at 30a.

In 1999, the respondent, a company called Z. J. Gifts D-4, L. L. C. (hereinafter ZJ), opened a store that sells "adult books" in a place not zoned for adult businesses. Compare Tr. of Oral Arg. 13 (store "within 500 feet of a church and day care center") with § 3-14-3(B), App. to Brief for Petitioner 21a (forbidding adult businesses at such locations). Instead of applying for an adult business license, ZJ brought this lawsuit attacking Littleton's ordinance as unconstitutional on its face. The Federal District Court rejected ZJ's claims; but on appeal the Court of Appeals for the Tenth Circuit accepted two of them, 311 F. 3d 1220, 1224 (2002). The court held that Colorado law "does not assure that [the city's] license decisions will be given expedited [judicial] review"; hence it does not assure the "prompt final judicial decision" that the Constitution demands. Id., at 1238. It also held unconstitutional another ordinance provision (not now before us) on the ground that it threatened lengthy administrative delay—a problem that the city believes it has cured by amending the ordinance. Compare id., at 1233-1234, with § 3-14-7, App. to Brief for Petitioner 27a-28a, and Brief for Petitioner 3. Throughout these proceedings, ZJ's store has continued to operate.

The city has asked this Court to review the Tenth Circuit's "judicial review" determination, and we granted certiorari in light of lower court uncertainty on this issue. Compare, e. g., 311 F. 3d, at 1238 (First Amendment requires prompt judicial determination of license denial); Nightclubs, Inc. v. Paducah, 202 F. 3d 884, 892-893 (CA6 2000) (same); Baby Tam & Co. v. Las Vegas, 154 F. 3d 1097, 1101-1102 (CA9 1998) (same); 11126 Baltimore Blvd., Inc. v. Prince George's County, 58 F. 3d 988, 998-1001 (CA4 1995) (en banc) (same), with Boss Capital, Inc. v. Casselberry, 187 F. 3d 1251, 1256-1257 (CA11 1999) (Constitution requires only prompt access to courts); TK's Video, Inc. v. Denton County, 24 F. 3d 705, 709 (CA5 1994) (same); see also Thomas v. Chicago Park Dist., 534 U. S. 316, 325-326 (2002) (noting a Circuit split); City News & Novelty, Inc. v. Waukesha, 531 U. S. 278, 281 (2001) (same).

II

The city of Littleton's claims rest essentially upon two arguments. First, this Court, in applying the First Amendment's procedural requirements to an "adult business" licensing scheme in FW/PBS, found that the First Amendment required such a scheme to provide an applicant with "prompt access" to judicial review of an administrative denial of the license, but that the First...