652 F.2d 1115 (1st Cir. 1981), 81-1081, Fantasy Book Shop, Inc. v. City of Boston

Docket Nº:81-1081.
Citation:652 F.2d 1115
Party Name:FANTASY BOOK SHOP, INC., Lotten Books, Inc. and Journal Books, Inc., Plaintiffs, Appellants, v. CITY OF BOSTON, Kevin H. White, Robert J. Ryan, Boston Redevelopment Authority, Joanne A. Prevost, Joseph M. Jordan, Chinese Economic Development Council, Inc., Michael Obryon and William J. Leong, Defendants, Appellees.
Case Date:June 16, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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652 F.2d 1115 (1st Cir. 1981)

FANTASY BOOK SHOP, INC., Lotten Books, Inc. and Journal

Books, Inc., Plaintiffs, Appellants,

v.

CITY OF BOSTON, Kevin H. White, Robert J. Ryan, Boston

Redevelopment Authority, Joanne A. Prevost, Joseph M.

Jordan, Chinese Economic Development Council, Inc., Michael

Obryon and William J. Leong, Defendants, Appellees.

No. 81-1081.

United States Court of Appeals, First Circuit

June 16, 1981

Argued April 7, 1981.

As Amended July 30, 1981.

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Regina L. Quinlan, Boston, Mass., with whom Leonard A. Lucas, Boston, Mass., was on brief, for plaintiffs, appellants.

Laurie Burt, Boston, Mass., with whom John D. Patterson, Jr., and Foley, Hoag & Eliot, Boston, Mass., were on brief, for defendants, appellees Chinese Economic Development Corp., Inc., Michael Obryon and William J. Leong.

Arlene S. LaPenta, Boston, Mass., with whom Nicholas Foundas, Boston, Mass., was on brief, for defendants, appellees City of Boston, Kevin H. White, Joanne A. Prevost, and Joseph M. Jordan.

Margaret M. Brown and Harry G. Stoddard, Boston, Mass., on brief for defendants, appellees, Robert J. Ryan and Boston Redevelopment Authority.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

In this appeal we must decide whether a municipal ordinance governing the licensing of public amusements and exhibitions unconstitutionally interferes with the right of an adult book store to offer to the public a coin-operated motion picture business.

I.

Since 1974 the City of Boston's zoning code has restricted operation of so-called adult uses to a single downtown Adult Entertainment District, popularly known as the Combat Zone. In addition, all "theatrical exhibitions, public shows, public amusements and exhibitions of every description" are required to obtain a license before they may operate for pay. This requirement, 14 City of Boston Codes §§ 426-428, has been enacted pursuant to a state statute authorizing such municipal regulation, Mass.Gen.Laws ch. 140, § 181. Section 181 was reenacted in 1979 after its predecessor, which empowered a municipality to deny a public amusement license upon finding only that granting one "would lead to violations of the public safety, health, or order", was declared unconstitutionally vague in City of Fitchburg v. 707 Main Corp., 369 Mass. 748, 343 N.E.2d 149 (1976). A similarly worded Boston ordinance issued pursuant to that earlier statute had been declared unconstitutionally vague in Galarelli v. White, Civ.No. 73-2587-G (D.Mass. Sept. 21, 1973) (unpublished).

The statute as reenacted makes it a crime to operate a public amusement for pay without a license, and delegates the power to grant or deny licenses to local governments. The revised section material to this lawsuit 1 provides that:

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"(T)he mayor or selectmen shall grant such license or shall deny such license upon a finding that issuance of such license would lead to the creation of a nuisance or would endanger the public health, safety or order by:

(a) unreasonably increasing pedestrian traffic in the area in which the premises are located or

(b) increasing the incidence of disruptive conduct in the area in which the premises are located or

(c) unreasonably increasing the level of noise in the area in which the premises are located."

The City ordinance in all material respects simply quotes the statute, with the significant exceptions of an added fourth ground for denial and a condition applicable to all four criteria. The added criterion, (d), allows denial if a license would "otherwise significantly harm( ) the legitimate protectable interests of the affected citizens of the city", while the general condition provides that "no application shall be denied if the anticipated harm is not significant or if the likelihood of its occurrence is remote".

Plaintiffs-appellants are three adult book stores offering coin-operated motion pictures for pay in the city of Boston. They like others had operated their businesses without licenses since the earlier licensing regulations were declared unconstitutional. They became subject to the new licensing laws in 1979, and in July and August 1980 applied for licenses to operate their films through December 31, 1980. 2 They filed their applications with appellee Prevost, Executive Director of the Mayor's Office of Consumer Affairs and Licensing, to whom appellee White had delegated his authority as Mayor of appellee City of Boston. 3 Prevost presided over hearings on the applications in September and October 1979, at which virtually all testimony focussed on nearby residents' objections to the activities in the Combat Zone as a whole. The only testimony directed with any specificity to appellants' applications came from representatives of organizations interested in purchasing and redeveloping the building in which appellants operated. This testimony, which was supplemented by a letter to Prevost, emphasized the importance of such redevelopment to the financial well-being of the surrounding community, and asserted that the existing uses would be incompatible with that redevelopment and could lead to future safety and traffic problems. These claims, in appellants' view, must be understood in the context of ongoing publicly-stated efforts by appellee White and others to "eliminate" the Combat Zone as a whole, and of appellee White's specific assertion that rehabilitation of this building would "remove five pornographic outlets from the city."

Prevost denied all three appellants' applications by identical letters dated November 17, 1980. Noting the proposed future use of the building, Prevost gave two grounds for her decision, closely tracking the second and fourth criteria of the city ordinance: that granting a license could increase disruptive and illegal conduct, and that it would not serve "the legitimate protectible interests of the affected citizens of the city". She also asserted, in accordance with the requirement of the ordinance, that "the anticipated harm is significant and the likelihood of its occurrence is not remote." In a later

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affidavit, Prevost asserted that she did not deny the applications to facilitate the eviction of appellants, although she acknowledged that she acted in part because the building was scheduled for imminent redevelopment. The building was purchased on December 2, 1980, and eviction notices were sent to all three appellants on December 4. 4 Appellants' request for preliminary injunctive or declaratory relief was denied by the district court and this appeal followed.

II

Appellants press essentially three arguments: that the ordinance is a form of prior restraint not justified as a time, place and manner restriction or by a compelling state interest; that the ordinance fails to provide necessary procedural safeguards for the denial of a license; and that the substantive standards established by the ordinance are both vague and overbroad, lacking narrow or definite standards and vesting the licensor with impermissible discretion. We address each in turn.

A

Any government regulation that limits or conditions in advance the exercise of protected First Amendment activity constitutes a form of prior restraint, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 552-58, 95 S.Ct. 1239, 1243-46, 43 L.Ed.2d 448 (1976), and any such restraint comes "bearing a heavy presumption against its constitutional validity". Id. at 558, 95 S.Ct. at 1246, quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). See New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971); Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). 5

At the same time, however, it is clear that not all prior restraints are constitutionally impermissible. See Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). Regulations governing in advance the time, place or manner of expression permitted in a particular public forum are valid if they serve important state interests by the least restrictive means possible. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45 L.Ed.2d 125 (1975); Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471 (1965). Put another way, a regulation that is directed primarily at conduct or at non-communicative aspects of protected expressive activities is permissible despite an incidental prior burden on expression if it is justified by sufficiently strong permissible government interests. See Konigsberg v. State Bar of California, 366 U.S. 36, 50-51, 81 S.Ct. 997, 1006-1007, 6 L.Ed.2d 105 (1961). These standards have been stated in terms of a four-part test:

"(1) if it is within the constitutional power of the Government; (2) if it furthers an important or substantial governmental interest; (3) if the governmental interest is unrelated to the suppression of free expression; and (4) if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).

See generally Tribe, American Constitutional Law, §§ 12:2 at 580-82, 12:20 at 682-84 (1978) (unlike government action aimed at communicative impact, action aimed at noncommunicative impact but having impact on communication will be analyzed by balancing regulatory interests against First

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Amendment values; only "unduly" restrictive regulations unconstitutional).

We think the ordinance before us is not per se impermissible as a prior restraint under these standards. On the dispositive question of defining the interests the regulatory scheme is designed to address,...

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