City News & Novelty Inc. v. City of Waukesha

Decision Date17 January 2001
Docket Number991680
Citation121 S.Ct. 743,148 L.Ed.2d 757,531 U.S. 278
Parties CITY NEWS AND NOVELTY, INC., PETITIONER v. CITY OF WAUKESHASUPREME COURT OF THE UNITED STATES
CourtU.S. Supreme Court
Syllabus

The City of Waukesha, Wisconsin (City), requires sellers of sexually explicit materials to obtain and annually renew adult business licenses. When petitioner City News and Novelty, Inc. (City News), applied for a renewal of its adult business license, then due to expire in two months, Waukesha's Common Council denied the application, finding that City News had violated the City's ordinance in various ways. The denial was upheld in administrative proceedings and on judicial review in the state courts. Petitioning for certiorari, City News raised three questions, including whether the guarantee of a prompt judicial review that must accompany an adult business licensing scheme, see Freedman v. Maryland, 380 U.S. 51, 59; FW/PBS, Inc. v. Dallas, 493 U.S. 215, 229, means a prompt judicial determination on the merits of a permit denial, as some Federal Circuits have held, or simply prompt access to judicial review, as the Wisconsin Court of Appeals, below, and other courts have ruled. Because this Court granted the petition only on this question, City News cannot now contend that any of the substantive requirements governing adult business licenses in Waukesha conflict with the First Amendment. Nor does City News contend that the evidence failed to substantiate the charged violations.

Held: Because City News is not properly situated to raise the question on which this Court granted review, the petition is dismissed and the judgment of the Wisconsin court is left undisturbed. Pp. 3_7.

(a) This case has become moot. After petitioning for certiorari, City News withdrew its renewal application and ceased to operate as an adult business. City News no longer seeks to renew its license and currently expresses no intent to pursue a license. Accordingly, City News no longer has a legally cognizable interest in the outcome. E.g., County of Los Angeles v. Davis, 440 U.S. 625, 631. Neither of City News's arguments that the case remains fit for adjudication is persuasive. The Court rejects City News's contention that, because it never promised not to reapply for a license, a live controversy remains under Erie v. Pap's A. M., 529 U.S. 277. Erie differs critically from this case. In Erie, as in the instant case, the Court confronted an adult business' challenge to a city ordinance. There, the Court held that the controversy persisted, even after the adult business shut down, in part because the business could again decide to operate. Id., at 287. That speculation standing alone, however, did not shield the case from a mootness determination. Another factor figured prominently. The nude dancing entrepreneur in Erie sought to have the case declared moot after the business had prevailed below, obtaining a state-court judgment that invalidated Erie's ordinance. Id., at 288. Acceptance of the mootness plea would have resulted in dismissal of the petition, leaving intact the judgment below. See ASARCO Inc. v. Kadish, 490 U.S. 605, 621, n. 1. As a result, Erie would have been saddled with an ongoing injury, i.e., the judgment striking its law, and the adult business arguably would have prevailed in an attempt to manipulate the Court's jurisdiction to insulate a favorable decision from review, 529 U.S., at 288. Here, in contrast, City News left the fray a loser, not a winner. Dismissal of the petition will not keep Waukesha under the weight of an adverse judgment, deprive the City of its state-court victory, or reward an arguable manipulation of the Court's jurisdiction. The Court also rejects City News's contention that it experiences ongoing injury because it is conclusively barred by Waukesha's ordinance from reopening as an adult business until 2005. It is far from clear whether City News actually suffers that disability. And a live controversy is not maintained by speculation that City News might be temporarily disabled from reentering a business that it has left and currently asserts no plan to reenter. See Spencer v. Kemna, 523 U.S. 1, 15_16. Pp. 3_6.

(b) City News's contention that it remains a qualified complainant also fails on another ground. Full briefing and argument have revealed that the Freedman question City News tendered, and which the Court took up for review, is not now and never was accurately reflective of City News's grievance. Unlike the initial license applicant whose expression cannot begin prepermission, City News was already licensed to conduct an adult business and sought to fend off a stop order. Swift judicial review is the remedy needed by those held back from speaking. The Court does not doubt that an ongoing adult enterprise facing loss of its license to do business may allege First Amendment injuries. Such an establishment's typical concern, however, is not the speed of court proceedings, but the availability of a stay of adverse action during the pendency of judicial review, however long that review takes. Unlike the Freedman petitioner, who sought, through swift court review, an end to the status quo of silence, City News sought to maintain, pendente lite, the status quo of speech (or expressive conduct). This Court ventures no view on the merits of an argument urging preservation of speech (or expressive conduct) as the status quo pending administrative and judicial review proceedings. That question is not the one on which the courts have divided or on which certiorari was granted here. Pp. 6_7.

Certiorari dismissed. Reported below: 231 Wis. 2d 93, 604 N. W. 2d 870.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN, DISTRICT II

Ginsburg, J., delivered the opinion for a unanimous Court.

Opinion of the Court

Justice Ginsburg delivered the opinion of the Court.

In Freedman v. Maryland, 380 U.S. 51 (1965), a case involving a state motion-picture censorship scheme, the Court announced procedural requirements necessary to guard against unconstitutional prior restraint of expression. Those requirements included assurance of "a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Id., at 59. Twenty-five years later, in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), the Court applied some of the Freedman standards to a municipal ordinance conditioning the operation of sexually oriented businesses on receipt of a license. Unsuccessful applicants for an adult-business license, the opinion announcing the judgment stated, must be accorded "an avenue for prompt judicial review." Id., at 229.

Courts have divided over the meaning of FW/PBS's "prompt judicial review" requirement. Some have held that the unsuccessful applicant for an adult business license must be assured a prompt judicial determination on the merits of the permit denial. See, e.g., Baby Tam & Co. v. Las Vegas, 154 F.3d 1097, 1101_1102 (CA9 1998); 11126 Baltimore Blvd., Inc. v. Prince George's County, 58 F.3d 988, 999_1000 (CA4 1995) (en banc). Others, like the Court of Appeals of Wisconsin whose judgment is before us, 231 Wis. 2d 93, 115_116, 604 N. W. 2d 870, 882 (1999), have held that prompt access to court review suffices. See, e.g., Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251, 1256_1257 (CA11 1999); TK's Video, Inc. v. Denton County, 24 F.3d 705, 709 (CA5 1994). We granted certiorari to resolve the conflict. 530 U.S. 1249 (2000). We now find, however, that the issue stemming from Freedman is not genuinely presented to us in this case. We therefore dismiss the petition and leave the judgment of the Wisconsin court undisturbed.

I

The City of Waukesha, Wisconsin (City), requires sellers of sexually explicit materials to obtain and annually renew adult business licenses. See Waukesha Municipal Code §§8.195(2), (7) (1995), reprinted in App. to Pet. for Cert. 101, 104. Petitioner City News and Novelty, Inc. (City News), pursuant to a City license first obtained in 1989, owned and operated an adult-oriented shop in downtown Waukesha. In November 1995, City News applied for a renewal of its license, then due to expire in two months. In December 1995, Waukesha's Common Council (Council) denied the application, finding that City News had violated the City's ordinance by permitting minors to loiter on the premises, failing to maintain an unobstructed view of booths in the store, and allowing patrons to engage in sexual activity inside the booths. Waukesha's refusal to renew City News's license was upheld in administrative proceedings and on judicial review in the state courts.

Petitioning for certiorari, City News raised three questions. First, City News asserted that the persuasion burden had been improperly assigned to it. Second, City News urged that Waukesha's ordinance unconstitutionally accorded City officials unbridled discretion to vary punishments for ordinance violations. Third, City News asked us to "resolve the conflict among the circuits concerning whether the guarantee of prompt judicial review that must accompany [an adult business] licensing scheme means a prompt judicial determination or simply the right to promptly file for judicial review." Pet. for Cert. 13. We granted the petition only on the third question. Accordingly, City News cannot now contend that any of the substantive requirements governing adult business licenses in Waukesha conflict with the First Amendment. Nor does City News contend that the evidence failed to substantiate the charged...

To continue reading

Request your trial
168 cases
  • Beahn v. Gayles
    • United States
    • U.S. District Court — District of Maryland
    • 26 Julio 2021
    ...judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha , 531 U.S. 278, 284 n.1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). "[T]he exception seeks to prevent ‘a manipulative litigant immunizing itself from suit inde......
  • Greenberg v. Goodrich
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 24 Marzo 2022
    ...judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha , 531 U.S. 278, 284 n.1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001) (internal citation omitted)."Voluntary cessation cases highlight the important difference be......
  • Dolls, Inc. v. City of Coralville, Iowa
    • United States
    • U.S. District Court — Southern District of Iowa
    • 24 Marzo 2006
    ...625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (additional quotations omitted)); see also City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). If a case presents no case or controversy as a result, dismissal is required because any opinion......
  • Brach v. Newsom
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 15 Junio 2022
    ...to defeat a judgment, by temporarily altering questionable behavior," does not apply here. City News & Novelty, Inc. v. City of Waukesha , 531 U.S. 278, 284 n.1, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001). The State did not abandon its policy after suit was filed in July 2020. Rather, the 2020–2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT