City of Littleton v. Z.J. Gifts D-4, L.L.C., No. 02-1609 (S.Ct. 6/7/2004)
| Decision Date | 07 June 2004 |
| Docket Number | No. 02-1609.,02-1609. |
| Parties | CITY OF LITTLETON, COLORADO, PETITIONER v. Z.J. GIFTS D-4, L.L.C., a limited liability company, dba CHRISTAL'S. |
| Court | U.S. Supreme Court |
Stevens, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Kennedy, J., joined. Scalia, J., filed an opinion concurring in the judgment.
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.
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 () 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 (); 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) (); 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) ( a Circuit split); City News & Novelty, Inc. v. Waukesha, 531 U.S. 278, 281 (2001) (same).
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 Amendment did not require assurance of a "prompt judicial determination" of the applicant's legal claim. Second, in any event, Colorado law satisfies any "prompt judicial determination" requirement. We reject the first argument, but we accept the second.
The city's claim that its licensing scheme need not provide a "prompt judicial determination" of an applicant's legal claim rests upon its reading of two of this Court's cases, Freedman and FW/PBS. In Freedman, the Court considered the First Amendment's application to a "motion picture censorship statute" — a statute that required an "`owner or lessee'" of a film, prior to exhibiting a film, to submit the film to the Maryland State Board of Censors and obtain its approval. 380 U.S., at 52, and n. 1 (quoting Maryland statute). It said, "a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." Id., at 58. The Court added that those safeguards must include (1) strict time limits leading to a speedy administrative decision and minimizing any "prior restraint"-type effects, (2) burden of proof rules favoring speech, and (3) (using language relevant here) a "procedure" that will "assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." Id., at 58-59 (emphasis added).
In FW/PBS, the Court considered the First Amendment's application to a city ordinance that "regulates sexually oriented businesses through a scheme incorporating zoning, licensing, and inspections." 493 U.S., at 220-221. A Court majority held that the ordinance violated the First Amendment because it did not impose strict administrative time limits of the kind described in Freedman. In doing so, three Members of the Court wrote that "the full procedural protections set forth in Freedman are not required," but that nonetheless such a licensing scheme must comply with Freedman's "core policy" — including (1) strict administrative time limits and (2) (using language somewhat different from Freedman's) "the possibility of prompt judicial review in the event that the license is erroneously denied." 493 U.S., at 228 (opinion of O'Connor, J.) (emphasis added). Three other Members of the Court wrote that all Freedman's safeguards should apply, including Freedman's requirement that "a prompt judicial determination must be available." 493 U.S., at 239 (Brennan, J., concurring in judgment). Three Members of the Court wrote in dissent that Freedman's requirements did not apply at all. See 493 U.S., at 244-245 (White, J., joined by Rehnquist, C.J., concurring in part and dissenting in part); id., at 250 (Scalia, J., concurring in part and dissenting in part).
The city points to the differing linguistic descriptions of the "judicial review" requirement set forth in these opinions. It concedes that Freedman, in listing constitutionally necessary "safeguards," spoke of the need to assure a "prompt final judicial decision." 380 U.S., at 59. But it adds that Justice O'Connor's controlling plurality opinion in FW/PBS did not use the word "decision," instead speaking only of the "possibility of prompt judicial review." 493 U.S., at 228 (emphasis added); see also id., at 229 (); id., at 230 (). This difference in language between Freedman and FW/PBS, says the city, makes a major difference: The First Amendment, as applied to an "adult business" licensing scheme, demands only an assurance of speedy access to the courts, not an assurance of a speedy court decision.
In our view, however, the city's argument makes too much of too little. While Justice O'Connor's FW/PBS plurality opinion makes clear that only Freedman's "core" requirements apply in the context of "adult business" licensing schemes, it does not purport radically to alter the nature of those "core" requirements. To the contrary, the opinion, immediately prior to its reference to the "judicial review" safeguard, says:
These words, pointing out that Freedman's "judicial review" safeguard is meant to prevent "undue delay," 493 U.S., at 228, include 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. Thus we read that opinion's reference to "prompt judicial review," together with the similar reference in Justice Brennan's separate opinion (joined by two other Justices), see id., at 239, as encompassing a prompt judicial decision. And we reject the city's arguments to the contrary.
We find the second argument more convincing. In effect that argument concedes the constitutional importance of assuring a...
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