Forbes v. City of Seattle

Decision Date18 January 1990
Docket NumberNo. 56367-5,56367-5
Citation785 P.2d 431,113 Wn.2d 929
PartiesRoger FORBES, Appellant, v. CITY OF SEATTLE, Respondent.
CourtWashington Supreme Court
Jack R. Burns, Bellevue, for appellant

Douglas N. Jewett, Seattle City Atty., Jorgen G. Bader, Asst., Seattle, for respondent.

DURHAM, Justice.

The present case tests the constitutionality of a Seattle municipal ordinance which levies an admission tax upon patrons of motion picture theaters, and exempts patrons of nonprofit, tax-exempt organizations from the tax. The trial court held the ordinance to be constitutional in all respects. We affirm.

The Seattle municipal ordinance at issue here was originally adopted March 31, 1943 and, as amended from time to time, has been in effect ever since. Seattle Municipal In the present case, Roger Forbes challenges the constitutionality of the ordinance. Forbes operates the Embassy and Midtown theaters in Seattle. Both the Embassy and the Midtown theaters exhibit feature length video tape motion picture films. Under the ordinance, patrons of Forbes' theaters are not exempt from the admission tax, and he has collected the admission tax accordingly. 2

                Code (SMC) 5.40.   The ordinance, as authorized by RCW 35.21.280, levies an admission tax upon everyone who pays an admission charge.   The admission tax is imposed at the rate of 5 percent of the admission charge. 1  SMC 5.40.020(B).   Although the admission tax applies to a wide range of events for which an admission charge is required, SMC 5.40.010(A)(1)-(6), there are several categories of exemptions from the admission tax.   See SMC 5.40.025-5.40.028
                

On August 31, 1988, Forbes filed a civil action in King County Superior Court seeking a declaration that the admission tax violated rights guaranteed to his patrons by the first amendment to the United States Constitution and article 1, section 5 of the Washington State Constitution. 3 In addition, he alleged that exempting patrons attending artistic and cultural activities 4 of a college or university The City subsequently moved for partial summary judgment and Forbes moved for summary judgment. On November 7, 1988, after considering the materials presented by the parties, and finding no genuine issue of material fact as to SMC 5.40 and the City's administration of its admission taxes, King County Superior Court Judge Charles V. Johnson granted partial summary judgment 6 in favor of the City of Seattle, finding the ordinance constitutional in all respects. On November 10, 1988, Forbes timely filed notice of appeal of the trial court's judgment to the Court of Appeals. We accepted certification.

                and nonprofit, tax-exempt organizations, which meet certain requirements, 5 from the admission tax violates the equal protection guaranties of the fourteenth amendment to the United States Constitution and article 1, section 12 of the Washington State Constitution.   The City filed a counterclaim against Forbes alleging that although he has collected admission taxes from persons paying an admission charge to the Midtown and Embassy theaters, he has failed to remit those funds to the Director of Licenses and Consumer Affairs since October 1987
                

We are asked to decide if SMC 5.40 abridges the guaranties of free speech or equal protection of the state and federal constitutions. Forbes' two constitutional challenges are addressed separately.

We first address Forbes' free speech challenges. He argues that SMC 5.40.020, as applied to patrons of his theaters, constitutes a prior restraint. In addition, Forbes contends that the admission tax is a discriminatory tax which violates the first amendment to the United States Constitution and article 1, section 5 of the Washington State Constitution. These claims are addressed seriatim.

When a party alleges a violation of rights protected under both the state and federal constitutions, we first interpret and apply the Washington State Constitution. Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988); O'Day v. King Cy., 109 Wash.2d 796, 801-02, 749 P.2d 142 (1988). However, whenever a claim of right is made under the Washington Constitution, we must first decide if the asserted right is more broadly protected under the state constitution than it is under federal constitutional law. Bedford v. Sugarman, 112 Wash.2d 500, 507, 772 P.2d 486 (1989). In State v. Gunwall, 106 Wash.2d 54, 61-62, 720 P.2d 808 (1986), we enumerated several nonexclusive neutral criteria which must be met before this court considers state constitutional analysis. As a matter of policy, examination of the Gunwall criteria is essential in order for the process of state constitutional analysis to be " 'articulable, reasonable and reasoned.' " Bedford v. Sugarman, supra at 507, 772 P.2d 486 (quoting State v. Gunwall, supra at 63, 720 P.2d 808). Because Forbes has failed to discuss the minimum criteria mentioned in Gunwall, we decline to undertake a separate analysis of Const. art. 1, § 5 at this time. State v. Carver, 113 Wash.2d 591, 598-99, 781 P.2d 1308 (1989); State v. Long, 113 Wash.2d 266, 271, 778 P.2d 1027 (1989); State v. Jones, 112 Wash.2d 488, 498, 772 P.2d 496 (1989); State v. Worrell, 111 Wash.2d 537, 539 n. 1, 761 P.2d 56 (1988); State v. Wethered, 110 Wash.2d 466, 472, 755 P.2d 797 (1988). Accordingly, Forbes' free speech claims will be decided under federal constitutional law.

PRIOR RESTRAINT

Forbes maintains that SMC 5.40.020 constitutes a prior restraint because it imposes a governmental charge (admission tax) upon patrons who pay an admission charge to for-profit motion picture theaters. 7 He cites State v. Coe, 101 Wash.2d 364, 679 P.2d 353 (1984), to define the type of governmental action that constitutes a prior restraint. In State The rudimentary question underlying Forbes' prior restraint claim is whether the limitation imposed by the admission tax constitutes an unconstitutional prior restraint. We begin our analysis by noting that governmental action which amounts to an unconstitutional prior restraint usually has two distinguishing features. First, the governmental decision to restrain the speech is based on the content of the speech. Second, the speech is restrained in advance of publication. In the present case, however, these characteristics are absent. The admission tax is content neutral; i.e., the tax does not vary according to the type of speech involved. Moreover, the admission tax does not restrain, in advance, the exhibition of any motion picture. Thus, Forbes' argument that SMC 5.40.020 is a presumptively unconstitutional prior restraint is not well-founded.

                v. Coe, supra, we explained that prior restraints are " 'official restrictions imposed upon speech or other forms of expression in advance of actual publication.' "  Coe, at 372, 679 P.2d 353 (quoting Seattle v. Bittner, 81 Wash.2d 747, 756, 505 P.2d 126 (1973)).   Forbes argues that the admission tax acts as a prior restraint because it imposes a condition upon the exercise of the constitutionally guaranteed right to view motion pictures.   In addition, he maintains that the admission tax chills protected speech by deterring potential recipients
                

The limitation imposed upon Forbes' patrons by the challenged tax does not constitute a prior restraint. The admission tax is not "imposed upon speech", rather, it is imposed upon an admission charge. Consequently, the tax does not satisfy the State v. Coe definition of a prior restraint ("official restrictions imposed upon speech"). In other words, viewing a motion picture does not trigger the tax; rather, payment of an admission charge to a nonexempt event triggers the tax.

Moreover, not all limitations on protected speech constitute prior restraints. In the present case, the limitation is distinguishable from a prior restraint. In Arcara v. Cloud First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited--indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.

Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), the Supreme Court distinguished a closure order (against a bookstore) from a prior restraint by noting two significant differences between ordinary limitations and those limitations which constitute prior restraints:

Arcara, at 705 n. 2, 106 S.Ct. at 3177 n. 2. See also Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 2207-08, 81 L.Ed.2d 17 (1984) ("an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny"). Similarly, the challenged ordinance here does not prohibit patrons of Forbes' theaters from viewing the motion pictures. Moreover, the admission tax does not depend on the content of a particular motion picture.

Finally, Forbes' claim that the admission tax chills recipients of protected speech is illusory. The record is devoid of any evidence that patrons of his theaters have in fact been deterred from viewing a film because of the admission tax.

In summary, a prior restraint is not a limitless label that attaches to any governmental action which impacts, no matter how indirectly or tangentially, First Amendment rights. A prior restraint occurs when the government engages in censorship; i.e., when there is an official restriction imposed upon speech in advance of publication. Although SMC 5.40.020 places a limitation upon the ability of taxpayers to attend events where there is an admission charge, the admission tax does not constitute a prior restraint.

DISCRIMINATORY TAX

Forbes next argues that...

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