Advocates find little to cheer in free-speech victory

Tuesday, June 8, 2004

WASHINGTON — At first glance, the Supreme Court’s ruling yesterday in City of Littleton v. Z.J. Gifts appeared to be a significant win for the First Amendment, or at least for the owners of adult bookstores.

Answering a long-lingering legal question, the high court ruled that when governments deny licenses to adult businesses, courts must rule promptly on appeals filed by owners of the businesses. Merely allowing owners to file their appeals promptly is not enough to protect First Amendment interests, the Court said in a ruling written by Justice Stephen Breyer. Breyer’s tone was upbeat as he summarized the ruling from the bench.

But divisions in the ranks of the justices, plus other aspects of the ruling that upheld the Colorado procedures at issue in the case, soon led experts in the field to view the decision as barely a victory at all.

“I don’t know that they fixed anything,” said Cincinnati lawyer H. Louis Sirkin, who filed a brief in the case on behalf of the First Amendment Lawyers Association.

“I’m not happy with it,” added New York lawyer Michael Bamberger, a lawyer for the American Booksellers Association who also filed a brief in the case.

Both First Amendment advocates forecast a new round of litigation to sort out the meaning of yesterday’s decision as it applies to efforts by local governments to restrict or eradicate adult bookstores.

The ruling came in the case of Christal’s, an adult bookstore that opened in Littleton, Colo., in 1999. Instead of seeking a license under the city’s adult-business licensing ordinance, the owners, Z.J. Gifts, went to court to challenge the ordinance on its face, claiming it violated the First Amendment. A federal judge rejected the owners’ claims, but the 10th U.S. Circuit Court of Appeals sided with the owners in part. Recognizing the First Amendment harm that is done when government delays or restricts free expression, the appeals court said the city’s procedures did not guarantee a prompt judicial decision on zoning appeals when license applications were rejected.

The Supreme Court granted review in the case to clarify whether the First Amendment requires a prompt decision, or merely prompt access to the courts. The Court’s 1965 ruling in Freedman v. Maryland seemed to point toward requiring a prompt decision, while its 1990 precedent FW/PBS, Inc. v. City of Dallas spoke of the “possibility of prompt judicial review.”

Breyer’s majority opinion came down on the side of prompt judicial decisions. “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,” he wrote.

But he went on to say that Colorado’s regular procedures for handling civil lawsuits satisfy the requirement for prompt decisions, “as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly.” No special procedures or “unusually speedy” treatment is needed for cases involving expression-related businesses, Breyer stated.

“We have no reason to doubt the willingness of Colorado’s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm,” Breyer wrote. If there is any undue delay, he suggested, “federal remedies would provide an additional safety valve.”

But several justices in concurring opinions signaled that Breyer’s treatment of the issue does not sufficiently protect against abuse. Justice John Paul Stevens said, “the mere possibility of promptness is emphatically insufficient to guard against the dangers of unjustified suppression of speech.”

Justice David Souter, joined by Anthony Kennedy, also sounded an alarm. “Because the sellers may be unpopular with local authorities, there is a risk of delay in the licensing and review process. If there is any evidence of foot-dragging, immediate judicial intervention will be required,” Souter wrote.

Justice Antonin Scalia also concurred in the ruling, but said that Christal’s was not engaged in any activity protected by the First Amendment.

Breyer’s “trust the courts” attitude is not justified, say the First Amendment lawyers who filed briefs in the case. “The court is a little unrealistic when it says the courts will do what they are supposed to do,” said Sirkin.

Added Bamberger, “Having procedures gives the courts the discretion to apply their procedures in some cases but not in others.”

They say the Breyer opinion, even though its bottom line calls for prompt judicial decisions, will give them little ammunition to challenge lower courts’ handling of appeals by adult-business owners. As long as courts treat appeals from adult businesses no worse than other types of suits, they fear, any kind of slow handling of their cases will suffice. If, for example, courts in other kinds of cases do not rule on appeals for months, then such a delay could be found acceptable in adult-bookstore cases — even though the delay would suppress protected forms of expression.

“It’s at least a half-step backwards,” said Bamberger.

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