Quick look at City of Littleton v. Z.J. Gifts

Monday, June 7, 2004

Case name: City of Littleton v. Z.J. Gifts

Background: An adult bookstore opened in Littleton, Colo., in 1999. But instead of seeking a license under the city’s adult-business licensing ordinance, the owners of 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 agreed to review the case to resolve a dispute among lower courts over whether its past precedents require a prompt judicial decision in a case like Z.J.’s, or merely that prompt access to the courts is required.

Ruling: The First Amendment requires a prompt judicial decision — not just prompt access to the courts — when government denies a license for an adult business. In this case, the Littleton ordinance satisfies the requirement and is consistent with the First Amendment. Regular state rules of civil procedure governing the appeals process are sufficient, if judges are mindful of the First Amendment values at stake. Any inappropriate delays can be adjudicated on a case-by-case basis.

Verbatim: “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… . In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly. And whether the courts do so is a matter normally fit for case-by-case determination rather than a facial challenge. We reach this conclusion for several reasons. First, ordinary court procedural rules and practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.”

Lineup: The Court was unanimous as to the result, with Justice Stephen Breyer writing the opinion for the Court. Breyer’s opinion was joined in total by Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Clarence Thomas and Ruth Bader Ginsburg. Justice John Paul Stevens wrote a separate concurrence to caution that the majority opinion only guarantees the possibility of a prompt judicial decision and may be insufficient to protect the First Amendment. Justices David Souter and Anthony Kennedy joined in another concurrence that indicated that the Colorado rules may not be adequate to protect against foot-dragging by government in individual cases. Justice Antonin Scalia also wrote a concurrence to assert that Z.J. Gifts is not engaged in a business protected by the First Amendment.

First Amendment impact: By ruling that the First Amendment requires prompt judicial decisions in appeals of license rejections for adult businesses, the Court resolved a long-lingering dispute on the issue in a way that First Amendment advocates will welcome. But by indicating that ordinary court rules meet that requirement, the high court may have made it fairly easy for governments to comply with its decision without adding any special protection for expression-related businesses. It may also encourage another round of litigation over how prompt a decision must be.