Supreme Court agrees to hear City News and Novelty case

Wednesday, June 21, 2000

The Supreme Court has added yet another adult entertainment case to its docket, but this time it is more interested in procedure than pasties.

The court on June 19 announced it would consider next fall the case of City News and Novelty, Inc. v. City of
which stems from a long-running dispute between local officials and the bookstore. City News and Novelty has sold adult-oriented magazines, videotapes and other materials in downtown Waukesha for more than a decade.

Lawyers for the store made a broad First Amendment challenge to the city’s licensing ordinance, which required the store to apply annually for a permit to operate. Its application was denied in 1995, and the issue has been in the courts ever since.

But the single issue the Supreme Court agreed to review involves what procedures must be followed to protect First Amendment interests while a license denial is being appealed. In cases where a law restricts freedom of expression, “prompt judicial review” of a license denial is required, the Supreme Court said in the 1990 decision FW/PBS, Inc. v. Dallas.

According to the City News brief, lower courts have split over whether that command requires a prompt judicial decision or merely requires prompt access to the appeals process. The store owners claim a prompt decision is required and that the store should remain open while the appeal is ongoing, to prevent “prior restraint” on expression.

The 4th, 6th and 9th U.S. Circuit Courts of Appeal have ruled that “prompt judicial review” means a prompt decision on the merits. The 1st, 5th and 7th Circuits have ruled that prompt access to review — not a prompt decision — is all that is required. It is this split in lower courts that likely prompted the Supreme Court to grant review.

The Wisconsin Court of Appeals opted for the more minimal review requirement in the case of the Waukesha store, “because we believe that a municipality does not have the authority to direct a state judicial court to issue a decision within a specified period of time.” The Wisconsin Supreme Court affirmed the decision, setting the stage for the City News appeal to the U.S. Supreme Court.

The Waukesha store was allowed to stay open during more of the lengthy appeals process. But in February, under threat of closing, the owners agreed to stop renting and selling adult videos. The store remains open and still sells sexually explicit magazines.

A decision in the case could have important impact in litigation over adult businesses nationwide. If businesses can be required to close during a lengthy appeals process over license disputes, many will be forced to go out of business even if their First Amendment claims are ultimately vindicated.

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.