Supreme Court revisits adult-business licensing

Thursday, March 25, 2004

WASHINGTON — The Supreme Court tried again yesterday to determine how promptly judges must act to resolve licensing disputes that shut down adult businesses.

But based on oral arguments in the case of City of Littleton v. Z.J. Gifts, No. 02-1609, it seemed possible that the issue might go unresolved yet again.

The Court has ruled that government actions amounting to “prior restraint” of speech are so offensive to the First Amendment that they need to be adjudicated urgently.

In the 1990 ruling FW/PBS v. City of Dallas, the Court applied that standard to laws for licensing adult businesses, requiring “prompt judicial review” when licenses are denied. But ever since, lower courts have disagreed over whether that means that a judge’s decision must be prompt, or merely that judicial proceedings must begin quickly. The high court took up two cases in 2001 (City News & Novelty Inc. v. City of Waukesha) and (Thomas v. Chicago Park District) that posed the same issue, but for separate reasons, both cases were resolved on other grounds.

The Colorado case involves a Littleton store named Christal’s that sells greeting cards, lingerie, novelty items, books and movies, some of which are sexually explicit. When Z.J. Gifts opened the store in 1999, the owners claimed it was not an adult business, so it did not seek a license as required for such establishments.

Instead it challenged the municipal licensing law as a First Amendment violation for a variety of reasons, including its failure to specify a prompt appeals procedure.

The 10th U.S. Circuit Court of Appeals sided with Z.J. Gifts on the issue, concluding that the requirement of prompt judicial review would be meaningless unless it meant a prompt final determination.

The appeals court also said, “The danger that an ordinance like Littleton’s may be improperly used as a subterfuge for censorship is too great to overlook the necessity for a prompt judicial determination.”

But as the Supreme Court heard the appeal of the 10th Circuit ruling, flaws in the case emerged. In a sense, the Littleton ordinance’s appeals process was never tested, since Z.J. never sought a license, and the company went straight to federal, not state court. Moreover, the store is still operating. While the case was pending in federal court, Littleton filed actions in state court to enforce the ordinance against the store. The city won an injunction against the business, but it was overturned on appeal while the suit continues.

“It’s hard to get a focus on how your business got hurt,” Justice Sandra Day O’Connor said to Denver lawyer Michael Gross, who represented the store.

“I don’t understand what complaint you have now,” added Justice Ruth Bader Ginsburg. “You’ve already had judicial review…. It sounds like you’ve had lots of access.” Gross replied that more than $2 million in fines are still pending in the state litigation.

If the Court gets past its procedural questions and rules on the merits, it is unclear which way it will go. Justice Antonin Scalia was incredulous at the notion that adult bookstores deserved quicker treatment than an average citizen with a zoning problem. “If that’s what we’ve arrived at, we should retrace our steps perhaps.”

Other justices seemed reluctant to impose strict deadlines on overloaded state courts. “I know what caseloads are,” said Justice David Souter, who was a New Hampshire state judge before joining the Supreme Court. He suggested a “circuit breaker” that would give a business its license if the courts did not at quickly enough on an appeal.

Justice Stephen Breyer also noted that once a case is in court, the business owner can take steps to curtail delays. “If the judge delays unreasonably, you have a host of judicial remedies.” Scalia and Chief Justice William Rehnquist also wondered if a municipality could, through an ordinance, tell a court how quickly to handle a case.

J. Andrew Nathan, arguing for the city of Littleton, minimized the First Amendment aspect of the case. “This does not have anything to do with speech,” he told the justices. Also arguing was Ohio Solicitor General Douglas Cole, representing 15 states that sided with Littleton. “Both constitutionally and jurisprudentially, prompt access to judicial review is all that is constitutionally required,” Cole said.

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