FW/PBS, Inc. v. Dallas - Oral Argument

Argument of John H. Weston

Chief Justice Rehnquist: We'll hear arguments first this morning in Number 87-2012, FW/PBS v. City of Dallas; 87-2051, M. J. R. v. City of Dallas; and 88-49, Calvin Berry v. the City of Dallas.

Mr. Weston.

Mr. Weston: Thank you, Mr. Chief Justice, and may it please the Court:

These three consolidated cases present various challenges to this Dallas licensing ordinance.

The FW/PBS Petitioners and the M.J.R. Petitioners, bookstores, motion picture theaters, arcades, cabarets, attack the ordinance on various First Amendment grounds arising from their communicative activities.

The Calvin Berry, III Petitioners, motels, are included within the scope of the ordinance solely because they provide room rentals for periods of less than 10 hours.

They assert a different challenge, the absence of any justification for including them within the ordinance.

If the Court please, I will turn to the Berry matter first.

Under the ordinance, hotels or others providing rooms for rent for less than 10 hours are qualified, or are included as sexually oriented businesses.

And also under the ordinance no one may rent rooms for less than 10 hours unless they have license under the ordinance.

On its face, this legislation applies not only to Petitioners' hotels, but also to the Hilton, to Holiday Inn, the Sheraton, as well as other hotels and motels which provide accommodations for those in the airline industry and truckers and others on travel-sensitive and short schedules.

Given the lack of any reference whatsoever in this record or in the entire legislative process to short-term rental establishments, Petitioners respectfully assert that the scheme as to them is over inclusive and irrational, and is violative of equal protection and due process of the laws.

And if the Court please, I will now turn to the arguments of the other two Petitioners.

Respondents invite this Court to make radical and wholesale reductions in the most basic protections of the First Amendment which have traditionally safeguarded expression in this country.

They attempt to justify their ordinance by several quite remarkable propositions, including their statement that under the ordinance no religious or political discourse would be restrained.

I suppose, fairly, their argument extends to that if speech does not contain a component of religious or political discourse, it is then subject to lesser and perhaps ultimately no First Amendment protection.

If the First Amendment is to have any continuing long-or short-term validity, Respondents arguments must be resoundingly rejected.

This Court has consistently held over a long, long period of time--

Unknown Speaker: Would you accept a grudging rejection?

Mr. Weston: --If I can't get a resounding rejection I would accept a grudging one, Justice Scalia, as long as it is unequivocal.

This Court has held over a long, long period of time that any laws requiring, as a precondition to the engaging in speech, licenses--

Unknown Speaker: Well, these... these people are not, strictly speaking, engaged in speech.

They are selling stuff, aren't they?

Mr. Weston: --Well, I think that's... that's true, Your Honor.

There is... certainly consideration charged for the expression, but this Court has continually held that the fact that there was a charge attendant to expression itself, whether it be in the context of the sale of a newspaper or the sale of a book or the selling of an admission ticket for a ballet dance or for theater, certainly was no indication--

Unknown Speaker: No, I am not suggesting the... the exchange of something for the performance makes it anything less than speech, but these... these people are engaged in a commercial business.

Can't... can't a state require a license of these people the same way it requires the licensing of other people, for purposes of collecting a sales tax--

Mr. Weston: --Well, of course, Mr. Chief Justice.

I'm sorry, our point is not that a license per se is impermissible.

Of course not.

But rather that any license of this nature must be construed, must be evaluated, as this Court always has, as a prior restraint in the beginning.

Unknown Speaker: --Well, why... why is it a prior restraint?

Mr. Weston: Because without the license one may not engage in the speech.

And as this Court recently noted, its... in summarizing its decisions on prior restraint, that a prior restraint is classically that circumstance where government can deny or does deny a form in advance of expression.

One may not engage in the speech until one has a license.

One may not obtain... one does not get the license simply on paying the filing fee and paying... and paying one's money and filing the application.

Unknown Speaker: So requiring a permit for a parade, then, is a prior restraint?

Mr. Weston: Is a classical prior restraint, although it may be an adequate and a valid prior restraint.

As the Chief Justice well knows, not all prior restraints are invalid.

They simply start off requiring the extremely heavy scrutiny of this or any constitutional court, and they come to this Court or any other court with a heavy presumption against their invalidity.

That is the only point that we make.

And because the governmental power inherent in these prior restraints is so extraordinary, a set of rules involving strict scrutiny has of course been set up to ensure that government does not, intentionally or unintentionally, abuse the extraordinary power which these devices give them.

Unknown Speaker: And you take the position that commercial sales of sexually explicit speech are entitled to exactly the same protection as, for example, a political rally.

Mr. Weston: We take the position that there is no justification, Justice O'Connor, for creating any sort of hierarchy for speech under our constitutional framework.

We certainly think that there is nothing that indicates that the founders or the framers had any such concept.

We see no justification for doing so, and quite frankly, the response I guess to the implied question might well be why, and followed by what next.

The establishment of any hierarchy of speech diminishes ultimately the value of all speech.

And we would respectfully submit--

Unknown Speaker: Well, how about commercial speech.

Do you think that gets the same protection as political speech?

Mr. Weston: --Well, the Court obviously has wrestled with the question of--

Unknown Speaker: Do you think our cases would support the position that they are entitled to the same protection?

Mr. Weston: --No, I think that--

Unknown Speaker: Well, then there is some hierarchy.

Mr. Weston: --No.

I think that generically the Court certainly has indicated that at least commercial speech, in some circumstances, is not entitled to the same speech, but I think--

Unknown Speaker: Is this at least commercial speech?

Mr. Weston: --No, Your Honor, this would not qualify as commercial speech any more than the sale of a book, the sale of a newspaper, the sale of a ticket to a lock concert or whatever.

This speech is, in essence, speech or pure speech, which is to be construed and viewed exactly in that context, separate from the commercial, commerciality of the message, which lends the potentially second-class status to commercial speech.

The point I was going to make, Justice Stevens, is simply that the aspects of commercial speech seem really to be more akin almost to a time, place and manner circumstance with respect to it, rather than the content of the message of the commercial speech.

Unknown Speaker: What about obscene speech?

Is that a... is that a separate category?

Mr. Weston: Well, we know, Justice Scalia, that at least up until the present a continuing majority of this Court has held that obscene speech is simply expression, but not speech in the First Amendment sense.

Unknown Speaker: Well, you can call it not speech, but it's speech, isn't it?

Mr. Weston: Well, with all respect--

Unknown Speaker: I mean, let's not play games.

We have established a separate category of speech, obscene speech, to which we accord no protection, zero.

Right?

Mr. Weston: --Again, not wishing to play games at all, but this Court's decisions have made clear that, for purposes of the First Amendment, obscenity is not speech.

It is expression, but it is not speech.

And therefore, it is not entitled, after determinations of obscenity, that it is nonspeech, to any of the protections.

It may be seized, it may be destroyed.

It simply offers none of the incidence of protected quality which the expression in this case manifestly retains, because this material is not alleged to be obscene, and the standard for judging it or identifying it--

Unknown Speaker: Well, but if we can say that there is a separate category of speech which is not speech, as we have done in obscenity, I suppose we could say there is a separate category of speech which is only partly protected speech, as we have already done in commercial speech.

Mr. Weston: --Well, again--

Unknown Speaker: And indeed haven't we done that with respect to pornography, something just short of obscenity.

Haven't we permitted certain restrictions upon that that are not permissible with respect to--

Mr. Weston: --But not on the basis... well, obviously.

Perhaps we should define terms.

Obscenity is that erotic expression which has been determined to be beyond the pale of the First Amendment; it is nonspeech.

Commercial speech, as I have suggested, is not so determined by reference to its content.

It is more its purpose or its offered role or why it is being done in... in connection with any analysis that may be provided.

It really is, I believe, analytically, much more of a time, place or manner type of restriction.

With respect to pornography, sexually oriented speech, I am not aware of any majority holding of this Court which, on the basis of its being sexually oriented speech, has concluded that it is entitled to less protection.

Certainly, I am aware of what I respectfully call some tentative forays in that direction, but I do not believe, and I... I feel quite certain in saying, that there has been no such ruling on the part of this Court.

Unknown Speaker: --What about defamatory speech?

Mr. Weston: Defamatory speech typically has also been considered to be speech which is simply beyond the pale--

Unknown Speaker: Well, that is not correct; just a different burden when it is against a public figure and that sort of thing.

There are different rules applied to defamatory speech is a form of speech.

Mr. Weston: --Well, I think that is fair.

But again, defamatory speech is subject to whatever restraints or whatever inhibitions only after a determination that it falls into this quasi or this specifically unprotected category.

Unknown Speaker: Yes, but we're talking about speech that you would only say has been entitled to less protection if one can so conclude after determining it was sexually oriented speech.

You make that determination before you say it gets less protection.

Mr. Weston: I... I think there would not be a problem determining that speech were sexually oriented.

I think the problem would then be in terms of, at least with respect to that aspect of it, exactly how broad the category would be.

Because if one, for example takes a look at the definitional language in this ordinance, it makes very, very clear that even verbal descriptions of sexual activity bring material within the category under the ordinance.

I suspect that this would include Ulysses, and the extraordinary James Joyce depictions of a very explicit sex in the Molly Bloom soliloquy, as well as it would contain Harlequin dime store novels which deal extensively, and if not explicitly, describe certainly implied ultimate sexual activity.

Unknown Speaker: But strictly speaking, material doesn't come within the ordinance.

The ordinance does not ban any material whatever.

It just says that if a person is engaged in a business, a primary purpose of which, a primary purpose of which is the sale of such material, he needs to comply with the licensing.

Mr. Weston: Well, interestingly, Justice Scalia, the ordinance says that only with respect to bookstores, and that may well be why the city in its brief discussed bookstores only.

The other media, interestingly, are described in much more elastic terms.

For example, with respect to arcades, it's clear that the dissemination of even one film with a sexually oriented--

Unknown Speaker: Well, wait.

What kind of Plaintiffs do we have here?

Do we have arcade Plaintiffs--

Mr. Weston: --Yes, we have arcades, we have bookstores, we have theaters, we have adult cabarets, we have a... a rather broad array.

Unknown Speaker: --Do these Plaintiffs include all of the kinds of businesses covered by the ordinance?

I didn't understand that.

Mr. Weston: No, no, Your Honor.

They do not include sexual encounter establishments and nude modeling establishments.

But they include all of the potential speech oriented businesses, which are--

Unknown Speaker: Well, is... is it your position that if the ordinance is bad with respect to arcades, it's... it has to be bad with respect to bookstores too?

Mr. Weston: --No, I think that it would have to be evaluated in, with respect--

Unknown Speaker: Right.

So then respond to the point I made regarding bookstores.

Mr. Weston: --The--

Unknown Speaker: It is the case that no material is... is... prevented from being sold.

Mr. Weston: --Well, on the face it may appear that way, but it is very unclear as to what, in the literal language of the ordinance, is a... a principal business purpose, in terms of what exact... as opposed to primary... and that may make... I'm not trying to split hairs, that may make some semantical difference, because the term is... and a practical difference.

The term is simply not defined anywhere in the ordinance.

But... I... what... the notion clearly is, is that under the Dallas ordinance one may not disseminate the speech one has chosen to disseminate, absent obtaining a permit.

The only way, under the implication in... in Your Honor's question, that one may do so, is by agreeing to or choosing to disseminate other speech which would... which one would not otherwise do, some governmentally implied alternative speech, in order to qualify under the ordinance.

So, given that one could not justify the ordinance by requiring one to carry speech which otherwise one would not, Riley, Terminiello, one would think that in a real sense, Justice Scalia, this piece of legislation does in fact impose a total prior restraint in the City of Dallas on the ability of one to disseminate the speech one chooses in the absence of obtaining the permit.

Unknown Speaker: Actually you don't have to do other speech in order to fall out of the a primary purpose of which.

You could sell shoe shines and chewing gum, right?

Mr. Weston: No, because... I don't think so.

Unknown Speaker: Really?

Mr. Weston: Because one would... well, I suppose theoretically--

Unknown Speaker: Sure you could.

Mr. Weston: --Unless--

Unknown Speaker: You don't have to sell, the state in order... in order for you to avoid the licensing scheme, the state is not requiring you to... to promulgate other speech, so long as you have other business which makes the sale of the sexually explicit material not a primary purpose.

Mr. Weston: --I... I think that is probably a fair observation.

One could sell 95 percent a box of five cent Kleenex, or "Kleenices" and at the same time have one's entire other selection be sexually oriented expression, and conceivably, and again we don't know how the legislation will be dealt with, but of course the point would be what is one's principal business purpose.

And if the purpose was deemed to be the sexually oriented material, notwithstanding the acres and acres of shelves of Kleenex boxes, apparently the ordinance would still require qualification.

In my experience with these kinds of ordinances around the country, and it now spans more years than I would like to admit... these definitional aspects are expanded consistently to deal with whatever attempts are made by businesses to exempt themselves from the scope of the... of the legislation.

And so we would conclude, with respect to this portion, by simply noting that in a fair and principled sense this legislation is indeed a prior restraint.

One may not disseminate the speech of one's choice in a real sense, and depending on which of the media are involved, without applying for and being granted the permit.

And it is manifestly clear that none of the Freedman level safeguards are contained within it, there is no time period within which the city must grant the license or go to court to justify the denial.

There is no obligation on the part of the city to go to court to justify the denial at all, and manifestly there is no--

Unknown Speaker: Well, how would that fit in here?

I mean, in those cases it was a question of some... something being banned by a sensor, as I recall.

Mr. Weston: --But not in Riley, Mr. Chief Justice, where it was exactly a periodic--

Unknown Speaker: Well, let's... let's take Free... didn't you also mention Freedman?

Mr. Weston: --Well, yes, but the significance of Riley, of course, is that Riley expands the item specific factual setting of Freedman and many of the subsequent cases, and applies it to the totally so-called content neutral requirement of obtaining a periodic license as a precondition to be able to engage in speech where the purpose of the speech was to raise money.

Riley is, with all respect, an unequivocal application of the Freedman doctrine to the general, mere license as a precondition for speech.

And what I find most eloquent in the city's brief is that at no point, despite our frequent references to Riley and discussions of it and its being a new and important case, not one mention of Riley or attempt to distinguish its... its, we respectfully submit, clear holding.

What we would submit is for all of the reasons which underlie the Riley decision and the absence of the Freedman safeguards with respect to the entirety of this--

Unknown Speaker: Well, what... what would you... you say you are entitled to a quick hearing, in effect, on what?

Mr. Weston: --On whether the applicant is entitled to the license, so that the applicant may then commence the applicant's speech-oriented business.

Imagine, let me just, if I may--

Unknown Speaker: So... so what would you be arguing, supposing the city turns down the license, that you qualified under the terms of... of the statute?

Mr. Weston: --Yes, it may... it may well, the disqualification potential--

Unknown Speaker: Is that... is that what Riley held, that you had an, a... a right to appeal, whether or not you qualified under the state law?

I... I didn't read it that way.

Mr. Weston: --But isn't that the absolute implication?

The state sets us a licensure requirement which says that before you may speak you must obtain a permit.

You are to stay in limbo--

Unknown Speaker: Before you may sell these things.

You know, call it speak if you want, but this... the owner of these stores isn't speaking.

He's selling books.

Mr. Weston: --Mr. Chief Justice--

Unknown Speaker: Do you mean that every bookstore, I think this is the point, do you mean that every bookstore cannot be subjected to normal licensing requirements, but you have to have a... a special accelerated provision for the licensing of that type of business that engages in expression.

Bookstores, I suppose, stores... I don't know, stores that tell... sell television sets, they cannot be subjected to normal business licensing, which don't have time limits on... on when the city council must act.

Mr. Weston: --Justice Scalia, I don't think it is fair to include television sets within it, and I know that's not the--

Unknown Speaker: All right, leave out... sorry about that, I went too far.

Forget television sets, just... just... just bookstores.

Mr. Weston: --Yes.

The burden on municipal government with respect to it is de minimis.

Unknown Speaker: Is that the practice in... in communities throughout the country, that there are special licensing provisions for bookstores?

Mr. Weston: Absolutely.

In many, many communities, if not most, particularly where those communities truly are not interested in stifling any message or eliminating any materials disseminated at the businesses.

What those ordinances provide is that they have special time periods for First Amendment businesses, for expressive-oriented businesses, they have special provisions so that either the businesses may operate on the filing of an application fee, or they have a provision that states that either the permit is granted, or... is denied within 30 days or deemed granted, or some... or some time period.

Unknown Speaker: Well, what... what... what if a city has an ordinance that simply says in order to do business you've to show you have got a sales tax certificate, you are going to pay your sales tax, you have to have a... a zoning certificate to show your business in compliance with the zoning.

And it applies that across the board to everybody, including bookstores.

Now, do bookstores but nobody else have a right to a quick hearing on that sort of thing?

Mr. Weston: Well, with respect--

Unknown Speaker: You... you can answer that yes or no, can't you?

Mr. Weston: --Yes.

Unknown Speaker: Bookstores do.

Mr. Weston: Certainly.

And this Court has on many occasions made separate and... and set more sensitive requirements in connection with speech businesses or speech... speech-involved circumstances, simply because the cost of not doing so is terribly, terribly great.

We know that--

Unknown Speaker: Well, what on earth... what on earth is the cost of not doing so?

Why shouldn't a proprietor of a bookstore be held to the same zoning requirements and sales tax requirements as everybody else?

Mr. Weston: --But, Mr. Chief Justice, we're not suggesting in any way that the bookstore shouldn't be subject to the same requirements.

Unknown Speaker: Well, then why does the Constitution require a special deal for the bookstore owner?

Mr. Weston: Because we have placed speech and the First Amendment at a... at a special--

Unknown Speaker: But there is no case from this Court that comes anywhere close to supporting what you are saying.

Mr. Weston: --That what, Mr. Chief Justice, that have to be special concerns--

Unknown Speaker: That... that a bookstore, subjected to a general license requirement like everybody else to show that it is in compliance with a zoning ordinance, is entitled to a special hearing.

Mr. Weston: --The special hearing--

Unknown Speaker: Now, isn't... what... what is your closest case?

Mr. Weston: --If I may--

Unknown Speaker: Could you tell me what the case most closely supporting that position is?

Mr. Weston: --Yes, well, Riley is the one that most immediately comes to mind.

But the contemplation that there is some special hearing which we seek in connection with this is simply not the position.

One has, municipally, the opportunity to appeals.

One has the opportunity to litigation.

But what we are saying here is that, whereas, just as a store... a municipality may ban bowling alleys or may ban hardware stores or incinerators, or may subject that kind of activity to very, very long periods of time before permitting that activity to go, there is very little impetus on the part of a municipal government to do anything to frustrate or delay or retard the granting of the permit.

There is simply no issue that the speech involved in the concern will play any role.

This is not--

Unknown Speaker: How about a convenience store that sells newspapers and magazines?

Are they... they entitled to a special accelerated hearing, too?

Mr. Weston: --It would seem--

Unknown Speaker: Or a supermarket that, you know, sells--

Mr. Weston: --No, I... I think that's a fair question--

Unknown Speaker: --I think it is.

Mr. Weston: --and in order to balance it out it would seem that if businesses are primarily involved with expressive activity, then they should be dealt with in a way that permits the businesses to be protected from what we all know to be the case.

And that is that government will silence by delay indirectly if it cannot silence directly.

Unknown Speaker: And that is a constitutional principle, that if... if you sell nothing but newspapers you are entitled to an accelerated hearing, but if you sell newspapers and bubble gum or, you know, a lot of other things in a convenience store, you are not?

That's a constitutional principle?

Mr. Weston: I think the point... well, I think that is a fair implication in the fair sense, Justice Scalia, of what this Court's opinions have... have indicated, and certainly a fair sense of what the First Amendment protections have been designed to be, and must be, in order to make anything more than a hollow promise, the guarantees that speech will not be interfered with before a final judicial determination of its unprotectedness.

And what these pieces of legislation do is simply permit the cities to be able to do indirectly what they cannot do directly.

And unless we can maintain this kind of principled articulation of... of indication to government that where the First Amendment is concerned, and where we deal with primarily First Amendment or expressive businesses, given the minimal cost to government, and I assure you that these are minimal costs.

We are not dealing with nuclear power plants.

What the issue is here is a retail establishment to be able to sell books or to show movies.

That is the bulk of what the conduct is.

Unknown Speaker: And what, in a nutshell, are the requirements that you say have to be met?

Mr. Weston: Three, Justice O'Connor, with respect to this, and... and particularly dealing with the municipal piece of legislation where surely the municipal government is not in a position to control the progress of the courts, as the... as state government may well be.

That there must be a reasonable time period within which government must either grant the permit which government has said is... is required in... in order to do the speech conduct.

Secondly, that if government does not grant the permit within the reasonable period of time, then government must go to court to explain why it has failed to grant the permit.

And lastly, as part of that judicial proceeding, government must bear the burden of justifying its failure to grant the permit.

On that basis, there will be a meaningful opportunity for... for businesses not... to... to be protected at the trench level, at the... at the street... municipal level from censorship by delay and administrative and bureaucratic silence.

Unknown Speaker: Counsel, do you take it, take the position that the requirement for the license be denied for one who has been previously convicted of a crime as an independent basis for striking either that provision or the whole ordinance?

Mr. Weston: With respect, I think I understand your question, Justice Kennedy.

With respect to the Freedman argument that I have made, that would be with respect to the totality of the ordinance.

With respect to the specific non, either speech or nonspeech criminal conviction disqualification provisions, we would attack those independently.

Most immediate--

Unknown Speaker: My question is to those, I take it that a court, in sentencing, could impose these as a condition of parole, could it not?

Mr. Weston: --Or probation--

Unknown Speaker: Or probation.

Mr. Weston: --Surely.

Unknown Speaker: Well, then why can't the city exercise that same power here?

Mr. Weston: The aspect of a court imposing that particular post-probationary limitation is simply a substitute for the court's having the opportunity to place the defendant in jail, and by so doing deprive the defendant of doing anything, whether it be any sort of speech, any sort of business, any sort of normal human relationships.

That's a far cry, it seems, in terms of the analysis of a city not involved in the conviction situation, but the city more importantly dealing with the absolute license to speak.

Unknown Speaker: Well, it seems to me the prohibition is... the same in either case, and... and the court is certainly bound by the First Amendment just as the city council is.

Mr. Weston: The... but once again we know that a prisoner contained, confined in... in some custodial setting, simply loses basic rights of all dimensions.

And the probationary notion is simply a vicarious extension of the fact that the defendant's body could otherwise be imprisoned.

The term beyond the penal period is simply not subject to continuing restraint with respect to virtually any civil rights, at least as... that is not quite entirely true, we know that one may not possess a gun, in... in that sense, but in terms of fundamental rights, one, those... those restraints simply do not endure.

With respect to this setting, and what we stress, of course, is the obscenity conviction as a basis for disqualification or revocation, is, in this circumstance, the obscenity conviction clearly violates the classical prior restraints of Mere Citizens for Better Austin v. Keefe.

Unknown Speaker: I... I still don't see... I still don't see why a court can do it but the legislature can't.

The court says instead of giving you ten years I am going to give you five years and a probationary period during which you can't sell this kind... this kind of material.

Why can't a legislature say the same thing: well, we were going to make it ten years for obscenity, but instead we'll make it only five years and for the next, and permanently you can't go into the obscenity business afterwards, or the pornography business.

Mr. Weston: At the risk of sounding simplistic, the... the legislature, with respect to the Dallas city council, is simply not the legislature which has created the original punishment which provided the judge the opportunity to keep somebody in jail for ten or 15 years.

Unknown Speaker: Well, you're... you're avoiding the hypothetical though.

As a matter of state law, this hasn't been challenged beyond the authority of the city to do it.

Let's assume the legislature passed the law, in order to answer the question.

Mr. Weston: Well, but with respect to... I'm seeking to answer the question, it is not simply a question of legislative power.

Justice Scalia's question, Justice Kennedy, was simply why, if a court can keep an individual on probation where the court had the opportunity to confine that body, why can't a different legislature set a series of criteria for its own... for its own regulated business.

And the two, with all respect, strike me as complete non sequiturs.

The judge has the ability to keep that individual in jail; the judge owns that person.

The... the difference--

Unknown Speaker: Well, the legislative body of course determines the penalties for criminal offenses.

Why can't the legislative body say, in addition to whatever else is imposed in criminal sentencing, we determine it's inappropriate for someone convicted of certain crimes, for a certain period of time, to go into the business of selling sexually explicit material?

Mr. Weston: --I... I--

Unknown Speaker: You may answer the question.

Mr. Weston: --Thank you, Mr. Chief Justice.

I note, Justice O'Connor, really there are two aspects.

One, of course, are the speech predicate offenses, which then trigger the remedy to which the Court refers, or the nonspeech predicates to which... which trigger the same remedy.

With respect to the speech predicates I would simply note that it was the State of Minnesota in Near which sought to create the disqualification on Near for following the determinations that he had engaged in criminal libel or... or... or libel.

So it would appear that, for this Court, merely ceding the right to create this disqualification to the legislature is of no moment.

With respect to the analyses for the nonspeech predicate conduct, which are legion throughout this legislation--

Unknown Speaker: I think you have answered the question, Mr. Weston.

Your time has expired.

Thank you.

Mr. Weston: --Thank you, Mr. Chief Justice, I'm sorry.

Unknown Speaker: Ms. Muncy.

Argument of Analeslie Muncy

Mr. Muncy: Mr. Chief Justice, and may it please the Court:

While the Petitioners have raised a myriad of issues, I believe the critical issue in this case is whether the city has a justification for the licensing provisions in the ordinance that is unrelated to the... to the suppression of speech, and whether these provisions are substantially broader than necessary to achieve the city's purpose.

It is clear from the circumstances that led to the adoption of the ordinance that the city has ample justification for these provisions.

In 1985 and 1986 the City of Dallas was experiencing a proliferation of sexually oriented businesses in the city, as were many other large urban areas.

They were beginning to cluster in some areas and then they were beginning to open up in small neighborhood shopping centers.

So the city council determined that it should investigate the effects of these businesses, and did so by looking at studies from other cities.

It... it became evidence from these studies that there are serious problems of crime and urban blight associated with sexually oriented businesses.

The city... the city staff collected studies from nine cities, including Los Angeles, Phoenix, St. Paul and Austin, Texas.

Each of these studies was consistent in their findings that these businesses foster higher crime rates and lower property values in the areas where they are located.

Secondly, the city council looked at Dallas itself.

Unknown Speaker: Didn't those studies have to do with the problems arising from the concentration of such businesses?

Mr. Muncy: The studies looked at both areas, where there were concentrations of those types of businesses, and they looked at areas where maybe there was only one located, and I refer especially to the study from the City of Austin which looked at both--

Unknown Speaker: I thought the studies basically... address... addressed the concentration or the location of the in neighborhoods or adjacent to schools.

Did any of them address the question... I guess Dallas has zoning ordinances in effect requiring that such businesses, the businesses in question here, be spread out and located in only certain areas.

Is that right?

Mr. Muncy: --That is correct.

This ordinance created location requirements for sexually oriented businesses, and this Court did not accept any of the questions on that--

Unknown Speaker: That is not at issue here.

What is at issue is an additional requirement, to wit, the licensing requirement.

Mr. Muncy: --Yes, but we do have--

Unknown Speaker: Did the studies have to do with the effect of letting someone who has been previously convicted of any of these offenses go into business again?

Mr. Muncy: --No, the studies did not address that, only--

Unknown Speaker: I mean, they really supported the zoning aspects, didn't they?

Mr. Muncy: --They were--

Unknown Speaker: Not the licensing aspects?

Mr. Muncy: --Yes.

They were initiated to justify zoning, but they approached the crime that is generated by the businesses.

In addition, the city council looked at what was happening in Dallas and did studies around, or did a study around an area in Dallas where there were a number of these businesses.

And we do... while they are not in the Joint Appendix, there are exhibits in the record that describe what was happening in Dallas, and particularly an affidavit from a Dallas police officer that describes graphically what actually goes on in these businesses.

And if you are interested in looking, those are Defendant's exhibits number 19, 20, 21, 22, and 23.

The city council then decided to regulate the... the businesses and enacted the ordinance which is... which under attack here today.

Now, the question is, is there any constitutional problem with what they did.

While the Petitioners have attacked almost every provision in the ordinance, as best I can tell, there are... there are primarily two matters that are at issue.

Number one, whether persons convicted of certain crimes can be disqualified from operating sexually oriented businesses for a temporary period of time.

And secondly,--

Unknown Speaker: Are you raising any question of standing here at all to attack that particular position?

Mr. Muncy: --We did not raise the question of standing at this level.

We looked at the cases on standing and it seemed to us that we would not have a chance of prevailing on that issue, and we did not raise it at this level, although we did raise it at the lower levels.

Unknown Speaker: Do you think there is standing here?

Mr. Muncy: I believe that there are one or two of the Petitioners that have had their licenses denied based on criminal conviction.

In that... in that case I would have standing.

The second issue that I think is of some--

Unknown Speaker: Before you leave that, would you refresh my recollection.

Does this just prevent the licensee himself, I mean disqualify the licensee himself if he has a prior conviction, or does it also prohibit him from employing people who have prior convictions?

Mr. Muncy: --No, just the licensee.

Unknown Speaker: Just the licensee.

Mr. Muncy: Yes, the person operating--

Unknown Speaker: Well... well, the spouse of the licensee can be convicted of one of these crimes and that disqualifies the licensee, does it not?

Mr. Muncy: --Yes, it does.

The second issue that I think--

Unknown Speaker: One other point.

If someone is living or residing with the licensee and that person is convicted of one of the specified offenses, is that not grounds for denying the license?

Mr. Muncy: --Yes, it is.

But the second issue that the Petitioners have discussed most frequently is the, is whether the Freedman procedural safeguards apply to the licensing portion of the ordinance.

In response to the issue on--

Unknown Speaker: Could you... I... I... I didn't quite realize what Justice Kennedy just pointed out.

Does this mean that if somebody, say in a family, one member of the family, worked in a bookstore and got sometimes convicted of selling one obscene magazine, then everybody who lives in that family could be disqualified from... in that home, would be disqualified from getting a license?

Mr. Muncy: --No.

What it means is that if a person is, owns or operates or is the applicant or licensee for a sexually oriented business is convicted of one of the offenses that disqualifies, then that person's spouse or a person residing with that person cannot become the applicant or the licensee for that... for that business, or for a similar sexually oriented business in the city.

Unknown Speaker: The person has to have been operating a business at the time of the conviction.

Is that what you are saying?

In other words, say just before the ordinance was passed, Mr. X... Mrs. X was convicted of selling obscene magazines, working in a store.

Mr. Muncy: Then Mr. X would not be able to obtain a sexually oriented business license.

And the basis for that is that under Texas community property law both marriage partners have the same interest... financial interest, in the business as the other.

Unknown Speaker: And what if they were not married, if he just lived with Ms. X and she was convicted?

Mr. Muncy: You have hit on the basis for that provision being in the ordinance.

At least in Texas, common law marriages are quite prevalent, and that is the reason for having that--

Unknown Speaker: Well, say it's not a common law marriage.

I want to get away from the marriage.

They just live together, and therefore he's barred under the ordinance.

Mr. Muncy: --That is correct.

Unknown Speaker: How... how can you justify that?

Mr. Muncy: As I said, the... the base for including that provision in the ordinance is the prevalence of common law marriages in Texas.

And so, I suppose if they are not married and it is not a common law marriage, it's easy enough to move to a different apartment, if that is what it takes to get their license.

But--

Unknown Speaker: Or couldn't one say it is wholly arbitrary if you have those facts.

I mean, the ordinance isn't intended to make people break up their social relationships, is it?

Mr. Muncy: --No, it is not.

Unknown Speaker: So to that extent you are conceding, I think, the ordinance is over broad.

Maybe it's not very important--

Mr. Muncy: Well, I won't concede that it is over broad.

The... I think there are remedies for... for the person who is living with another one, but I... I... the best representation I can make to you about those two provisions is they are to get at the marriage situation.

Unknown Speaker: --What if they are brother and sister?

Does it still apply?

Mr. Muncy: It still applies, and in that case--

Unknown Speaker: So, if the sister is convicted of something, the brother cannot get a license?

Mr. Muncy: --In that case I think our... our argument would be that the close family relationship really means that the person who... who will continue to operate the business is probably the one that had the conviction in the first place.

Unknown Speaker: Well, what if the facts are just the opposite?

It was an isolated incident.

The woman worked for a convenience store that sold one obscene magazine; she happened to get convicted.

That disqualifies her brother.

Mr. Muncy: That disqualifies him if they are living together, from operating a sexually oriented business.

Unknown Speaker: If it disqualifies her brother, I suppose it disqualifies her father, too.

Mr. Muncy: If they are living together.

Unknown Speaker: They live in the same home.

And then I don't understand the justification for that.

I think you have said there is none, I think that's it.

[Laughter]

Mr. Muncy: The best justification I can give is that the intimate relationship that they have from living together probably indicates that in the operation of the business, we'll have the same operator that we had before the new license was issued.

Unknown Speaker: Well, I'm assuming there never was an operator before.

This is a brand new license.

The father or the brother applies for it, and a member of the family... household, has previously been convicted of one offense involving the sale of one obscene magazine.

And that disqualifies the whole household.

Mr. Muncy: I understand your question.

Unknown Speaker: Mrs. Muncy, do we have somebody who has standing to challenge this particular provision of the ordinance?

You say we have people who have been convicted.

Have... have they been convicted on the basis of being somebody's brother or sister, or live-in, noncommon law spouse?

Mr. Muncy: To my knowledge, none of the Petitioners has been disqualified on the basis of either of those provisions.

Unknown Speaker: So, maybe that provision is not before us.

Mr. Muncy: It is possible.

Unknown Speaker: That goes back to my question.

I... I'd like to get away on your responses to the implications of immorality.

Suppose the individual is an old World War II buddy who lost a leg, and he is sympathetic to him, and invited him to live in his house.

He'd still be disqualified?

Mr. Muncy: I would... yes, he would, but that is certainly not--

Unknown Speaker: Since we are getting into this matter, counsel, I... I... I think there are two different provisions.

One is, is that there is a disqualification if a spouse has been convicted of a crime.

The second is a disqualification if someone is residing with an applicant and that person has been denied a license.

Is that not the distinction?

So I think your case is slightly stronger than it sounds, unless I am misreading the ordinance.

Mr. Muncy: --That is correct.

That person--

Unknown Speaker: So the only... the only nonspousal disabilities are for persons who are residing with the applicant, if those persons themselves have been denied a license.

Is that not correct?

Mr. Muncy: --That is correct, that is exactly correct.

Unknown Speaker: Thank you.

Mr. Muncy: Yes, thank you.

But--

Unknown Speaker: Which explanation is quite apparent.

Its purpose is to prevent the evasion of the provision by simply when you are denied a... a license, getting it granted to someone else who is closely related to you, and you are the actual person running the business.

Mr. Muncy: --That is exactly the purpose of the provision, yes.

But, getting to the individual whose license is denied or revoked because of a criminal provision, the first point I want to make on that is that the First Amendment rights of consumers is in no way... no way affected by that provision.

These people are... intermediaries who are purveying the messages of others.

And if one individual has a license denied, there will be another to step in and take his place to operate that business.

Because, as the Petitioners pointed out in their Brief to the Fifth Circuit, the competition for locations under the location restriction is going to be fierce.

And again, the distributors, the national distributors of this material which are represented by the attorneys here today, have a vested interest in making sure that the number of outlets of these do not diminish.

And what we hope is that the result of this provision will make sure that these national companies that distribute this material will be motivated to find responsible people to operate the businesses that service their local outlets.

Unknown Speaker: Well, we don't have cases which say that a licensing procedure can be imposed on the press or the media on the grounds that other segments of the press or the media can promulgate the same message, do we?

Mr. Muncy: No.

Unknown Speaker: You... you are asking us really to strike out on... on very new ground on that argument, are you not?

Mr. Muncy: All I... all I'm saying is that the availability will not be diminished.

The First Amendment rights--

Unknown Speaker: All I'm saying is that that is a new argument for which you have no precedent.

Mr. Muncy: --The question of availability was referred to in--

Unknown Speaker: Is that correct or not?

Mr. Muncy: --in Justice Powell's concurring opinion in Young.

And I... he... he made quite a bit of that, and expressed the importance of availability of the material to the customers that... that seek... that seek it, to read it.

The second point that I want to make is that the only conceivable First Amendment interest that I think one can really be concerned about is that of the individual whose license is denied.

And we contend that this is an attenuated First Amendment interest at best because it has absolutely nothing to do with the content of the material that is being sold in the... inside the establishment or its creation.

It solely relates to the running of a commercial business.

Now, we're not saying that these--

Unknown Speaker: It has something to do with the content of the material that is sold, because it has... it is limited to sexually explicit material, isn't it?

Mr. Muncy: --That is correct, Mr. Chief Justice, but this ordinance is content neutral under the analysis in the Renton case, and the disqualification has nothing to do with the content of the material that is sold inside the establishment.

The disqualification is based on whether this individual has been convicted of prostitution or public lewdness or promotion of prostitution, or one of the other of 13 crimes that serve as a disqualification.

But we are not saying that individuals cannot express themselves through sexually explicit material, if that is what they want to do, just because they have had this license denied.

They may sell this same material, either wholesale through the mail, even door to door, and in fact, the day after a license is denied or revoked, they can sell the same material that was sold inside the business out on the street corner.

There is nothing to prohibit it.

I think that graphically illustrates that this ordinance has nothing to do with restraining any particular expressive material or an individual's right to sell it.

It only relates to the operation of a commercial business.

I think, given the legitimate and substantial interest that the city has that led to the passage of this ordinance, the city's position is that the minimal incidental burden that it places on the individual's right is more than outweighed by the city's substantial interest.

Unknown Speaker: Mrs. Muncy, what is it take to establish that a principal purpose of the business is the sale of... of... these... these materials portraying sexual acts?

Is... suppose I run a general bookstore and my overall purpose is to sell books, and it turns out that a substantial portion of the books, I don't know what you want to consider a substantial portion, but a substantial portion does contain either pictures or verbal descriptions of sexual activities that... that come under the ordinance.

Could it be said on that basis that I have as a principal purpose of that business, or do I have to have explicitly in mind when I go into the business... business, I am going to run a porno shop.

I... I want to have either a whole shop that is devoted to pornography, or I am going to have a, you know, a section of the store devoted to it.

Which, is there some scienter requirement?

Mr. Muncy: No, there isn't.

Unknown Speaker: There isn't.

Mr. Muncy: No.

As a practical matter, in the City of Dallas, we... there has been no confusion over that question because these businesses for the most part are 100 percent sexually explicit material.

However, we've had... given some thought to how... if we were called on to draw the line, how would we do it.

I think there are several factors that would enter into that.

One would be the percentage of the business in terms of display in the store and amount of sales, but equally important, I think, is the way the proprietor advertises the business.

Because a sexually explicit business has to attract a certain clientele, and if you don't advertise it you won't get that clientele.

Unknown Speaker: Well, that sounds like a sienter requirement.

I mean, that... that seems to me to be direct... directed precisely at what I asked you was a purpose and you said it wasn't.

You... you... you seem to be... to be saying the person must want to sell sexual material, that that's--

Mr. Muncy: I'm saying that could be one of the factors in the determination.

The other is the amount of display and the percentage of sales.

In... in... in discussing what percentage would... would it take to make this a sexually explicit business, I think we have discussed 10 percent to 25 percent of the business being in that type of materials as triggering that that is a principal business purpose of that particular business.

Unknown Speaker: --All right, well, let's assume Barnes and Noble's is running a bookstore in Dallas and 10 percent of its books contain description of sexual acts that come under the ordinance, which might not surprise me, and only one of those books has no literary or artistic value.

That's all it would take, right, if one book--

Mr. Muncy: No, that would not be a principal business purpose of that store.

Unknown Speaker: --Why wouldn't it?

Mr. Muncy: One book?

Out of thousands?

Unknown Speaker: No, no, no.

Ten percent of the books.

Mr. Muncy: Oh.

Unknown Speaker: Ten percent of the books contain description of sexual acts--

Mr. Muncy: Oh, I see.

Unknown Speaker: --but all of them except one book have literary value.

Mr. Muncy: Literary value.

Unknown Speaker: They would come within the ordinance, wouldn't they?

Mr. Muncy: No, because--

Unknown Speaker: There is an exception for literary--

Mr. Muncy: --There is exception from the licensing requirements for, and from the location requirements, for books with literary value.

Unknown Speaker: --No, there isn't.

The... the exception says it is a defense if every book has--

Mr. Muncy: Each.

Unknown Speaker: --each book has literary or artistic value.

That is quite different.

So if Barnes and Noble's happens to sell one book that has no literary value, and sells 10 percent of its overall sales of, you know, Ulysses and other books that describe sexual acts, Barnes and Noble is under the ordinance then, right?

Mr. Muncy: What I am saying is, you have told me that only one book qualifies for the licensing provisions under the ordinance, and what I am saying is that means that it is not a principal business purpose of that store.

Because the other, remainder of the 10 percent, are exempt under the exception for literary value.

Unknown Speaker: But no, they are not exempt.

They are not exempt.

You... you just acknowledged that the exception applies only if every--

Mr. Muncy: All right.

I think we're talking past each other.

Unknown Speaker: --I know I hope so.

Mr. Muncy: The, each book of the 10 percent, except one, is exempt from the licensing requirement.

Each but one.

And only one book qualifies as sexually explicit with no literary value, if I understand your hypothetical correctly.

Unknown Speaker: That's not how it reads.

Now... now, if you are telling me that is how it is interpreted, it will make it a lot easier case.

But that is certainly not the way it reads.

The... do you have the exception handy?

I forget what... I forget what section it is, but it says it shall be a defense to any prosecution that each... each of, each item of the sexually explicit material has literary value.

Mr. Muncy: I think I understand your question.

What I'm saying is that it will not qualify as a principal business purpose, so if only one of the books doesn't meet this exception, or this defense, that's my... that's what I am saying to you.

Unknown Speaker: But the business purpose has to be a purpose to sell sexually explicit material, which is simply defined as material that describes these sexual acts, whether it has literary value or not.

So, if you have as a business purpose selling this stuff, whether it has literary value or not, you have the... the offending purpose.

Mr. Muncy: I understand what you are saying, and my response would be that it wasn't the intent--

Unknown Speaker: Mrs. Muncy, were there any of the bookstore Plaintiffs in this action correspond to Justice Scalia's hypothetical, like Barnes and Noble--

Mr. Muncy: --No.

All the Petitioner bookstores in this case are 100 percent sexually explicit materials.

And just--

Unknown Speaker: --Was there a finding of fact on that?

Mr. Muncy: --I don't believe so, no.

No.

It's... no.

But just to--

Unknown Speaker: This was a facial challenge to the ordinance?

Mr. Muncy: --Yes, a facial challenge.

It was decided on the motions for summary judgment.

But just to comment once more on Justice Scalia's question.

The way I am describing the ordinance is the intent and the way that it is enforced.

Unknown Speaker: All right.

Mrs. Muncy, may I ask, the ordinance contains none of the Freedman procedures, does it?

Mr. Muncy: That's correct.

Unknown Speaker: Why?

Mr. Muncy: There... there--

Unknown Speaker: Why isn't that, without them isn't it fatally unconstitutional?

Mr. Muncy: --The Court has invalidated two types of licensing ordinances that don't contain the Freedman protections.

First is, where the issuance of a license, is dependent upon the content of the material.

And the second is, where the issuance of a license, is dependent upon totally, unbridled discretion of the issuing official.

And neither of those situations applies in this case.

There is nothing in the issuance of the license that has anything to do with the content of the material in this licensing system.

And secondly--

Unknown Speaker: Do you think that's what the Riley case found?

Mr. Muncy: --I don't think the Riley case is applicable here at all.

First... first of all, I believe the Court in the Riley case said that that was a content-based statute.

This is a content-neutral ordinance.

And second of all, the licensing portion of the ordinance... of the law in the Riley case, was invalidated because there was no time limit on when... it license could be issued.

And in this case we have a 30-day time limit.

The chief is required to issue the license within 30 days.

Unknown Speaker: And if it's... if it's denied, there is no provision that the city must take it to court and bear the burden of proof.

Mr. Muncy: That's... that's correct.

But each of the requirements for the license is objective, and it serves and provides criteria for a court to determine very easily if there has been any abuse of those requirements.

Unknown Speaker: Did Riley say that was an exception?

Mr. Muncy: I don't believe Riley addressed that issue.

Unknown Speaker: He doesn't have to issue it in 30 days unless there has already been obtained the certain other permissions... fire and... and other--

Mr. Muncy: Petitioners argued--

Unknown Speaker: --permission from other city's authorities that are needed, isn't that right?

Mr. Muncy: --Yes.

Petitioners argued in their reply brief that that was... could be used as a delaying tactic.

But let me say, the way the ordinance is administered, when an applicant puts in his application he is given the telephone numbers of the inspectors, he is told to call them, set up an appointment for when he will be there to allow the inspectors to inspect the business, and every effort is made to get everything done within 30 days.

If--

Unknown Speaker: I suppose that if that is bad anyway it is bad because the fire licensing ordinance is bad.

That is to say, even without this ordinance, if you didn't issue a fire permit to a... to a bookstore within... within a specified period you would be in violation anyway.

Mr. Muncy: --That is correct.

And... and with respect to the inspection provisions, because much has been made of that, under the Dallas development code every... every business is required to get a Certificate of Occupancy when it moves into a new location and... and the use of that structure changes.

Those requirements for a Certificate of Occupancy and the inspections that are required in that instance are exactly the same as the inspection... provisions that are in this ordinance.

So there is nothing different or unique about these inspection provisions than apply to all businesses that operate in the city.

Unknown Speaker: You don't have special provisions for bookstores?

Mr. Muncy: No, we do not.

It is the same for--

Unknown Speaker: Do you know if any Texas cities do?

Mr. Muncy: --I can't answer for other Texas cities.

All... all businesses must have a Certificate of Occupancy that require these inspection provisions.

For just a... a moment, let me comment on some of the arguments that counsel made.

On the question of principal business purpose not being in the language regarding video arcades and movie theaters, there the language is "regularly features sexually explicit films".

I have already addressed the question of the time period, there is a 30 day time period with regard to issuance of the license under this ordinance.

If the Court has a problem with analyzing the licensing provisions under a time, place and manners standard, I don't think the Court should have any problem in applying the O'Brien standard to the Dallas ordinance.

The... the incidental restriction that this ordinance places on a... a... an individual's First Amendment rights is not substantially broader than necessary to accomplish the city's crime control interests.

And the requirements and... and the disqualifications apply only to businesses that are documented to cause these types of sex-related crimes, and only sex-related crimes serve as disqualifications.

So I believe that the Court can apply the O'Brien standard, and it's our position that... that the provisions of this ordinance pass muster very easily under that intermediate level of First Amendment analysis.

Unknown Speaker: May I ask one question about the findings that the city made to justify the ordinance?

You said there was an increase of crime in the areas where these business take place.

Does that mean there was an increase in sex-related crime, or in all kinds of crime?

Mr. Muncy: The studies that are conducted by the other cities generally found the increase was in sex-related crime.

The study that the City of Dallas conducted in the areas that it looked at were in other kinds of crime as well, and in fact found that the increase in crime in the Dallas area around where these businesses were located was 90 percent higher than comparable commercial areas where they are not located.

Unknown Speaker: More robberies and... and things of that kind.

Mr. Muncy: Yes, assaults--

Unknown Speaker: But... but they don't disqualify people for having been prior felons, other than just... disqualification is only for prior sexually related crime.

Mr. Muncy: --It is only for sex-related crimes, and the lower... we had other crimes serving as disqualifications and the district court found that those were not sufficiently related to the licensing purpose, and so we removed those other crimes from the ordinance before it was appealed to the Fifth Circuit.

The licensing provisions of the Dallas ordinance have considerably less direct impact on the First Amendment rights of these individuals than do the location requirements in the ordinance, but they are equally important to the city's crime control purposes.

And so, for sound policy reasons as well as cogent legal justifications, we submit that the Court should affirm the court of appeals in this case.

Thank you very much.

Chief Justice Rehnquist: Thank you, Mrs. Muncy.

The case is submitted.