CITY OF LITTLETON v. Z.J. GIFTS D-4, L.L.C.
Littleton required adult businesses to apply for a permit to operate from the city. If the city denied the license, the business could appeal to a state district court under the Colorado Rules of Civil Procedure. Z.J. Gifts, an adult bookstore, wanted to operate in a place not zoned for adult businesses. Rather than apply for a license, they challenged the licensing law itself as unconstitutional, claiming that the Colorado Rules of Civil Procedure provide merely for prompt judicial review of city denial, not for a prompt judicial decision. Because stores denied a license cannot operate until the court has made its decision, they could potentially be forced to wait indefinitely for a license based solely on the content of the material they intend to sell. This, Z.J. argued, violated the Supreme Court's holding in Freedman v. Maryland, 380 U.S. 51, that censorship laws must provide for "prompt judicial determination."
The federal district court sided with Littleton. A Tenth Circuit Court of Appeals panel reversed.
Did Littleton's adult business licensing ordinance violate the First Amendment protection of Free Speech because it did not guarantee a prompt judicial decision when a business appeals the denial of a license?
Legal provision: Amendment 1: Speech, Press, and Assembly
No. In an opinion by Justice Stephen G. Breyer, the Court held that Colorado did not have to explicitly provide for a "prompt judicial determination" to make the law constitutional. As long as Colorado courts did not unnecessarily delay such claims, the normal judicial review process could be expected to provide a decision quickly enough to satisfy the constitutional demands. If the courts failed to make a prompt decision in a specific case, the business in that particular case could sue, but the absence of explicit "prompt judicial determination" language in the statute did not make it unconstitutional.
Argument of J. Andrew Nathan
Chief Justice Rehnquist: We'll hear argument first this morning in No. 02-1609, the City of Littleton v. Z.J. Gifts.
Mr. Nathan: Mr. Chief Justice, and may it please the Court:
This case presents the narrow issue of the judicial review appropriate for a license denial under Littleton's ordinance where clear, objective standards guide the city's quick and guaranteed decision to grant or deny a license and render that decision subject to effective review in the courts.
As FW/PBS has made clear, none of the three risks the Court has articulated to justify the extraordinary remedy of a mandated judicial deadline exist here.
Those risks are: the government will err in line-drawing between protected and unprotected speech; self-censorship stemming from a censored decision that speech is not protected; and foot-dragging when the government is the plaintiff seeking to vindicate its decision to censor.
Instead, where the decision to grant or deny a license for expressive activity is bounded by valid time, place, and manner considerations, this Court has held that certiorari review is appropriate.
That is because the alleged risk here that the city clerk will violate the ordinance when it requires a granting of a license is not a risk that flows from the language of the licensing standards at all, but rather a refusal to apply those objective standards.
Justice Ginsburg: Mr. Nathan, would you explain to me how this generally operates with adult shops?
In the... in the film context, the film can't be shown.
These were in the old days when they had censure boards.
So there was a great impetus to have quick action.
But here, I take it that the business was up and running and it was the city that said you need a license.
And my question is, do these questions... does the business start first and the city come in and say you need a license, or do... does the entrepreneur wait until... and... and apply for a license before starting up in business?
Mr. Nathan: --Typically the latter, Your Honor.
The entrepreneur would apply for a license and, assuming it is granted, would then start the business.
Justice Ginsburg: So this is an atypical case where the business was running and the city came in and said, you need a license?
Mr. Nathan: This is a case where a business started and filed litigation at the same time as it started against the city in Federal court.
Justice Souter: I suppose the city could have sought to enjoin the operation of the business until it got the license.
It didn't in this case, I take it, but they could have.
Mr. Nathan: The city... yes, Your Honor.
The city did do that.
Justice O'Connor: The Freedman case seemed to require prompt judicial determination, didn't it?
Mr. Nathan: Yes, it did, Your Honor.
Justice O'Connor: And it's your position that the subsequent case involving PBS changed that standard?
Mr. Nathan: In the licensing context, a requirement of a prompt judicial decision we believe is unnecessary and that's what FW/PBS held.
Justice O'Connor: Well, that surprises me to hear.
I didn't know that's what we had done.
Mr. Nathan: Well, the decision mentioned the availability of judicial review as the second Freedman standard.
Justice O'Connor: What... what about the proposal some of the States have made whereby a provisional license could be given pending the eventual judicial determination?
Mr. Nathan: The problem with the provisional license is twofold.
First, it would allow the secondary effects that the licensing ordinance seeks to prevent while the provisional license is granted.
And second, it would allow the business to drag its feet in court, whereas a business that needs a license has every incentive to pursue that.
Justice Kennedy: Well, if... if there's a danger of delay in litigation that... that both parties fear... and apparently you feared... isn't that all the more reason that before you have a license which restricts the publication of allegedly lawful speech, that you should have a... a system for prompt judicial determination?
Mr. Nathan: But where you have an ordinance, Your Honor, that does not deal directly with speech, has separate objective licensing standards that do not have anything to do with speech, the government does not bear the burden of going to court first.
But more importantly, the court should be able to determine if... readily from a record that's created by the administrative process as to whether or not the decision to deny the license is a subterfuge to deny speech.
And in that case, what happens is... is that a mandated judicial remedy would require courts to determine even those cases where the business is not claiming that there's a First Amendment reason for the denial.
They're just claiming that the denial is incorrect.
Justice Kennedy: Well, I... I... you could... if we're sitting here drafting a model ordinance, which is of course part of the problem that I'm presented with so far as the respondents are concerned, but if you're... if we're trying to envisage a model ordinance, just account for that contingency, saying our prompt judicial determination procedure applies only if there's a First Amendment claim.
Mr. Nathan: But I guess the question goes back to whether or not the risks justify imposing a mandated judicial deadline.
Justice Ginsburg: How serious is the burden?
I mean, there are now a few circuits that have said that prompt judicial resolution, not merely access, is required.
I think it's the Fourth, Sixth, and Ninth.
What has been the resolution there?
What have cities done?
Mr. Nathan: Well, cities have been groping for a solution to that question.
In Colorado, we would have a separation of powers issue.
It's very difficult to engraft in Littleton's ordinance a requirement that courts that it does not control rule within a set period of time.
Some of the cities have attempted to pass legislation.
Some have attempted to create their own court systems.
None of those is guaranteed to work and none of them are, we believe, mandated by the risks entailed.
Chief Justice Rehnquist: Do any of the courts which have said that prompt disposition, rather than just access... have they gone on to say that prompt appellate disposition, because presumably you can appeal from the ruling of... of a superior court or a trial court, that that also is required?
Mr. Nathan: I do not believe they have held that, Your Honor.
But I don't think that it is clear as to exactly how that is to be done.
Chief Justice Rehnquist: Because ordinarily, even if you get a prompt disposition in the trial court, you can wait, you know, a good year before you get a disposition on appeal.
Mr. Nathan: Yes, that's true, Your Honor.
Justice Souter: Has... has anyone suggested that your... I don't know the... the merits of this separation of powers problem that you raise, but has anyone suggested that the answer to that may simply be not to try to directly control the courts to come down with a decision after X days or weeks or whatnot, but simply have a kind of circuit breaker provision that if they don't, the license will be deemed to be granted?
Mr. Nathan: Well, I... I think that that's in the nature of a provisional license which would be that after--
Justice Souter: It could be provision.
It could be permanent.
If... if the... if the State doesn't want to move fast, you would get the license in the meantime, or... or perhaps get it permanently.
But that would avoid separation of powers.
Mr. Nathan: --But it would also create the secondary risk by having an unqualified applicant, since that is what we're talking about in the standards that we're--
Justice Souter: Well, but we... we don't know.
That's... that's the whole point.
We don't know whether the applicant is qualified.
That's why you're in court.
And the... the way, in effect, I... to... it seems to me to ensure your interest is simply to... to have an encouragement to a prompt disposition.
And if the machinery of the State cannot somehow pull itself together to give the prompt disposition, then I don't know what you've got to complain about.
Mr. Nathan: --But this Court has always presumed the State courts will honor their obligations to review these types of cases and determine if there are First Amendment issues.
Justice Souter: Oh, I'm sure the State courts will, but I've come from a State court and I... I know what... what caseloads are.
And unless there is an inducement to move quickly, the... the State courts, you know, may have obligations to other litigants and... and not move as fast as the... as the First Amendment would call for.
Mr. Nathan: But that's why in... in Colorado the rule 106 gives the court the ability to in its discretion, determine if accelerating the case is necessary.
Justice Souter: In... in which case then, if there were this kind of circuit breaker provision, the... the courts would... would have every procedural basis for honoring it.
Mr. Nathan: --But, of course, if the city doesn't bear the burden of going to court and it's the business that goes to court, it would then have every incentive to move as slowly as possible because it would automatically get a license even if it weren't--
Justice Kennedy: I just didn't... would have every incentive to?
I just didn't hear.
Mr. Nathan: --Move slowly because it would automatically get a license if a certain period of time went by even if it weren't qualified under the objective standards of the ordinance.
Justice Souter: But it would have to have filed its appeal.
Mr. Nathan: It would have to have filed its appeal, but it would have every incentive not to ask that that--
Justice Souter: Then... then simply have your circuit breaker saying if there's going to be an appeal, file the appeal within X days.
Mr. Nathan: --And--
Justice Souter: I mean, these are simply things that States can provide by... by law, it seems to me, without any great difficulty.
Mr. Nathan: --That's true, and I guess the question is... is whether the risks entailed require that they be imposed on the cities who have these types of licensing ordinances.
And we would seek to prevent the secondary effects that this Court--
Justice Souter: Well, if... if you take the position that in fact the State should move promptly here, what is the State going to lose by, in effect, a fail-safe requirement that it must?
On your theory, it's not going to be doing anything more than it ought to do in the first place.
So... so we would... we would be providing, on your theory, for the outlier case.
So what would be the... what would be the reason for complaint here?
Mr. Nathan: --Just that when the plaintiff goes to court, the business goes to court, it would have every incentive to... to try to go as slowly as possible, whereas the incentive should be, if it wants a quick decision, for it to move to expedite, to... to brief quickly and to argue quickly and ask the court for an expedited decision, and if one is not availing, to go up and ask the appellate court, under our rule 21 of the Colorado Appellate Rules, to order the court to rule quickly.
Justice Scalia: Mr. Nathan, I gather that a... I gathered from your brief that your... your principal point, or at least a principal point in this case, is your contention that this case is different from censorship cases where the judgment is left to a... a board with... with no standards as to whether a particular movie can be shown or not.
There immediate review is necessary.
Your claim here is that the matters that are determined by the administrative organ are not matters of censorship, but rather quite discernible, physical, and practical points.
What... what specifically was the basis for turning down the... the license here?
Mr. Nathan: Well, there's never been an application for the license in this case.
Justice Scalia: I see.
Well, what... what would have been... what would have been the issues if the application had been filed?
Mr. Nathan: In point of fact, except for the... its location... it's in an improper zone and it's within 500 feet of a church and day care center... Z.J. probably would have been granted the license, Your Honor.
Justice Ginsburg: But they say they're not an adult business, and that's the preliminary characterization.
I mean, they... they don't have a license.
They didn't apply for one because they said, we don't need a license.
We're not that kind of business.
Mr. Nathan: But, Your Honor, that issue was litigated fully in the district court and the district court held that not only were they an adult business, but that their arguments to the contrary were essentially frivolous.
Now, it took some doing, in terms of discovery where we had to provide photographs, videotapes, layouts, an accountant's determination of the amount of adult materials, but the district court ruled on that issue and found that they were unquestionably an adult business and even cautioned counsel about rule 11 in their claim that they weren't.
Justice Ginsburg: This is the Federal district court.
Mr. Nathan: Yes, Your Honor.
Justice Ginsburg: Is... is there no court, municipal level court, in Colorado as there was in Baltimore?
I mean, the... the reaction of Maryland to the Freedman case was to set up a proceeding in the Baltimore City court, and it had explicit time lines.
And then it provided for an expedited appeal to the Maryland Court of Appeals.
So why... I... I thought that the FW/PBS case said, we're... we're not going to follow... the... the government has to go into court because it isn't like censorship.
But the other two apply.
So why don't you just... why isn't that the solution, the one that was adopted in Freedman for... for the proceedings in court?
Mr. Nathan: Well, there's a serious question in the issues before the Colorado Supreme Court now as to whether a municipal court can handle a 106 review or whether it has to be a district court from the State.
But again, if you eliminate the... what has been called the third Freedman requirement of requiring the government to go to court, then since it... the... the business is the captain of that litigation, there's no reason to force the government to mandate a decision within a set period of time.
Justice Scalia: Do you concede that the second Freedman requirement demands that judicial review... or that... that a judicial determination be concluded?
Mr. Nathan: I do not, Your Honor.
Justice Scalia: I thought that that's the whole issue here, whether it's enough that you can promptly begin a suit or whether, in fact, what... what Freedman requires is that a suit has to be raced through to termination in these cases.
Mr. Nathan: Yes, Your Honor.
And our position is... is that the elimination of a third requirement makes it more rational to have the second requirement be prompt access and... and effective access to the courts which--
Justice Ginsburg: But everyone who complains about administrative action, adverse administrative action, has a right to promptly open the door.
So that, if you read it to just to say access, then it essentially does nothing.
Mr. Nathan: --In this case, however, and in many others, when you have clear objective standards, a quick exit from the administrative process, a record of the reasons for the denial, then access to the court is meaningful because a court can readily determine if there's a subterfuge to suppress speech through the licensing mechanism.
Justice Kennedy: And I suppose that interpreting the second requirement that way does prevent the administrative agency from delaying matters by simply delaying the issuance of its opinion.
Mr. Nathan: Exactly, Your Honor.
Justice Stevens: May I ask this general question?
I understand the standards are different, but just in terms of the procedure, if I applied for a license to run a dry cleaning establishment, would I have a different procedural set of hurdles than this litigant does?
Mr. Nathan: The... the licensing requirements in this case involve adult businesses.
Justice Stevens: Right.
Mr. Nathan: And so I'm not sure what sort of--
Justice Stevens: I know the standards are different to qualify for it, but I'm just wondering if you're denied the... the license, are you treated any differently than if I had applied for... to get into some entirely different business?
Mr. Nathan: --I don't believe so, Your Honor.
Justice Ginsburg: There's one curious feature in this and maybe you could explain it to me.
Apparently this business was denied a sales tax license and yet they were in business.
Mr. Nathan: They didn't apply for a sales tax license until 8 months after they opened, and by that time, because they had initiated litigation in the Federal district court, we had already determined that they were clearly an adult business and therefore they were denied the sales tax license because they were in an improper location, which is the only reason--
Justice Ginsburg: Can... can a business start up and... a retail business without such a license?
Mr. Nathan: --No.
That's why they were cited in court.
I'd like to reserve, if there are no further questions of me--
Argument of Douglas R. Cole
Chief Justice Rehnquist: Very well, Mr. Nathan.
Mr. Cole, well hear from you.
Mr. Cole: Mr. Chief Justice, may it please the Court:
It is neither necessary nor appropriate to require licensing schemes like Littleton's to provide prompt judicial determination.
It's not necessary because, as this Court's cases demonstrate, the type of judicial review required in licensing schemes must be correlated to the First Amendment concerns that the ordinances present.
The First Amendment risks here are far less than the risks of freewheeling censorship that were at issue in Freedman and its progeny.
The ordinance here does not license speech.
It licenses businesses.
Thus, prompt access is sufficient.
In fact, it would be inappropriate to impose a judicial deadline requirement for at least three reasons.
First, it would impede State and local efforts to control secondary effects.
Second, it would offend notions of comity and federalism by assuming that State judges will ignore their constitutional obligations to be sensitive to the First Amendment.
And finally, it would require local officials to impose time limits on those over whom they have no control.
Thus, both constitutionally and jurisprudentially, prompt access to meaningful review is all that the Constitution requires.
The Freedman decision was motivated by two concerns, neither of which is present here.
There's neither the... the problem of unbridled discretion, nor a risk of self-censorship.
Unbridled discretion occurs only in two situations where you have either the possibility of administrative delay or standardless discretion.
And as this Court has recognized in a number of cases, the latter, standardless discretion, presents unique challenges for judicial review.
It makes sense in that context to require some type of judicial deadline because essentially meaningful judicial review on an expedited basis is impossible if there's no standard to give any indication as to why the administrative decision was made.
Justice Kennedy: I... I suppose that if we're concerned, as I... as I think the courts are concerned, about protecting First Amendment rights, one thing we could do is just say that if there's any apparent delay in determination, the United States district courts under 1983 are free to... are free to intervene at once.
Mr. Cole: And... and, Your Honor, if--
Justice Kennedy: I'm not sure if that helps you or if it helps the respondent.
Mr. Cole: --Well, 1983 is, of course, always available as a vehicle for someone that's asserting that their constitutional rights have been violated.
Justice Kennedy: Well, except that I... I would think the municipalities and the States would raise questions about deferring to the State courts for determination of State law issues and so forth.
Mr. Cole: Abstention doctrines, Younger abstention, for instance, might come to play.
Here the court... or I'm sorry... the city waived any abstention argument in order to allow the 1983 case to proceed.
Potentially it could have, notwithstanding the abstention argument, but of course, there would be the issue of abstention which is one reason why prompt access to some type of State remedy is so important in... in the case if 1983 is not an effective vehicle.
Justice Scalia: Of course, I guess we'd have to have either a statute, such as the statute that requires Federal district courts to expedite criminal cases.
I'm not sure a Federal district court can both take the case and also bump it up to the top of its docket.
Can they do that, leaving... leaving behind people who have been waiting several years to be heard?
I don't know that that will work without a Federal statute.
Mr. Cole: Well, and I guess at... at core, it doesn't matter whether you go to the Federal court under 1983 or to State court.
Presumably the sensitivity of the judge to the First Amendment concerns in both cases would be the same and their willingness to move it to the front of the docket would be the same.
We look... I mean, this Court has definitely in the past shown that where State courts are not sufficiently sensitive to First Amendment concerns, for instance, in the Skokie case, the Court demonstrated that it could fashion tools to handle what it felt was undue delay in the court system.
Chief Justice Rehnquist: But we've also held that Federal courts are... should be very loathe to intervene in ongoing State proceedings.
Wait till the State proceeding is over and then you can go to Federal court.
Mr. Cole: Absolutely, and in the Skokie case, it came up through the State court system and directly into this Court rather than via a district court model.
But... but the point is as long as you have prompt access, you're going to get access to a judicial official who is going to be sensitive to First Amendment concerns and, if necessary, has all the traditional tools of equity available to provide immediate relief, TRO's, PI's.
Justice Ginsburg: What... what does prompt access mean as opposed to relaxed access?
I... I just don't understand the content of prompt access if... if access is getting into court.
You file a complaint.
Mr. Cole: Well, you need... under State systems, most State systems have some form of requirement that... that the court knows that the administrative process is over so it knows it doesn't have to defer to the administrative process anymore.
So by having a clear exit, as well as a... a vehicle that's either prescribed by rule or by statute so everybody knows the appropriate vehicle and there aren't any questions about the jurisdiction of the court to hear the matter, as well as a record that... that they can use to make a... a prompt review when it gets before them, we would contend that that meets what this Court was talking about with respect to the second prong in FW/PBS.
Chief Justice Rehnquist: Does the local ordinance provide a limit, time limit, for the administrative proceeding?
Mr. Cole: Absolutely, Your Honor.
Chief Justice Rehnquist: What is... what is that?
Mr. Cole: I believe, as it's currently drafted, it is up to about 40 days, but it could be even quicker than that.
I say up to.
There are certain periods of time within which the applicant can act within the next 10 days, and so if they act within the first day, then that would shorten the time frame even further.
Justice Kennedy: Do you think those administrative requirements are... are mandated under the Constitution when First Amendment issues are... are present?
Mr. Cole: A prompt administrative decision, yes, Your Honor.
I believe that... that comes from FW/PBS, as... as well as to the... I mean, FW/PBS's interpretation of Freedman in the context of content-neutral licensing schemes.
Justice Kennedy: Well, why would you go that step unless you're being... you just think you're forced to under our decision?
Why would you go that step and... but... but then moot the whole thing out by having a... an... a protracted judicial process?
What... what sense does that make?
Mr. Cole: Well, Your Honor, there's been no showing here that there would be a protracted judicial process.
Justice Kennedy: No, no, but I... I asked you if... if you concede that there is a requirement of expedition at the administrative process... at... at the administrative level, it then seems to me that it also follows there has to be one at the judicial level.
Mr. Cole: --Well, Your Honor, the... the question before the Court today, though, is what does Littleton's or a town like Littleton's licensing scheme need to provide.
There may be some independent constitutional obligations on State court judges to act promptly with respect to First Amendment concerns, but the question is, does that need to appear in the text of Littleton's ordinance?
Justice Kennedy: Do you concede that there are such obligations?
Mr. Cole: I concede that... that courts have an obligation under cases like Skokie to be sensitive to the time concerns that are presented by First Amendment issues.
I don't know that there's any--
Justice O'Connor: Mr. Cole, do you know whether there are any license... city licensing schemes that say if the... in the administrative proceeding it's determined that the license should issue and it is the city that's appealing, that then it has to be expedited?
On the other hand, if in the administrative proceedings, it's determined the license should not issue, then there the burden would be on the appellant applicant for the license to go forward.
Mr. Cole: --I'm not aware of any such city ordinances.
The California statute, which was passed as a result of the Ninth Circuit decision, I believe allows either the city or the applicant to proceed to court, whatever the licensing decision is.
Either the Tennessee or the... I believe it's the California one.
But... but I'm not aware of any city ordinances that do that.
The... Z.J. Gifts relies heavily at page 18 of their brief on a quote from Southeastern that says a free society prefers to punish the few who abuse rights of speech after they break the law rather than throttle them and all others beforehand.
To me, that puts a real point on the difference between the prior restraints that were at issue in Freedman and Southeastern and cases like that and the situation here.
That assumes we need to do some sort of sorting, bad speech and good speech, and we want to know should we do the sorting beforehand or after, and the Court says, not surprisingly, let's them talk and then we'll punish the ones who utter things that are not protected by the First Amendment.
Here there's no need to engage in that kind of sorting.
Any adult business has the prospect for creating the secondary effects that this Court has recognized in Renton and Young and... so it's not a matter of sorting them.
It's a matter of if you're an adult business, you need a license and that license might include requirements like where you can locate within the city.
Justice Scalia: Well, it is a matter of sorting them to the extent you have to figure out what's an adult business.
Now, you... you say that that issue is not in this case.
Maybe we don't decide very much if that issue is not in this case.
Why isn't that--
Mr. Cole: Well, Your Honor, I--
Justice Scalia: --a sorting type issue?
You claim you're not an adult business, in which case you're not even subject to this ordinance.
Mr. Cole: --Well, but if you're not subject to this ordinance, you're not going to be seeking judicial review under this ordinance, and you'll do what... what Z.J. Gifts did here, which is bring a facial challenge under the First Amendment before you've even subjected yourself to the licensing scheme.
One would assume that the judicial review that we require to be part of the licensing scheme would be to deal with those cases that come up through the licensing scheme and to which the judicial review would then apply.
If the... if the question is it's ex ante, does it even apply to me, that will be litigated in a different forum than what we're talking about here.
Justice Souter: All of which is true unless the... the city chooses to do, as it did not do here, and that is to enjoin the operation of the business in the absence of the license.
Mr. Cole: Well, and it... if they... if they seek to enjoin the business at that point, then you're right.
They could raise the constitutional defense presumably that they would have.
And at that point then--
Chief Justice Rehnquist: Thank you, Mr. Cole.
Mr. Cole: --Thank you, Your Honor.
Argument of Michael W. Gross
Chief Justice Rehnquist: Mr. Gross, we'll hear from you.
Mr. Gross: Mr. Chief Justice, and may it please the Court:
The core policy in Freedman, recognized in this Court's decision in FW/PBS, is that a decision to issue a license to present... protect the expression must be made within a brief, specified period of time because undue delay results in the unconstitutional suppression of protected speech.
Chief Justice Rehnquist: But Freedman was actual censorship and this is not that.
Mr. Gross: That's correct, Your Honor.
This doesn't involve a single film.
This involves a determination by the licensing officer, in this case especially, of the content of an entire business.
Chief Justice Rehnquist: Well, are you saying that the... the claims of the owner here are just as urgent under the First Amendment as in Freedman?
Because certainly PBS suggested they weren't.
Mr. Gross: FW/PBS did relax the third Freedman safeguard.
There's no question about that.
However, I think in the Court's analysis of... when the Court undertook that direction, the Court indicated that the license is the key to obtaining and maintaining a business.
And that's why the... the... why there's every incentive for a business to move forward with judicial review in the--
Justice O'Connor: Has there... has there ever been any proceeding here at all to determine what the issues are?
Mr. Gross: --There's been a lot of proceedings in this case, Your Honor, as Mr. Nathan indicated.
Justice O'Connor: But... but they're all on a challenge to the overall constitutionality of the... of the city ordinance?
Mr. Gross: That's not entirely accurate, Your Honor.
There... there was a nuisance case filed in the State court, in the Arapahoe County District Court, and the city in fact got an order enjoining the operation of its business.
It was brought on the basis of a zoning violation, sales tax violation, and sexual business violation.
Justice O'Connor: Is it... is it operating now, the business?
Mr. Gross: The... the business is operating now.
Justice O'Connor: On what basis?
Mr. Gross: --Well--
Justice O'Connor: I mean, happened to... to--
Mr. Gross: --With regard to that State court case, there was an order enjoining the... the operation of the business entered in September of 2001.
The business made a motion for a stay, pending appeal.
That motion was denied on December 27th of that year.
There was a contempt hearing.
The business was moved to be held in contempt.
At the contempt hearing, the trial judge in the State court, for the first time hearing the case... he found that the business was not in contempt of court.
In fact, the Federal court determined in the light most favorable to the... to the bookstore that 33 percent of the business was allocated towards regulated adult items.
The district court and State court, once he saw what was going on, there's testimony that 18 percent of the business was devoted to adult material, and the State district court made a determination that the business was not in contempt.
In fact, the injunction order in State court was later reversed in the State court of appeals in February of last year.
And so at the current time, there is no injunction order against the business.
The business is operating.
Justice Kennedy: --It... it seems to me that it's just much simpler for us to acknowledge, for the system to acknowledge that there's a strong First Amendment interest here, so expedition is important, rather than write some model ordinance.
You can go to Federal... if... if the State isn't complying with that rule, go to the Federal court.
Mr. Gross: And... and there was a facial challenge filed at the time the business was opened back in August of 1999.
They went to Federal court first.
The State did seek its remedies as a State court nuisance action and tried to shut down the business and was unsuccessful ultimately.
Justice Kennedy: I'm just not sure why that isn't adequate if a Federal judge thinks that the... the city... that the State system is delaying matters and that speech is at risk, the Federal court could issue an injunction.
Why should we write a model ordinance up here?
Mr. Gross: Well, the Federal courts are... I think, as indicated before, there are some issues of abstention, comity, and so forth, and those issues have come up quite a bit, especially if there's pending State court proceedings.
Here the... the State did go to State court.
The... you can always go to Federal court to vindicate your First Amendment rights.
And in... that's what we... what the business chose to do in this case on the facial challenge.
I think once the case gets started, once you apply for a license and your license is denied, you really need to go through the State court process.
Justice Breyer: Well, but... what... what is the problem in the case?
I mean, I... I had thought, perhaps naively, that the reason that one opinion used the word judicial access, prompt judicial access, and the other opinion used the word, prompt judicial decision, is that there really isn't any difference between the two.
Once you have prompt judicial access, the courts have loads of devices to give you a prompt decision.
And if you feel the decision isn't prompt enough, well, you can ask the appellate court to make sure you get your quick decision.
What's the problem?
Mr. Gross: Well, I think Freedman said prompt judicial review means prompt judicial determination.
I think the courts may have discretion to fashion the remedy, but again, getting the case under the State court dockets, getting--
Justice Breyer: Once you say that, the courts have discretion to fashion the remedy, that's the end of it, isn't it?
Of course, you get into court and then it's up to the judge, and if in fact the judge, as I just said, delays unreasonably, you like any other litigant have a host of judicial remedies.
So what is it?
How do you win this case once you agree to what I just said?
Mr. Gross: --Well, the core policy behind Freedman... it was enunciated in FW/PBS... is that delay could... results in unconstitutional suppression of speech.
And in fact--
Justice Breyer: We're all against delay.
I mean, I just don't... I mean, everybody is against delay.
And my question is what is it that you want in that respect that you haven't had.
Mr. Gross: --Well, in this case there was an erroneous deprivation of constitutional rights.
Justice Breyer: You mean you have not had... you've had unreasonable delay.
Mr. Gross: --Yes, and--
Justice Breyer: Aren't... isn't your client running his bookstore?
Mr. Gross: --The... the client--
Justice Breyer: Then what's the delay?
Mr. Gross: --The client... there... there's no injunction order entered in this case.
The delay is that on its face that the... the ordinance needs to provide for prompt judicial review.
Justice Breyer: Oh, that's a different matter.
You think it isn't enough, the ordinary remedies.
You want the ordinance to say in words judicial... prompt judicial review.
That's contrary, I think, to what you just said.
Justice O'Connor: Well, I thought it does say prompt judicial review in the sense of access.
Justice Breyer: Yes.
Justice O'Connor: What doesn't it say?
Mr. Gross: It provides... rule... it provides for judicial review under rule 106 of the Colorado Rules of Civil Procedure.
That process involves judicial review of the record, 90 days for the record, briefing schedules, 30 days for each side, 15 days--
Justice O'Connor: You don't like the briefing schedule.
Is that it?
Mr. Gross: --Well, the... the period of time it takes... it's a very long time.
It... generally judicial review... it's an appellate... appeal to the district court.
It takes at least a year.
Chief Justice Rehnquist: Well, a municipal... a municipality in most States can't prescribe the procedures in a State... in a State court.
Mr. Gross: That... that is correct, Your Honor.
California... the legislature did enact a statute, as referred to by the State of Ohio that--
Justice Scalia: It's... it's not even clear that the legislature can do it in some States.
Indeed, you know, I... I think there are limits to what a legislature can tell a court.
I think it can't tell a court to pump out a decision in 10 days.
You think it... you think it can do that?
Mr. Gross: --I think it can... it can... it depends on the court... on a State--
Justice Breyer: Why would you think under the Constitution that an adult bookstore has to have something written into an ordinance which... it's entitled to a fast decision.
I agree with you about that.
But why does it have to have it written in an ordinance when a person who's put in prison arbitrarily who also should have a very speedy decision is required to rely on ordinary court processes to get that speedy decision?
Mr. Gross: --Well, under the First Amendment... and this is not a... this is not directly on Freedman, censorship of a single item.
However, decisions of administrative officials... certainly administrative officials are subject to much greater pressures to censor.
Justice O'Connor: Yes, but the administrative procedures the city provides here all have these prompt deadlines.
You... and... and your business did not apply for that.
It just opened its doors apparently.
Mr. Gross: It went to court.
It did file a Federal case.
It did open its doors.
The city has been very--
Justice O'Connor: And the business knew, when it did that, that it was omitting the city review altogether, although it had been available very promptly.
So I... it's hard to get a focus on what... how... how your client has been hurt.
Mr. Gross: --The city... well, the city indicated before the business opened its doors that it perceived it to be an adult business before they even opened their doors.
They said, we've heard you're coming to town and we think you're adult business.
And so that... and then the city did deny a sales tax license on the basis that it was an adult business.
They won't define what that means.
They won't put any... any indication what those terms actually mean.
Justice Kennedy: Well, this... this goes maybe over the same ground, but let's assume that in the... in a circuit court in... in... say, in the Tenth Circuit, it's recognized that licensing restrictions that apply and... and permit requirements that apply to First Amendment materials are most sensitive.
And the... and the courts of the circuit, both the district court and the court of appeals, are... are very faithful in... in implementing... in implementing that rule.
Why do we have to have an ordinance?
Go to the Federal court and say speech is being chilled, speech is being suppressed, there's unreasonable delay.
The court says, I agree.
Mr. Gross: I... I guess--
Justice Kennedy: End of case.
Mr. Gross: --We'd have to wait an unreasonable period of time to initiate that case.
I think 37 Photographs talks about the 60-day judicial review.
Justice Kennedy: No.
The whole... no.
The whole premise of my question... maybe you're going to tell me it's hypothetical.
The whole premise is the Federal courts are open to hear claims of unreasonable delay that... that chills the expression of speech.
Mr. Gross: The Federal courts are open to that.
I... I would agree with that.
Certainly if there are State court proceedings pending, there may be issues of abstention that we talked about before.
Justice Stevens: Mr. Gross, can I ask you sort of a... a basic question that I haven't really thought through?
Should there be a different time schedule for the person who wants to operate just an ordinary bookstore that just sells textbooks for schools and... and trade books, on the one hand, and an adult bookstore on the other hand?
Would one of them be entitled to more prompt review of his license application than the other?
Mr. Gross: I... I would... yes, Your Honor.
I think under FW/PBS, the Court indicated that there was an additional burden placed upon adult bookstores and that Freedman had to be complied with.
Justice Stevens: So you think the Constitution commands more prompt treatment of an application by an adult bookstore than by an ordinary bookstore.
Mr. Gross: I... I think it... there's... you get into the issue of... of some kind of content... correlated content based restriction.
It may be based upon non-content based factors.
Justice Ginsburg: Do you need a license to open an ordinary bookstore in Littleton?
Mr. Gross: No, you don't, not a special license.
You need a sales tax license.
Justice Scalia: Well, there are other restrictions.
You... I'm sure you can't open it in the middle of a residential neighborhood, can you?
Mr. Gross: A commercial business you can't open.
Justice Ginsburg: But you don't--
Justice Scalia: --Anywhere?
Justice Ginsburg: You don't need a license.
Justice Scalia: There's no zoning?
Mr. Gross: --There's an adult zoning provision in--
Justice Scalia: Well, there's not just an adult zoning.
I assume there's a commercial zone.
Mr. Gross: --Commercial zoning.
Justice Scalia: Well, so... so they can't open it anywhere.
They have to go through a procedure.
Mr. Gross: They have... they have to go through the commercial... yes, be approved for a commercial zone and if this--
Justice Ginsburg: But what... what is the commercial other than if they... if they're going to set it up in a place where you can have businesses... in other words, there isn't the same license requirement for these two businesses.
There's a special licensing requirement for adult bookstores because of their secondary effects.
Mr. Gross: --Yes.
Justice Scalia: What do you mean a special licensing?
You mean there are special zoning requirements?
What else besides special zoning requirements?
I assume there are special zoning requirements for... I don't know... sulfur factories and... and, you know, all sorts of things.
Mr. Gross: Certainly, and slaughterhouses.
Justice Scalia: For slaughterhouses, sure.
Sure, there are.
Unknown Speaker: [Laughter]
Mr. Gross: --commercial zones, and there are... and there are residential zones.
Justice Scalia: Right.
Mr. Gross: Certainly.
Justice Scalia: Right, so I mean, this is just the city has decided that it doesn't... and... and we said it's perfectly reasonable for the city to say that, that... that we don't want too many of these and we want them in certain areas.
Mr. Gross: --And... and that was--
Justice Scalia: And it can say that about slaughterhouses.
Mr. Gross: --Certainly, and about adult bookstores.
And... and, in fact, there was challenge to the adult zoning in this case and the Tenth Circuit upheld the adult zoning, and these bookstores are limited to less than 1 percent of the area of the City of Littleton.
Justice Ginsburg: Is this bookstore now operating in a place where it isn't permitted to be under the Littleton ordinance?
Mr. Gross: --It's... the location... yes.
It's operating its... if the city says it's an adult bookstore, it's in an improper zone.
If it's not an adult bookstore--
Justice Ginsburg: And--
Justice O'Connor: --It's... I didn't hear you.
Mr. Gross: --If... if the bookstore is determined to be an adult bookstore, it's in an improper zone.
If it is not an adult bookstore, it is in a proper zone.
It's in a location which was formally occupied by a fast food restaurant on a highly--
Justice O'Connor: And you take the position that if you just sell 18 percent of the merchandise is adult, then it doesn't qualify?
Justice Ginsburg: I don't understand.
Mr. Gross: --That... that was what the Arapahoe County District Court ruled.
We... we were trying to ascertain what the term, substantially significant, means.
The city refuses to provide any definitive determination of what that means.
So we had to go to court, and that's what the court determined in that particular case.
Justice Ginsburg: Now, what I don't understand is you... you are concerned about the... the efficacy of judicial review.
You picked your forum.
You picked the Federal court rather than the State court.
Mr. Gross: Yes.
Justice Ginsburg: You got a review of that ordinance, every piece of it, for constitutionality.
I don't understand what complaint you have now about judicial review, having had judicial review in the Federal court and having had the Federal court uphold most of this ordinance.
So you've... you've had judicial review.
How... how... how are you a proper complainant about what access you might have had in the State courts if you chose to go there?
Mr. Gross: Well, we... we brought the facial challenge in the... in the Federal court.
There is... and there is continuing injury in this case.
The... the business has been cited with 2,620 violations of the licensing ordinance.
And in the event the Court... the law is declared unconstitutional, those... those violations would go away.
Each carries a $1,000 fine.
So there's potentially $2 million in fines.
Justice Ginsburg: But you... the... the unconstitutional area left is this prompt judicial review, but you've already had judicial review.
That's why I don't understand what is your current complaint.
Mr. Gross: The current complaint is it's... we brought the facial challenge on the basis that it doesn't comply with FW/PBS and Freedman.
And there was--
Justice Scalia: You think somebody else might not get prompt judicial review and that's enough to strike down the ordinance.
That's what the facial challenge is all about.
Mr. Gross: --Well, it's... yes, Your Honor.
I mean, this--
Chief Justice Rehnquist: Your real complaint... your real complaint is we granted certiorari.
Isn't that the--
Unknown Speaker: [Laughter]
Mr. Gross: --Well, we... we would... we would be happy to live with the Tenth Circuit order, for sure.
Justice Stevens: I have to confess to another problem.
As I understand part of your argument, you're contending you're not an adult bookstore, an adult establishment, aren't you?
Mr. Gross: That's correct.
Justice Stevens: So you're contending you don't have challenge... standing to challenge the ordinance.
Mr. Gross: Well, the city says we do.
But we do have... there is an injury in fact in this case because the city has initiated 2,620 license violations, up to $2 million in fines in a municipal court.
That... that's a real injury.
And, I mean, this isn't the case like or Pap's or like Waukesha.
Justice Stevens: Maybe that's because you decided to go into business without getting a license, which might have been a fairly reckless thing to do, I would think.
Mr. Gross: Well, we went to Federal court and the... the city, you know, did pursue their claims in State court.
Certainly, I mean, the... the business can't be faulted for... too much for being a business.
I mean, in the Waukesha case and in the Pap's case, those businesses were out of business.
Justice Kennedy: Is... is what you're saying that there is a reliance interest on the part of these businesses?
They should know that there is a... an efficient licensing procedure with judicial review so they can factor into their costs of... of doing business whether or not they can afford, say, 3 months of expedited litigation and that this is a... a First Amendment interest.
Mr. Gross: --That's correct, Your Honor.
The... with regard to a... an ongoing business, as opposed to an individual work of art, getting the license is key... is key to the... to the ability to maintain a business.
And so an investor, an entrepreneur, trying to start a business, hire employees, get a location, supply inventory, needs an assurance that there will be a decision within a specific period of time by a court.
This is not your run-of-the-mill administrative decision.
This... this involves the First Amendment issue based upon content of the speech, based upon this ordinance that is focused upon one class of businesses that--
Justice Kennedy: If... if the States know that the... that the penalty they suffer for not doing that is having to submit themselves to Federal court litigation where the Federal courts really sweep abstention aside and so forth because of the urgency, I guess that's maybe the decision that States should make.
Mr. Gross: --Well, I think the States... they need to... it's our position they need to expedite the judicial review, and... and the provisional license doesn't really solve the problem.
I would note that the municipal court... the municipalities do have the ability to... to enact laws, to have review in the municipal court.
In fact, last week I just went through a process where there's a requirement that review occur within 75 days of the administrative decision.
That was in Aurora, Colorado.
And that ordinance is attached to our response for the petition for rehearing in the Tenth Circuit.
Justice Scalia: You are content with the review in municipal court?
Mr. Gross: No.
Well, it depends on how it comes out.
Justice Scalia: No, I don't think so.
Mr. Gross: But... but certainly--
And we're... we may well prevail in that case, but certainly we have a right to an appeal.
In this case, we prevailed on the appeal in the court of... State court of appeals and the Tenth Circuit on this issue.
Justice Ginsburg: If the... if the municipal court was good enough in Freedman, where you had a real censorship problem, why shouldn't it be adequate, entirely adequate, for adult bookstores?
Mr. Gross: It may well be, Your Honor.
I think the... you know, in that... there may... it may be... it may well be adequate if there's an independent judicial officer as opposed to a... a licensor, you know, going back to the Printing Act of 1662, a licensor of speech of a bookseller.
And here the definition of adult bookstore is... is really dim and uncertain.
We don't know what it means.
Chief Justice Rehnquist: Yes, but... but we're not talking about censorship.
I mean, we're not talking about a licensor who says you can sell this book or you can't sell it.
Mr. Gross: We're not talking about a licensor that talks a specific book.
Chief Justice Rehnquist: Is a... when you talk about a municipal court, do you mean the municipal court, say, of the City of Littleton or a municipal court created by the State of Colorado?
Mr. Gross: --This would be the City of Littleton municipal court or the City of Aurora is the one I was referring to before.
Justice Ginsburg: Would... would you explain one puzzling thing?
Mr. Nathan told us that the district court said, of course, they're an adult bookstore.
That's so clear.
On that basic characterization whether you are or are not an adult business, the Federal court, according to Mr. Nathan, said you were an adult business.
Is that over and done with now so what you're left with is you are an adult business and you have to get a license?
Mr. Gross: On that day?
I mean, that was the Federal court's decision.
The Tenth Circuit did affirm the decision, in little bit less harsh terms than the district court, but certainly the decision was affirmed.
That is the final determination in this part of the case.
Justice Ginsburg: And yet, you're still operating in a place where you can't be if you are an adult business.
Mr. Gross: --Well, in response to that court order, the business has changed its operation quite a bit.
This is not a... a theater.
This is not an arcade.
This is not a cabaret with live entertainment.
This is a store that has a certain percentage of its stock and trade in regulated adult material.
It reduced that number.
It created a separate section.
It's tried to comply with the city.
It is willing to comply even further as long as--
Justice O'Connor: But that issue is not before us and isn't open.
That's been decided, hasn't it?
Mr. Gross: --Yes, yes.
Justice O'Connor: So we can take this case and decide it on the basis this... that it is an adult bookstore we're talking about--
Mr. Gross: Yes.
Justice O'Connor: --that must get a license.
Mr. Gross: Yes.
Justice O'Connor: So we don't have to get tangled up in this other business, do we?
Mr. Gross: No, we don't.
The Court does not.
I would note that, however, the... the city says that there's no discretion in this case, that it's purely a ministerial decision.
And to the extent that there's inherent vagueness in the definition of substantial and significant, it indicates that a licensing official can, in fact, exercise judgment and exercise some discretion--
Justice O'Connor: But that issue is not here.
Mr. Gross: --That... that's... it's correct.
Justice O'Connor: I thought we were just... I thought we took the case to decide whether the requirement for prompt judicial review means prompt judicial decision at the end of the day or just prompt access to the review.
Mr. Gross: --And that--
Justice O'Connor: There's a split of authority on that point.
Mr. Gross: --Yes.
And that is--
Justice O'Connor: And that's what we took the case to decide.
Mr. Gross: --Yes.
Justice O'Connor: Not whether there's substantial discretion or not.
Mr. Gross: No.
No, that's... I'm just trying to counter their argument, but certainly it really doesn't matter if there's discretion of not.
It's our position that even if there's not discretion, there needs to be a prompt judicial determination.
The licensors are subject to many pressures.
They're... they're humans.
It's a human situation and as the Tenth Circuit recognized, these businesses are very unpopular.
These businesses can be subject to a... the discretion in... in the decision.
And there needs to be a prompt--
Justice Scalia: I'm not... I'm not sure whether that... that helps or hurts your case.
What... what I find really peculiar is that if, you know, some homeowner has another child, need... needs to put in a new bedroom in the home, that person has to go through the normal zoning procedures and get... you know, get... get approval from the... from the electrician licensing board and everything else and then go through judicial review.
Likewise, if a new hospital seeks to locate, they... they have to go through zoning and all the other approvals and then through normal judicial review.
And... and what you're arguing is that somehow adult bookstores are... are so significant to the... to the life of the community, because of the First Amendment, that... that we have to give them special treatment.
You know, I... I have to wait 2 years before I can put in my bedroom, but the adult bookstore goes right to the head of the line.
That seems to be very strange.
And if... if that's where we've arrived at, we... we ought to retrace our steps perhaps.
Mr. Gross: --Well, I would... those are laws of general application, and certainly an adult bookstore, if it went through the normal process, would have to go through the same process as any other bookstore or any other commercial business or... or the residential person adding an addition.
In this case they've created a special burden upon adult bookstores.
The city... if the adult bookstore opens or any bookstore opens and doesn't follow along with these... with these particular--
Chief Justice Rehnquist: But the... the only burden is as to location, is it not?
Mr. Gross: --There's additional burdens in terms of licensing fees, inspections, applications.
There's additional burdens for hours of operation, for... cabarets and arcades have additional restrictions, regulations that don't apply to this store.
Chief Justice Rehnquist: But those... those really don't raise First Amendment concerns, do they, the fact that you might be limited in your hours, you couldn't go past 2:00 p.m.... 2:00 a.m.?
Mr. Gross: Arguably they... they raise First Amendment concerns in terms of time, place, and manner arguments, and I think there may... there's a case out of the Ninth Circuit.
It may be before this Court on a cert petition with regard to an hours operation.
But they arguably raise that there are additional burdens.
Just like in FW/PBS, there was an additional burden placed upon these stores on... by virtue of the content of the material that is sold and distributed from the bookstore.
Now, there's been many proceedings in State court in this case and that's... that's what we've talked about.
The court... in fact, there was an injunction issued and the State has the power to enforce laws of health, safety, and welfare against the bookstore.
Justice Ginsburg: How about the sales tax?
You're still operating without a sales tax license, but you're selling things.
Mr. Gross: We... we have worked out an agreement with the city where they do pay the sales tax.
They did not grant the license, but we have managed to resolve that issue.
The store has been collecting sales tax and has been paying the sales tax.
But the city... and at the current time, the city has not moved to follow up on their... their nuisance case in State court to enjoin for not having a sales tax license.
Of course, that... that is based upon the... whether the definition of a store is adult or not adult.
But the city retains the power to... to enforce the law through nuisance cases, just like any other case, in time... with regard to health, safety, and welfare of businesses.
Justice Ginsburg: Not enforce the licensing law.
Enforce the secondary... go after the secondary effects nuisance laws.
Mr. Gross: They could enforce those too.
The license... the zoning law would be a secondary effects law, and there... and at this point there is no injunction in State court.
The city is not proceeding on that case at this point, in which there's an injunction issued based upon the State court order... excuse me... the Federal court order.
That injunction was reversed on appeal in the State court.
There's been litigation on all different fronts in this case, in State court, district court, municipal court, as well as the Federal court.
Of course, we're here on the Federal case.
Justice Ginsburg: It sounds like you've got a lot of access.
Unknown Speaker: [Laughter]
Mr. Gross: We... it's... you can file a lawsuit.
I mean, there's... certainly you can... you have a right to file a lawsuit everywhere you can, and we've... we've... there has been lawsuits filed by both the city.
And the city had access on the... on the injunction case.
There was a stay denied, in fact, after... after the injunction was issued.
I mean, this business has been fighting to stay open.
It's been fighting and has stayed... in fact, stayed open unlike the case in Waukesha and Pap's, you know.
I mean, it's clear municipalities have taken every opportunity to try to regulate these businesses, try to put in every obstruction possible with regard to getting these businesses to... to be closed down.
Now, the issue... the answer to the question before this Court is that the essential constitutional requirement... and that was identified in... in the FW/PBS case as an essential requirement... is that prompt judicial determine does actually mean prompt judicial... does mean prompt judicial determination without an actual--
Justice O'Connor: It didn't say it in... it said prompt judicial review, whatever that meant.
Mr. Gross: --That's correct, based upon Freedman.
And if... if we take it back to Freedman, you read Freedman and Freedman does... did provide a right of access, a right of appeal and talked about judicial review interchangeably with prompt judicial determination, disposition, and so forth.
Now, without an actual judicial disposition, the administrative officials will have the power to shut down an entire business, not simply a single work of art, but it will be an entire business.
If there's an error... if there's an error with regard to... to what is... what the licensing official says, that's why prompt judicial review is so important in this case.
The erroneous deprivation of the speech rights will... will cause irreparable injury, and that's the core policy behind the Freedman case.
Now, in the absence of prompt judicial review, the... the status quote will be silenced.
In this case, the bookstore went to court and get... got the access, but... and the trial court will be understandably reluctant to alter the status quo of silence.
And that is essentially the default position of any trial court.
So without an explicit statement from this court with regard to the second prong of Freedman, it's not... I think it's difficult to assume that a State court with its heavy docket will actually provide a prompt decision.
Justice Ginsburg: Is there any experience in that regard?
This ordinance has been on the books for a time.
Have the State courts been dragging their heels?
Mr. Gross: Well, yes, this law was enacted in 1993.
It's been amended many times.
In this case, the State nuisance action was filed in January of 2000, and the district court issued its order in September of 2001, and that order was reversed in February of 2003.
That's the normal course of... of events in the State court litigation.
The city did not move for a preliminary injunction.
They did move for contempt.
It took a few months to get the contempt heard, and once the contempt was heard, it came out in favor of the bookstore.
So that's... that's the experience in this case.
This is the only adult business that's ever existed in the City of Littleton.
There's never been one before.
There were apparently a couple of massage parlors about 10 years ago.
And the city has put--
Rebuttal of J. Andrew Nathan
Chief Justice Rehnquist: Thank you, Mr. Gross.
Mr. Nathan, you have 2 minutes remaining.
Mr. Nathan: Unless there are any questions, I have... I feel no need for rebuttal.
Chief Justice Rehnquist: Thank you, Mr. Nathan.
The case is submitted.
Argument of Speaker
Mr. Nathan: The opinion of the Court in No. 02-1609, The City of Littleton, Colorado versus Z.J. Gifts will be announced by Justice Breyer.
Argument of Justice Breyer
Mr. Breyer: To understand the issue in this case you have to go back to a case called Freedman versus Maryland, and that involved the filmmakers submitting films to a Censorship Board which could refuse to have the film shown.
And in that case, the Court held that the First Amendment requires certain procedural safeguards.
They include strict time limits, leading to a fast administrative decision, certain burden of proof rules and what is relevant here a “procedure” that will “assure a prompt final judicial decision.”
Now, if you can remember that, it was the issue.
Then in a later case called FW/PBS versus Dallas, the Court considered Freedman’s application to a city's licensing scheme for adult bookstore.
The court split in three different opinions but the lead plurality said that some of the safeguards in Freedman but not all of them have to apply.
And particularly relevant here, the lead opinion wrote any such scheme must make available the possibility of prompt judicial review in the event the license is erroneously denied.
Now, that different phrasing led to a different care to this case.
An adult bookstore in Littleton, Colorado has brought the present case challenging the city’s adult bookstore licensing scheme on its fate.
We have to ask two questions: first, do the words in the two opinions I have mentioned prompt judicial review, co they just refer to prompt access to the courts or do the words also mean a prompt judicial decision?
And then the second question is does the Colorado system for judicial review satisfy whatever requirement there is there?
Our answer to the first question is that the requirement is a requirement for more than a prompt access to the judicial process.
It also means a prompt judicial decision, and it is the decision that has to be rendered without undue delay.
As for the second, we modify any contrary implication to the contrary in the earlier cases and we conclude that Colorado’s judicial review system does meet the requirement, at least in this facial challenge.
We have several reasons, the most importants are, that Colorado has the same kind of review rules that most states have and those rules give judges enough power to prevent any undue delay in reaching their decision, and then second, there is no reason at all here to doubt that they would be willing to exercise the power in order to avoid any unconstitutional suppression of protected speech, and if they did, and if there were special cases of problems, federal remedies are available.
And third, Freedman concerned of pure censorship, an unlicensed film could not be shown, but an adult bookstore licensing typically does not concern that threat, at least not as long as there are enough licensed adult bookstores around.
So, there is no reason based on the face of Littleton’s ordinances to fear that there would not be enough such outlets.
The ordinance sets forth specific nondiscretionary criteria, they are easy to apply, and the applications deciding whether they were applied correctly the judges should be able to do it pretty quickly.
So, for these and for other reasons which we set forth in our opinion, Colorado’s ordinary judicial review rules are adequate at least for purposes of the facial challenge.
If people who are denied licenses in the future think it is wrong, was not quick enough, they can raise the special problems of undue delay in an individual case.
The Tenth Circuit’s contrary conclusion is reversed.
Justice Stevens has filed an opinion concurring in part and concurring in the judgment; Justice Scalia has filed an opinion concurring in the judgment; Justice Souter has filed an opinion concurring in part and concurring in the judgment in which Justice Kennedy has joined.