City of Littleton v. Z.J. Gifts D-4, L.L.C. - Opinion Announcement

Argument of Speaker

Mr. Speaker: 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.