OPINION OF THE COURT
CITY OF LITTLETON V. Z. J. GIFTS D-4, L. L. C.
541 U. S. ____ (2004)
SUPREME COURT OF THE UNITED STATES
NO. 02-1609
CITY OF LITTLETON, COLORADO, PETITIONER
v.
Z. J. GIFTS D–4, L. L. C., a limited liability company, dba
CHRISTAL’S
on writ of certiorari to the united states court of
appeals for the tenth circuit
[June 7, 2004]
Justice Breyer delivered the
opinion of the Court.
In this case we examine a city’s
“adult business” licensing ordinance to determine whether it meets
the First Amendment’s requirement that such a licensing scheme
assure prompt judicial review of an administrative decision denying
a license. See
FW/PBS, Inc. v.
Dallas,
493 U. S. 215 (1990);
cf.
Freedman v.
Maryland,
380 U. S. 51 (1965). We
conclude that the ordinance before us, considered on its face, is
consistent with the First Amendment’s demands.
I
Littleton, Colorado, has enacted
an “adult business” ordinance that requires an “adult bookstore,
adult novelty store or adult video store” to have an “adult
business license.” Littleton City Code §§3–14–2, 3–14–4 (2003),
App. to Brief for Petitioner 13a–20a, 23a. The ordinance defines
“adult business”; it requires an applicant to provide certain basic
information about the business; it insists upon compliance with
local “adult business” (and other) zoning rules; it lists eight
specific circumstances the presence of which requires the city to
deny a license; and it sets forth time limits (typically amounting
to about 40 days) within which city officials must reach a final
licensing decision. §§3–14–2, 3–14–3, 3–14–5, 3–14–7, 3–14–8,
id., at 13a–30a. The ordinance adds that the final
decision may be “appealed to the [state] district court pursuant to
Colorado rules of civil procedure 106(a)(4).” §3–14–8(B)(3),
id., at 30a.
In 1999, the respondent, a
company called Z. J. Gifts D–4, L. L. C.
(hereinafter ZJ), opened a store that sells “adult books” in a
place not zoned for adult businesses. Compare Tr. of Oral Arg. 13
(store “within 500 feet of a church and day care center”) with
§3–14–3(B), App. to Brief for Petitioner 21a (forbidding adult
businesses at such locations). Instead of applying for an adult
business license, ZJ brought this lawsuit attacking Littleton’s
ordinance as unconstitutional on its face. The Federal District
Court rejected ZJ’s claims; but on appeal the Court of Appeals for
the Tenth Circuit accepted two of them, 311 F. 3d 1220, 1224
(2002). The court held that Colorado law “does not assure that [the
city’s] license decisions will be given expedited [judicial]
review”; hence it does not assure the “prompt final judicial
decision” that the Constitution demands.
Id., at
1238. It also held unconstitutional another ordinance provision
(not now before us) on the ground that it threatened lengthy
administrative delay—a problem that the city believes it has cured
by amending the ordinance. Compare
id., at 1233–1234, with
§3–14–7, App. to Brief for Petitioner 27a–28a, and Brief for
Petitioner 3. Throughout these proceedings, ZJ’s store has
continued to operate.
The city has asked this Court to review the
Tenth Circuit’s “judicial review” determination, and we granted
certiorari in light of lower court uncertainty on this issue.
Compare,
e.g., 311 F. 3d, at 1238 (First Amendment
requires prompt judicial
determination of license denial);
Nightclubs, Inc. v.
Paducah, 202 F. 3d 884,
892–893 (CA6 2000) (same);
Baby Tam & Co. v.
Las
Vegas, 154 F. 3d 1097, 1101–1102 (CA9 1998) (same);
11126 Baltimore Blvd., Inc. v.
Prince George’s
County, 58 F. 3d 988, 998–1001 (CA4 1995) (en banc)
(same), with
Boss Capital, Inc. v.
Casselberry,
187 F. 3d 1251, 1256–1257 (CA11 1999) (Constitution requires
only prompt
access to courts);
TK’s Video, Inc.
v.
Denton County, 24 F. 3d 705, 709 (CA5 1994)
(same); see also
Thomas v.
Chicago Park Dist.,
534 U. S. 316,
325–326 (2002) (noting a Circuit split);
City News &
Novelty, Inc. v.
Waukesha,
531 U. S. 278, 281
(2001) (same).
II
The city of Littleton’s claims
rest essentially upon two arguments. First, this Court, in applying
the First Amendment’s procedural requirements to an “adult
business” licensing scheme in
FW/PBS, found that the First
Amendment required such a scheme to provide an applicant with
“
prompt access” to judicial review of an administrative
denial of the license, but that the First Amendment did not require
assurance of a “prompt judicial
determination” of the
applicant’s legal claim. Second, in any event, Colorado law
satisfies any “prompt judicial determination” requirement. We
reject the first argument, but we accept the second.
A
The city’s claim that its
licensing scheme need not provide a “prompt judicial determination”
of an applicant’s legal claim rests upon its reading of two of this
Court’s cases,
Freedman and
FW/PBS. In
Freedman, the Court considered the First Amendment’s
application to a “motion picture censorship statute”—a statute that
required an “ ‘owner or lessee’ ” of a film, prior to
exhibiting a film, to submit the film to the Maryland State Board
of Censors and obtain its approval. 380 U. S., at 52, and n. 1
(quoting Maryland statute). It said, “a noncriminal process which
requires the prior submission of a film to a censor avoids
constitutional infirmity only if it takes place under procedural
safeguards designed to obviate the dangers of a censorship system.”
Id., at 58. The Court added that those safeguards must
include (1) strict time limits leading to a speedy administrative
decision and minimizing any “prior restraint”-type effects, (2)
burden of proof rules favoring speech, and (3) (using language
relevant here) a “procedure” that will “
assure a prompt final
judicial decision, to minimize the deterrent effect of an
interim and possibly erroneous denial of a license.”
Id.,
at 58–59 (emphasis added).
In
FW/PBS, the Court
considered the First Amendment’s application to a city ordinance
that “regulates sexually oriented businesses through a scheme
incorporating zoning, licensing, and inspections.” 493 U. S., at
220–221. A Court majority held that the ordinance violated the
First Amendment because it did not impose strict administrative
time limits of the kind described in
Freedman. In doing
so, three Members of the Court wrote that “the full procedural
protections set forth in
Freedman are not required,” but
that nonetheless such a licensing scheme must comply with
Freedman’s “core policy”—including (1) strict
administrative time limits and (2) (using language somewhat
different from
Freedman’s) “
the possibility of prompt
judicial review in the event that the license is erroneously
denied.” 493 U. S., at 228 (opinion of O’Connor, J.) (emphasis
added). Three other Members of the Court wrote that all
Freedman’s safeguards should apply, including
Freedman’s requirement that “a prompt judicial
determination must be available.” 493 U. S., at 239 (Brennan, J.,
concurring in judgment). Three Members of the Court wrote in
dissent that
Freedman’s requirements did not apply at all.
See 493 U. S., at 244–245 (White, J., joined by Rehnquist,
C. J., concurring in part and dissenting in part);
id., at 250 (Scalia, J., concurring in part and dissenting
in part).
The city points to the differing linguistic
descriptions of the “judicial review” requirement set forth in
these opinions. It concedes that
Freedman, in listing
constitutionally necessary “safeguards,” spoke of the need to
assure a “prompt final judicial decision.” 380 U. S., at 59. But it
adds that Justice O’Connor’s controlling plurality opinion in
FW/PBS did not use the word “decision,” instead speaking
only of the “
possibility of prompt judicial review.” 493
U. S.
, at 228 (emphasis added); see also
id., at
229 (“an avenue for prompt judicial review”);
id., at 230
(“availability of prompt judicial review”).
This
difference in language between Freedman and
FW/PBS, says the city, makes a major difference: The First
Amendment, as applied to an “adult business” licensing scheme,
demands only an assurance of speedy access to the courts, not an
assurance of a speedy court decision.
In our view, however, the city’s
argument makes too much of too little. While Justice O’Connor’s
FW/PBS plurality opinion makes clear that only
Freedman’s “core” requirements apply in the context of
“adult business” licensing schemes, it does not purport radically
to alter the nature of those “core” requirements. To the contrary,
the opinion, immediately prior to its reference to the “judicial
review” safeguard, says:
“The core policy underlying
Freedman is that the license for a First
Amendment-protected business must be issued within a reasonable
period of time, because undue delay results in the unconstitutional
suppression of protected speech. Thus, the first two
[Freedman] safeguards are essential … .” 493 U. S.,
at 228.
These words, pointing out that
Freedman’s “judicial review” safeguard is meant to prevent
“undue delay,” 493 U. S., at 228, include judicial, as
well as administrative, delay. A delay in issuing a
judicial decision, no less than a delay in obtaining access to a
court, can prevent a license from being “issued within a reasonable
period of time.” Ibid. Nothing in the opinion suggests the
contrary. Thus we read that opinion’s reference to “prompt judicial
review,” together with the similar reference in Justice Brennan’s
separate opinion (joined by two other Justices), see id.,
at 239, as encompassing a prompt judicial decision. And we reject
the city’s arguments to the contrary.
B
We find the second
argument more convincing. In effect that argument concedes the
constitutional importance of assuring a “prompt” judicial decision.
It concedes as well that the Court, illustrating what it meant by
“prompt” in Freedman, there set forth a “model” that
involved a “hearing one day after joinder of issue” and a “decision
within two days after termination of the hearing.” 380 U. S., at
60. But the city says that here the First Amendment nonetheless
does not require it to impose 2- or 3-day time limits; the First
Amendment does not require special “adult business” judicial review
rules; and the First Amendment does not insist that Littleton write
detailed judicial review rules into the ordinance itself. In sum,
Colorado’s ordinary “judicial review” rules offer adequate
assurance, not only that access to the courts can be
promptly obtained, but also that a judicial decision will
be promptly forthcoming.
Littleton, in effect,
argues that we should modify FW/PBS, withdrawing its
implication that Freedman’s special judicial review rules
apply in this case. And we accept that argument. In our view,
Colorado’s ordinary judicial review procedures suffice as long as
the courts remain sensitive to the need to prevent First Amendment
harms and administer those procedures accordingly. And whether the
courts do so is a matter normally fit for case-by-case
determination rather than a facial challenge. We reach this
conclusion for several reasons.
First, ordinary court procedural
rules and practices, in Colorado as elsewhere, provide reviewing
courts with judicial tools sufficient to avoid delay-related First
Amendment harm. Indeed, where necessary, courts may arrange their
schedules to “accelerate” proceedings. Colo. Rule Civ. Proc.
106(a)(4)(VIII) (2003). And higher courts may quickly review
adverse lower court decisions. See, e.g., Goebel
v. Colorado Dept. of Institutions, 764 P. 2d 785, 792
(Colo. 1988) (en banc) (granting “expedited review”).
Second, we have no reason to doubt
the willingness of Colorado’s judges to exercise these powers
wisely so as to avoid serious threats of delay-induced First
Amendment harm. We presume that courts are aware of the
constitutional need to avoid “undue delay result[ing] in the
unconstitutional suppression of protected speech.” FW/PBS,
supra, at 228; see also, e.g., Schlesinger v.
Councilman, 420 U. S. 738, 756
(1975). There is no evidence before us of any special Colorado
court-related problem in this respect. And were there some such
problems, federal remedies would provide an additional safety
valve. See Rev. Stat. §1979, 42 U. S. C. §1983.
Third, the typical First Amendment
harm at issue here differs from that at issue in Freedman,
diminishing the need in the typical case for special procedural
rules imposing special 2- or 3-day decisionmaking time limits.
Freedman considered a Maryland statute that created a
Board of Censors, which had to decide whether a film was
“ ‘pornographic,’ ” tended to “ ‘debase or corrupt
morals,’ ” and lacked “ ‘whatever other merits.’ ”
380 U. S., at 52–53, n. 2 (quoting Maryland statute). If so,
it denied the permit and the film could not be shown. Thus, in
Freedman, the Court considered a scheme with rather
subjective standards and where a denial likely meant complete
censorship.
In contrast, the ordinance at
issue here does not seek to censor material. And its
licensing scheme applies reasonably objective, nondiscretionary
criteria unrelated to the content of the expressive materials that
an adult business may sell or display. The ordinance says that an
adult business license “shall” be denied if the applicant
(1) is underage; (2) provides false information; (3) has within the
prior year had an adult business license revoked or suspended; (4)
has operated an adult business determined to be a state law “public
nuisance” within the prior year; (5) (if a corporation) is not
authorized to do business in the State; (6) has not timely paid
taxes, fees, fines, or penalties; (7) has not obtained a sales tax
license (for which zoning compliance is required, see Tr. of Oral
Arg. 16–17); or (8) has been convicted of certain crimes within the
prior five years. §3–14–8(A), App. to Brief for Petitioner 28a–29a
(emphasis added).
These objective criteria are
simple enough to apply and their application simple enough to
review that their use is unlikely in practice to suppress totally
the presence of any specific item of adult material in the
Littleton community. Some license applicants will satisfy the
criteria even if others do not; hence the community will likely
contain outlets that sell protected adult material. A supplier of
that material should be able to find outlets; a potential buyer
should be able to find a seller. Nor should zoning requirements
suppress that material, for a constitutional zoning system seeks to
determine where, not whether, protected adult
material can be sold. See Renton v. Playtime Theatres,
Inc., 475 U. S.
41, 46 (1986). The upshot is that Littleton’s “adult business”
licensing scheme does “not present the grave ‘dangers of a
censorship system.’ ” FW/PBS, 493 U. S., at 228
(opinion of O’Connor, J.) (quoting Freedman,
supra, at 58). And the simple objective nature of the
licensing criteria means that in the ordinary case, judicial
review, too, should prove simple, hence expeditious. Where that is
not so—where, for example, censorship of material, as well as delay
in opening an additional outlet, is improperly threatened—the
courts are able to act to prevent that harm.
Fourth, nothing in FW/PBS
or in Freedman requires a city or a State to place
judicial review safeguards all in the city ordinance that sets
forth a licensing scheme. Freedman itself said: “How or
whether Maryland is to incorporate the required procedural
safeguards in the statutory scheme is, of course, for the State to
decide.” 380 U. S., at 60. This statement is not surprising given
the fact that many cities and towns lack the state-law legal
authority to impose deadlines on state courts.
These four sets of considerations,
taken together, indicate that Colorado’s ordinary rules of judicial
review are adequate—at least for purposes of this facial challenge
to the ordinance. Where (as here and as in FW/PBS) the
regulation simply conditions the operation of an adult business on
compliance with neutral and nondiscretionary criteria, cf.
post, at 1–2 (Stevens, J., concurring in part and
concurring in judgment), and does not seek to censor content, an
adult business is not entitled to an unusually speedy judicial
decision of the Freedman type. Colorado’s rules provide
for a flexible system of review in which judges can reach a
decision promptly in the ordinary case, while using their judicial
power to prevent significant harm to First Amendment interests
where circumstances require. Of course, those denied licenses in
the future remain free to raise special problems of undue delay in
individual cases as the ordinance is applied.
For these reasons, the judgment of
the Tenth Circuit is
Reversed.
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