stating that “[t]he guarantee of freedom of speech afforded by the First Amendment is abridged whenever the government makes enjoyment of protected speech contingent upon obtaining permission from government officials to engage in its exercise under circumstances that permit government officials unfettered discretion to grant or deny the permission.”
How later courts described this case
- stating that “[t]he guarantee of freedom of speech afforded by the First Amendment is abridged whenever the government makes enjoyment of protected speech contingent upon obtaining permission from government officials to engage in its exercise under circumstances that permit government officials unfettered discretion to grant or deny the permission.”
- ruling that “courts must permit” facial challenge when there is significant risk of chilling First Amendment speech because chill “ ‘can be effectively alleviated only through a facial challenge’ ” (quoting City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988))
- finding a facial challenge to an ordinance restricting speech appropriate where a plaintiff alleges the ordinance does not contain “specific standards to guide the decisionmaker” or “appropriate procedural safeguards to ensure a prompt resolution”
- holding that arguments not discussed in appellate briefs are deemed abandoned
Written by the judges who cited it.
Later courts went against this
Overruled — as noted by a later court
Plaintiffs’ reliance on a passage from 11126 Baltimore Blvd, Inc v Prince George’s Co, 58 F3d 988, 995 (CA 4, 1995), is misplaced, as the United States Court of Appeals for the Fourth Circuit has subsequently stated that that particular passage is no longer good law after Thomas.
in partmedium confidenceAbrogated on other grounds by City of Littleton v. Z. J. Gifts D-4, L. L. C., 541 U.S. 774 (2004)
58 F.3d 988, 994-95 (4th Cir. 1995) abrogated on other grounds by City of Littleton v. Z.J. Gifts D-4 L.L.C., 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004).
The opinion
NIEMEYER, Circuit Judge,
concurring in part and dissenting in part:
In this case and the related case of Chesapeake B & M, Inc. v. Harford County, Md., 58 F.3d 1005 , both decided today, the majority opinions have stricken down as unconstitutional ordinances enacted by two Maryland counties to regulate the secondary effects of adult bookstores whose business is to sell sexually explicit materials and to provide sexually oriented entertainment. These ordinances do not directly prohibit the sale of sexually explicit material; rather they prohibit any “adult bookstore,” as defined in each ordinance, from conducting business without first obtaining a license (a “permit” in Harford County and a “special exception” in Prince George’s County).
The ordinance in this case — in contradistinction to that in Chesapeake B & M — does confer some discretion upon county executives in determining whether to approve a special exception to operate an adult bookstore. 1 The county’s District Council will grant a “special exception” permitting the operation of an adult bookstore only if it finds that the bookstore “meets the standards” set forth in § 27-904(b) & (c). Those standards consist of 13 factors relating to the potential effect of the bookstore on the land and its surroundings.
The Prince George’s County ordinance is a zoning regulation which seeks to impose restrictions on the operation of an adult bookstore in order “to lessen or control the adverse secondary effects of such stores on their surrounding neighborhoods,” § 27-901(b)(1), and “to prevent access to such stores by children,” § 27-901(b)(3). The ordinance does not prohibit outright the sale of sexually explicit material; rather it prohibits the sale of such material by an adult bookstore where the aggregation of such sales tends to produce the adverse secondary effects that the county seeks to ameliorate.
Because some substantive discretion is conferred upon Prince George’s County officials by this ordinance, distinguishing it from the Harford County ordinance which is the subject of our related decision in Chesapeake B & M, I am inclined to agree that the safeguards described in FW/PBS, Inc. v. Dallas, 493 U.S. 215 , 110 S.Ct. 596 , 107 L.Ed.2d 603 (1990), should be applied in this case. I also concur in the majority’s conclusion that the 150-day time frame for administrative decisionmaking may be too long and may confer too much discretion in respect to the length of the decisionmaking process. See FW/PBS, 493 U.S. at 227 , 110 S.Ct. at 605 . But I disagree with the majority’s conclusion that the Prince George’s County ordinance is unconstitutional under FW/PBS because it does not provide Warwick Books with prompt access to judicial review. 2 On the same day that the county denies an application for a special exception, the applicant may obtain access to the courts of Maryland. I conclude that this is all that is required by the FW/PBS safeguard that expeditious review be available. Contrary to the position taken by the majority, I would interpret that safeguard as requiring only that exit from the executive branch (the administrative permit system) be prompt and that access to the judicial system be immediately available. Since the nature of the safeguard is access to a court, and not the rendering of any given decision of the court, I cannot subscribe to the position that the procedural safeguard requires prompt completion of the judicial review any more than it requires a particular result. At least three other circuits share *1003 this view. See Grand Brittain, Inc. v. City of Amarillo, 27 F.3d 1068 (5th Cir.1994); TK’s Video v. Denton County, 24 F.3d 705 (5th Cir.1994); Graff v. Chicago, 9 F.3d 1309 (7th Cir.1993) (en banc); Jews for Jesus v. Massachusetts Bay Trans. Author., 984 F.2d 1319 (1st Cir.1993). Cf. O’Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir.1990) (declining to apply FW/PBS safeguards where it found adult entertainment licensing scheme imposed no restraint and where plaintiff theater was closed because of significant number of acts of public indecency).
In any event, in this case the Maryland Rules provide for a prompt judicial decision.
I
Beginning with the conclusion that “expeditious judicial review of [the executive’s] decision must be available,” see FW/PBS, 493 U.S. at 227 , 110 S.Ct. at 606 , the majority opinion errs in interpreting the nature of that safeguard to mean that “expeditious judicial review” requires a prompt “judicial ruling” or “judicial decision.” Op. at 1001. That additional requirement of securing a prompt judicial decision is not, I submit, imposed by FW/PBS, is unnecessary in the absence of direct prior restraint of speech, and misconstrues the essence of the safeguard.
First, it must be recognized that FW/PBS provides no Court opinion addressing the issue. Justice O’Connor’s opinion, on which the majority relies, was joined only by Justices Stevens and Kennedy. While Justices Brennan, Marshall, and Blackmun joined in a separate opinion urging greater protection than that articulated in Justice O’Connor’s opinion, they did not join in her opinion. 3 493 U.S. at 238 , 110 S.Ct. at 611 . Consequently, the majority can logically claim no greater safeguard than that imposed in Justice O’Connor’s opinion.
As Justice O’Connor concluded in FW/PBS, a licensing ordinance designed to address the secondary effects of adult oriented businesses need not provide the full procedural safeguards required of a direct censorship law. 493 U.S. at 228 , 110 S.Ct. at 606 . Such a licensing law impinges only incidentally upon protected speech, because it is aimed at the secondary effects of such speech rather than its content. As Justice O’Connor noted in FW/PBS, the licensor need not bear the burden of going to court or the burden of proof once in court. See 493 U.S. at 227-230 , 110 S.Ct. at 605-07 . Moreover, an ordinance of the type under consideration there must only provide the “possibility of prompt judicial review,” 493 U.S. at 228 , 110 S.Ct. at 606 , or “an avenue for prompt judicial review,” id. at 229 , 110 S.Ct. at 606 . Thus, I conclude from Justice O’Connor’s express language that an adult bookstore licensing law that does not impose direct censorship of materials need only provide for prompt access to judicial review and need not guarantee a prompt completion of the judicial review process.
Since the decision in FW/PBS, at least three courts of appeals which have considered the appropriate standard to be applied with respect to judicial review of license denials implicating free speech have reached the same conclusion. See Graff v. Chicago, 9 F.3d 1309, 1324-25 (7th Cir.1993) (en banc) (holding that availability of state’s common law procedure for seeking a writ of certiorari in court to review an administrative agency decision regarding the licensing of sidewalk newsstands is sufficient to meet the FW/ PBS’s “prompt judicial review” requirement); TK’s Video v. Denton County, 24 F.3d 705, 709 (5th Cir.1994) (holding that FW/PBS’s requirement of “prompt judicial review” is satisfied by “access [to] the courts within a brief period,” i.e., by giving the aggrieved party 30 days to appeal to court); Grand Brittain, Inc. v. City of Amarillo, Texas, 27 F.3d 1068, 1070 (5th Cir.1994) (“We have interpreted [FW/PBS’s “prompt judicial review”] language to require only access to the courts within a specified brief period.”). See also Jews for Jesus v. Massachusetts Bay Transportation Authority, 984 F.2d 1319, 1327 (1st Cir.1993) (applying FW/ *1004 PBS’s standard to regulations of expressive activity in subway station, and holding that “prompt judicial review” is provided where applicant denied license may appeal denial in court and is granted hearing); cf. O’Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir.1990) (declining to apply any of the Freedman procedural safeguards (as recast in FW/PBS) to the First Amendment analysis of adult entertainment licensing scheme on the ground that such scheme did not involve prior restraints and was based instead on licensee’s failure to prevent patrons’ engagement in public sex acts in theater).
Moreover, I believe that the nature of the safeguard — assurance of the availability of prompt judicial review — cannot meaningfully be interpreted to include the rendering of a court’s decision. The essence of the safeguard is the review and not the result. When an executive official is given discretionary authority that can have the effect of censoring protected speech, the executive’s decision must be reviewable by the judicial branch, and the promptness of instigating that judicial review is the requisite safeguard. Since there are no external cheeks on the judiciary’s review, the scope of the safeguard of necessity ends with access to the judicial branch. If the judiciary agrees that protected speech has been improperly censored, it can act within hours. On the other hand, if it concludes that the would-be censor acted properly and did not unconstitutionally suppress speech, then its decision ends the matter. While the judiciary may not get it right, its review, and not the result it reaches, defines the limit of the safeguard.
Thus, I would conclude that prompt judicial review as a safeguard means prompt exit from the executive branch and immediate entry into the judicial branch, and I believe that the better reading of FW/PBS supports this conclusion.
II
Even though I am satisfied that the Prince George’s County ordinance meets the requirement of FW/PBS of providing prompt access to the courts, I note nevertheless that the Maryland Rules provide ample mechanisms for completing judicial review expeditiously should the need arise. Warwick Books is entitled to appeal to the Prince George’s County Circuit Court on the very day it receives the county’s decision, and it need not wait until the end of the 30-day period. Md. Rule 7-203. The record must be filed by the county within 60 days, but the rule provides expressly thaf’the court may shorten or extend the time for transmittal of the record.” Md. Rule 7-206(d). Within 30 days after notification that the record has been filed, Warwick Books must file a memorandum. Md. Rule 7-207(a). The county has 30 days thereafter to file its answering memorandum, id., and Warwick Books then has 15 days to reply. Id. Pursuant to a special Prince George’s County Circuit Court administrative order, oral argument must be held within five days of the filing of the reply brief, and a decision must be rendered five days thereafter.
In addition to these specific procedural and administrative court rules, the Maryland Rules provide generally that the times specified by the rules “requir[ing] or allow[ing] an act to be done” may be shortened on the motion of any party and for cause shown. Md. Rule 1-204. Moreover, the Maryland Rules provide that a person may apply for an ex parte injunction or an interlocutory injunction at any time. The procedures for obtaining an ex parte injunction assure a most expedited schedule. See, e.g., Md. Rule BB72. These rules are repeatedly used to achieve the most prompt review and appeal of a broad array of time-sensitive issues, such as election disputes, death penalty cases, and public health matters.
There can be, I submit, no persuasive argument that prompt judicial review is not available through the ordinance, the administrative order, and through Maryland’s rules of civil procedure. Accordingly, I dissent from that conclusion reached by the majority.
I am authorized to report that Judge Russell and Judge Widener join in this opinion.
. Adult bookstores are defined as commercial establishments which have 10% or more of the value of their stock in sexually explicit materials. Section 27 — 902(b)(1).
. Justice O’Connor's opinion in FW/PBS held, in striking down the Dallas ordinance as unconstitutional, that (1) any restraint on speech prior to judicial review can be only for a brief period during which the status quo is maintained and (2) "expeditious judicial review of [the executive’s] decision must be available." 493 U.S. at 227 , 110 S.Ct. at 606 .
. These justices urged application of the safeguards articulated in Freedman v. Maryland, 380 U.S. 51 , 85 S.Ct. 734 , 13 L.Ed.2d 649 (1965), a position not shared by a majority of the Court. 493 U.S. at 239 , 110 S.Ct. at 611 .