Petitioners Brief — FW/PBS, Inc. v. City of Dallas

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In The

Supreme Court of the United States

October Term, 1988

M.J.R., IN. c., et al.,

Petitioners,

vs.

CITY OF DALLAS, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF PETITIONERS

M.J.R., INC., et al.

ee Se eee eee OTe

> _—s SS «aT

Joun H. Weston*

G. RANDALL GARROU

Catuy E. Crosson

Weston & SARNO

433 N. Camden Drive, Suite 900

Beverly Hills, CA 90210

(213) 550-7460

RicHarpD L. WILSON

902 Lee Road, Suite 30-450

Orlando, FL 32810-5585

(407) 648-9129

Attorneys for Petitioners

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

QUESTIONS PRESENTED

Is The License Requirement of Dallas City Code

§ 41A-4(a) Facially Unconstitutional As An

Impermissible Prior Restraint Because It Lacks

Adequate Procedural Safeguards Againsi Cen-

sorship By Delay As Required by Freedman v.

Maryland, 380 U.S. 51 (1965), And Numerous

Subsequent Decisions Of This Court?

In Providing For License Denial And Revocation

On The Basis Of Prior Speech Offenses, Does The

Dallas Ordinance Impose A Classic Prior

Restraint Of The Type Prohibited As Facially

Unconstitutional Under The Rule Of Near v. Min-

nesota, 283 U.S. 697 (1931)?

In Providing For License Denial And Revocation

On The Basis Of Various Non-Speech Violations,

Does The Dallas Ordinance Impose A Prior

Restraint Which Cannot Withstand Strict

Scrutiny?

LIST OF PARTIES

PETITIONERS

There were three groups of Appellants in the consoli-

dated case in the Court of Appeals. Petitioners herein are

listed in Group I, and all other Appellants in Group II.

M.J.R., Inc.; Tempo Tamers, Inc.; S.B. LaBare, Inc.;

Allen & Burch, Inc.; Southern Belles Partnership, Inc.; D.

Burch, Inc.; Deja Vu, Inc.; Corporation Lex, Inc.; and S.B.

Youngbloods, Inc.

Il.

FW/PBS, Inc.; DSB, Inc.; Lone Scar Multi Theatres,

Inc.; Bi-Ti Enterprises, Inc.; Gattie Corporation; J.R.E.

Enterprises; Entertainment Unlimited; Charles E. Carlock;

Beverly K. VanDusen; Bill Slaten, Jr.; Calvin Berry, III;

Saujay Patel; Rudolph Fernandez; and Dallas Motel

Association.

RESPONDENTS

The following parties were Appellees in the Court of

Appeals; The City of Dallas, Texas; A. Starke Taylor,

Mayor; and Billy Prince, Chief of Police.

There are no entities to report or list pursuant to this

Court’s Rule 28.1.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............500cceeeeeees i

LEE Ge I oes vec ccccccccccccccccccccececess ii

TABLE OF CONTENTS ..........00cceeeeeeeeenees iii

TABLE OF AUTHORITIES ..............:00eeeeeees v

OPINIONS BELOW...........6 0600 c cece eee eeeeees 1

PGs ce scccccccccccncccncccescevcseseces 1

CONSTITUTIONAL AND STATUTORY PROVI-

EASES Ter Peer e ere Torey TTT TTT TTT Te 2

STATEMENT OF THE CASE..............00e00000s 2

SUMMARY OF ARGUMENT................-00005: 4

py et | BPPPPPPOTTTITITITTTTITITITI TT TTT Tee 9

I. THE LICENSE REQUIREMENT OF DALLAS

CITY CODE § 41A-4(a) IS UNCONSTITUTIONAL

ON ITS FACE AS AN IMPERMISSIBLE PRIOR

RESTRAINT BECAUSE IT LACKS ADEQUATE

PROCEDURAL SAFEGUARDS AGAINST CEN-

SORSHIP BY DELAY AS REQUIRED BY FREED-

MAN v. MARYLAND, 380 U.S. 51 (1965) AND

NUMEROUS SUBSEQUENT DECISIONS OF

TEED QORIED 2. cccccccccccerccvccccesccccceces 9

A. The Court Of Ap Erred In Applying The

Deferential Standard Of Review Applicable

To Time, Place And Manner Restrictions

Rather Than The Strict Scrutiny red Of

All First Amendment Licensing Laws By

Freedman v. Maryland.............0..-00000: 9

Il.

Ill.

IV.

TABLE OF CONTENTS - Continued

Page

B. The Dallas Ordinance Lacks Vir-

tually Ev ural Safeguard Which

Is Mandated By The First Amendment...

IN PROVIDING FOR LICENSE DENIAL AND

REVOCATION ON THE BASIS OF PRIOR

SPEECH OFFENSES, THE DALLAS ORDI-

NANCE IMPOSES A CLASSIC PRIOR

RESTRAINT OF THE TYPE PROHIBITED AS

FACIALLY UNCONSTITUTIONAL UNDER

THE RULE OF NEAR V. MINNESOTA, 283 U.S.

LICENSE DENIAL, SUSPENSION AND

REVOCATION ON THE BASIS OF NON-

SPEECH VIOLATIONS ALSO REPRESENT

PRIOR RESTRAINTS WHICH CANNOT

WITHSTAND STRICT SCRUTINY AND ARE

THEREFORE INVALID UNDER THE FIRST

AMENDMENT ............000ccceeeeeeeeees

THE DALLAS LICENSING REQUIREMENT IS

SO RIDDLED WITH UNCONSTITUTIONAL

FEATURES THAT IT MUST BE STRICKEN IN

SEP PMNS eee ccccccccscescbevcsosecocces

SPURNED Se weccccpccvecesesenscecsscccccccoes

TABLE OF AUTHORITIES

Page

FrpERAL Cases

Arcara v. Cloud Books, Inc.,

GB Be Sic ce cece ccseccccscccccccce 35, 36

Arkansas Writers’ Project v. Ragland,

GE eevee ccccseccccccccccccccene 34

Avon 42nd Street Corp. v. Myerson,

352 FSupp. 994 (S.D.N.Y. 1972) ............2eeeee: 29

Bantam Books, Inc. v. Sullivan,

cb acadscccccccccescccccs 11, 23, 31

Bayside Enterprises, Inc. v. Carson,

470 FSupp. 1140 (M.D.Fla. 1979)................+. 29

Blount v. Rizzi,

sans coekvaacescccccsccceusesess 15

Brockett v. Spokane Arcades, Inc.,

EE Gb asoctccccccccscccceces 9, 28, 41

_ Brockett v. Spokane Arcades, Inc.,

he kcecceccceescccesescesbess 14

Buckley v. Valeo,

incu veccccccccennccesestoepenss 26

Cantwell v. Connecticut,

EE 11

Carroll v. Princess Anne,

chew ecccccccvcascccsscccsccess 11

Chulchian v. City of Indianapolis,

477 FSupp. 128 (S.D.Ind. 1979) ..............2205. 29

Chulchian v. City of Indianapolis,

633 F.2d 27 Orn a wke dies senencescecwes 29

City of Lakewood v. Plain Dealer Publishing Co.,

ee fee —_§ (| arr passim

City of Paducah v. Investment Entertainment,

1 F.2d 463 (6th Cir. 1986).............25c eee eees 29

TABLE OF AUTHORITIES - Continued

Page

Cohen v. City of Daleville, Alabama,

695 F.Supp. 1168 (M.D.Ala. 1988) ..............+.. 29

Cornflower Entertainment, Inc. v. Salt Lake City Corp.,

485 FSupp. 777 (D. Utah 1980)..............++-. 29, 30

Dumas v. City of Dallas,

648 FSupp. 1061 (N.D.Tex. 1986).............++-. 25, 28

Entertainment Concepts, Inc. III v. Maciejewski,

631 F.2d 497 (7th Cir. 1980) ....... 2... c cece eee eens 29

Fernandes v. Limmer,

663 F.2d 619 (Sth Cir. 1981) ............ 7, 29, 37, 38, 39

First National Bank of Boston v. Bellotti,

ee aca dcccvecsvccdccccceccccesecs 26

Fort Books v. Indiana,

__ US. __, 109 S.Ct. 916 (1989) ...........--0 0s 26

Freedman v. Maryland,

BED WEA BE GRRE oc ccc sccccsccccccccccccccces passim

ety Theaters, Inc. v. City of Miami,

19 F.2d 1550 (11th Cir. 1983)...............55. 29, 30

Gelling v. Texas,

I ED occcccccccccccccscccccvcceccess 11

Genusa v. City of Peoria,

619 F.2d 1203 (7th Cir. 1980)............... 29, 38, 39

Hague v. C.1.0.,

Ne eee tc eenewceecs 11

Huffman v. Pursue, Ltd.,

Se RR IED ca ciscccocescccccvcccccevcceces 28

International Soc. for Krishna Consciousness v. Eaves,

601 F.2d 809 (Sth Cir. 1979)................ 29, 38, 39

Interstate Circuit, Inc. v. City of epee

390 U.S. 676 (1968) ...... 6. ccc cece cece eee eens 11, 43

]-R Distributors, Inc. v. Eikenberry,

725 F.2d 482 (9th Cir. 1984).............. patenseta 28

_—

vii

TABLE OF AUTHORITIES - Continued

Page

Joseph Bu , Inc. v. Wilson,

Ne 5, 11, 26

Kin Books v. Brown,

3 ic ice che véescabaeddedee 24

Kunz v. New York,

cde ctabsebenell 11

Largent v. Texas,

ees... Jo. tbbosbbutonaee 11

Lo-Ji Sales, Inc. v. New York,

st... cc cccbiistébosdeden 45

Lovell v. City of a

303 U.S. a 10, 17, 30, 43

Marks v. City of Newport, Ky.,

344 FSupp. 675 (E.D.Ky. 1972) ............0ceeeees 29

Marshall v. Barlow’s, Inc.,

TT a 45

Minneapolis Star & Tribune v. Minnesota

Commissioner of Revenue,

Tn... oe ceuscocccbes 22, 32, 33

Murdock v. Pennsylvania,

en. nk wsoebecceevedees 11

Natco Theatres Inc. v. Ratner,

463 FSupp. 1124 (S.D.N.Y. 1979) ...........22000es 29

National Socialist Party v. Village of Skokie,

Nee es is cebonvoces 14, 20

Near v. Minnesota ex rel. Olson,

EE passim

Nebraska Press Association v. Stuart,

ee ss i cco ecccvebeous 23

New York Times Co. v. Sullivan,

ns oc ccccccesed 26

New York Times Co. v. United States,

HS 10, 23, 31, 37

viii

TABLE OF AUTHORITIES - Continued

Page

Nihiser v. Sendak,

405 FSupp. 482 (N.D.Ind. 1974)............0000005 28

—— Bookmark Corp. v. Schrunk,

321 FSupp. 639 (D.Oregon 1970)..............0055 29

Organization For a Better Austin v. Keefe,

2 U.S. 415, 419 (1971)...... Meee eG edt ose sees 11, 31

Pollitt v. Connick,

596 F.Supp. 261 (E.D.La. 1984)............ oAcesees 28

Riley v. National Federation of the Blind |

of North Carolina,

__.:;U.S. __, 108 S.Ct. 2667 (1988) ...... 6, 14, 15, 16

Saia v. New York,

ED bc dccccsavedabececsSectoccences 11

San Juan Liquors v. Consol. City of Jacksonville,

480 F6upp. 151 (M.D.Fla. 1979)..........6.00e ees 29

Schad v. Borough of Mt. Ephraim,

Echt rtnbencsncussoceccccccevesees 24

Schneider v. State,

EE bc Gnebocctsccccccsccccccusesens 11

Shuttlesworth v. City of Birmingham,

SPO US. 167 CIOS) 2 er tees. 10, 11, 12, 43 |

Southeastern Promotions Ltd. v. Conrad,

Gy GS I EEOED cc ccc cccccccveccccccess 14, 25, 31

Speight v. Slaton,

as, case sovcncdetieccesecuccets 28

Speiser v. Randall,

ees dc cksccccavecsesovesccesecees 5

Staub v. City of Baxley,

ED cc pcoccccccvesccstesstecedeos 11

Teitel Film Corp. v. Cusack,

CUR aucbecvesccdesccsocces 5, 14, 19

Times Film Corp. v. City of Chicago,

GARE UE Loe cdccssécdcosevccescsse: 10

ee eee ee ee eee ee ee eee Eee eee ii

TABLE OF AUTHORITIES - Continued

United States v. Thirty-Seven Photographs,

Se MED a cba scedvrciecsccscccccccscvees BO

Universal Amusement Co., Inc. v. Vance,

587 F.2d 159 (5th Cir. en banc 1978) .... 6, 28, 29, 31

Vance v. Universal Amusement Co., Inc.,

CEE ce snccvcercreccvcccciccces passim

Washington v. Davis,

GD WA BP GIT nce ccc ccc cccccccccvesccees 24

Young v. American Mini Theaters, Inc.,

GF ED ois S bree cc ccc ccccccccvcscveves 33

Yuclan Enterprises Inc. v. Arre,

488 F.Supp. 820 (D.Hawaii 1980)...............56. 29

State Court Cases

Alexander v. City of St. Paul,

303 Minn. 201, 227 N.W.2d 370 (Minn. 1975)...... 29

City of Delevan v. Thomas,

31 Ill.App.3d 630, 334 N.E.2d 190 (1975).......... 29

City of Minot v. Central Ave. News, Inc.,

308 N.W.2d 851 {N_D. 1981)........... eee eeeeeeees 28

City of Seattle v. Bit.aer,

81 Wash.2d 747, 505 P.2d 126 (1973)............+5- 29

Commonwealth ex rel. Davis v. Van Emberg,

Be Be FE I, BOP occ ccc cccccccccccccccces 28

General Corp. v. Sweeton,

320 So.2d 668 (Ala. 1975) ...... 66... c cece cece eens 28

Giarrusso v. D’Iberville Gallery,

295 So.2d 891 (La.App. 1974) ...........ce ee eeeeee 28

Gulf States Theaters of Louisiana v. Richardson,

287 So.2d 480 (La. 1974) ........ cece cece eee eees 28

Hamar Theatres Inc. v. City of Newark,

150 N.J.Super. 14, 374 A.2d 502 (1977) ............ 29

TABLE OF AUTHORITIES - Coniinued

Page

Kansas v. A Motion Picture Entitled “The Bet”,

219 Kan. 64, 547 P.2d 760 (1976) ...........0.00ue 28

Kuhns v. Santa Cruz Co., Bd. Be d p’rs.,

128 Cal.App.3d 369, 181 Cal.Rptr. 1(1982)......... 29

Mitchem v. State ex rel. Schaub,

Be Ie I FS BE cece cc ccccccccccccccccccs 22

New Rivieria Arts Theatre v. Davis,

219 Tenn. 652, 412 S.W.2d 890 (1967).............. 28

Parish of Jefferson v. u Landing Ltd., Inc.,

250 So.2d 158 (La.1977)...... i 28

People v. ].W. Productions

413 N.YS.2d 552 (N.Y.C.Cr.Ct. 1979)... 2... .....64.. 29

People ex rel. Busch v. Projection Room Theater,

17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600

lt eee ME en ok in eis Geebeesnceseeye 28

People v. Sequoia Books,

165 Il. App.3d 143, 518 N.E.2d 775 (Ill.App.1988) .... 28

Perrine v. oe Court,

5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648

Ne na eee ebelees 29

Sanders v. State,

231 Ga. 608, 203 S.E.2d 153 (1974) ................ 28

Society to Oppose Pornography, Inc. v. Thevis,

255 So.2d 876 (La.App. 1972) ........... 6. eee e eens 28

State ex rel. Blee v. Mohney Enterprises,

289 N.E.2d 519 (Ind.App.1973) ......... 6... .e eens 28

State ex rel. Ewing v. “Without a Stitch”,

307 N.E.2d 911 (Ohio 1974)... .. 2... 6... cee eens 28

State ex rel. Field v. Hess,

540 P.2d 1165 (Okla. 1975)... 2.6... ccc cece eee 28

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

United States Constitution

First Amendment..............0 6.6 c cece eeeees passim

Fourth Amendment...............0 6.5.6 :0 cee eenenee 46

Fourteenth Amendment.................0.000eeeees 2

ORDINANCES

Dallas City Code

in echnehnnssesdvtassecnneescessadvedes chun 2

tik ocewhn acu s dondmnceeneavaséetenninn 2, 19

ED dite cntiod eK WER bhd 0400 640% 6k MaReSReR eS 43

aoe cae bas Guan canetigeed 9, 17, 21, 41, 46

EES Eo ay eds Sr ei 18

as 56 on oe ce béeuats teehee damn cake 44

ten ws. egecevesshes . su <ebedveceeun 42, 44

Ee i cas occosundetcvewveenundéeedl 44

ch ks st scones soecesehtasesacane 43, 44

i das) concctetetscovtcsenestesneannl 42

A 66 Ck dé ences neeteece seéenneennl 40, 45

an ks cn ceccevehisadeseeseedseunen 34

§ 41A-5(a)(10)(A)(ee). . 2... ccc cece eee 23

IED en cccccecccessoscecesscotesees 23

Nee dl wane 23, 44

OME Cheba seéenedes ceeseees codesuechecnet 45

chan weedteedcepsevetessesenene hil 45

Dicks. kebednbebaes doebecnensiceste. samen 43

xii

TABLE OF AUTHORITIES - Continued

Page

Pn dcsaceesbbosutsesdbucededeveesesed 42, 44

| Pree rrr Tri Titti. Tt 4, 45

ck, caiie ena cen et abenchaatenl 34, 42

i tbncn ncccescnaghincecsddaveaveseoessut’ 42

PP onccecceccctessébocsccevesesescoess 34, 45

ci cuas whecaatansdeduobiul 23, 34

ED occcvecsccccccesscess -escesscotece 23, 34

EL. pon coehecenncbocuneessacweees 42, 44

ape apereromrs. 2 19

ee a cahene Oke canal 16

a fT aes Lae annie 9

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Pi ebiass cqbeeescccedoncecesséscvceosedéscenel 21

EEE cds Silom coducétnevesiccodenvcesecndosente 21

No. 87-2051

In The

Supreme Court of the United States

October Term, 1988

M.J.R., INC., et al.,

Petitioners,

vs.

CITY OF DALLAS, et al.,

Respondents.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

BRIEF OF PETITIONERS

M.J.R., INC., et al.

OPINIONS BELOW

Petitioners adopt the discussion of the Opinions

Below set forth in the opening brief of petitioners FW/

PBS, et al., in No. 87-2012, previously filed with this

Court.

JURISDICTION

Petitioners adopt the discussion of Jurisdiction pre-

sented in the opening brief of petitioners FW/PBS, et al.,

except to point out that petitioners herein filed their

petition for certiorari on June 13, 1988, and review was

granted on the first two Questions Presented in this

petition.

—+

CONSTITUTIONAL AND STATUTORY PROVISIONS

Petitioners adopt the Constitutional and Statutory

Provisions presented in the opening brief of petitioners

FW/PBS, et al., as supplemented by the following addi-

tional provisions of the Revised Code of Civil and Crimi-

nal Ordinances of the City of Dallas, Texas (hereinafter

“Dallas City Code” or “D.C.C.”):

1. DCC. §§ 2-95 and 2-96 (defining powers and

procedures of Dallas’ Permit and License Appeal Board)

are set forth at Joint Appendix (J.A.) 38-39.

—+-

STATEMENT OF THE CASE

Petitioners adopt the Statement Of The Case set forth

in the opening brief of petitioners FW/PBS, et al., except

as modified or supplemented below.

Petitioners herein all operate businesses defined by

§ 41A-2(3) of the Dallas City Code as “adult cabarets.”

The dancing featured at petitioners’ adult cabarets con-

sists of non-obscene performances whic), though sexu-

ally oriented, constitute presumptively protected

“speech” within the meaning of the First and Fourteenth

Amendments to the United States Constitution. Only con-

senting © iults are allowed admission to petitioners’

business« ..

On July 15, 1986 a complaint for declaratory and

injunctive relief against enforcement of Chapter 41A was

filed by some of these petitioners in the Northern District

of Texas. On July 25, 1986 an amended complaint was

filed on behalf of all these petitioners.

On August 4, 1986, the petitioners’ complaint was

consolidated under a single case number with similar

complaints filed by the petitioners in FW/PBS, Inc., et al.

v. City of Dallas, et al. (No. 87-2012) and Calvin Berry, et al.

v. City of Dallas, et al. (No. 88-49). Thereafter, the three

cases proceeded under a single case number in both of

the courts below. In order to minimize their respective

legal costs, counsel for petitioners in No. 87-2012 (FW/

PBS, Inc. v. Dallas) agreed to do the primary briefing of

the licensing issues in this case at both of the lower court

levels. In turn, counsel for M.J.R., et al., agreed to do the

primary legal work with respect to the zoning issues

raised by the consolidated complaints.

Petitioners further supplement the statement of the

case presented in No. 87-2012 by pointing out that the

opening brief of appellant FW/PBS, Inc. filed in the Court

of Appeals challenged the licensing requirement of Chap-

ter 41A on a wide variety of grounds, including the claim

that it constituted a prior restraint, inter alia, because it

allowed “unconstitutionally broad discretion to licensing

officials” and also because the inspection requirements of

§ 41A-7 are unconstitutional. Violation of those inspection

requirements constitutes a ground for both the denial and

suspension of a sexually oriented business license (see

§§ 41A-5(a)(9) and 41A-9(1), respectively) and, if commit-

ted twice within a year, constitutes ground for revocation

of such a license (see § 41A-10(a)).

In upholding the ordinance, the panel’s majority con-

sidered and rejected both of the grounds of challenge

noted above, as well as numerous others.

SUMMARY OF ARGUMENT

Chapter 41A of the Dallas City Code, requiring a

special license for all “sexually oriented businesses,” is

one of the most onerous licensing laws ever imposed on

businesses engaged in First Amendment activity. In

essence, this ordinance’s complex and burdensome regu-

lations allow for the censorship of an entire area of offi-

cially disapproved, though constitutionally protected,

speech.

Although this law requires a license as a prerequisite

to exercising fundamental rights of freedom of speech

and press, the Court of Appeals analyzed its constitu-

tionality under an unprecedented deferential standard of

review rather than utilizing the settled principle that

“[a]ny system of prior restraint . . . ‘comes to this Court

bearing a heavy presumption against its constitutional

validity.’ ” Vance v. Universal Amusemen: Co., Inc., 445 U.S.

308, 316, n.13 (1980) and cases there cited. The Gourt of

Appeals fundamentally erred by confusing laws which

merely burden speech (e.g., laws imposing taxes or restric-

tive zoning requirements) with laws which absolutely bar

speech, i.e., prior restraints.

Because the denial of a license constitutes an absolute

prior restraint on all further expression, this Court has

always reserved its most exacting scrutiny for any law

requiring a license to engage in expression, sexually ori-

ented or otherwise. See, e.g., Freedman v. Maryland, 380

U.S. 51 (1965); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495

(1952); Teitel Film Corp. v. Cusack, 390 U.S. 139 (1968);

Lakewood v. Plain Dealer Publishing Co., 486 U.S. __, 108

S.Ct. 2138 (1988)).

A constant principle which illuminates this Court’s

First Amendment decisions is that regulations of pro-

tected expression must use “sensitive tools”' in order to

remove from the public domain only that speech which is

proven to be without constitutional protection. However,

rather than using precise tools and focusing on particular

items of expression, Dallas has followed the convenient

but constitionally intolerable path of attempting to

restrain all future speech by a blunderbuss approach

which establishes a wide variety of overbroad or discre-

tionary grounds justifying the denial of a license — a most

virulent and effective tool for prior restraint.

The first and overarching defect affecting this entire

ordinance is that it imposes the prior restraint of a license

requirement without any of the procedural safeguards

which ths Court has found necessary to insure that judi-

cial review will not be “too little or too late.” See, e.g.,

Freedman v. Maryland, supra, 380 U.S. at 57. Although the

statutory scheme is so complex that it provides the Chief

of Police with a virtually endless list of available reasons

for potentially denying a license, it fails to guarantee ‘, xt

one who has been denied a license, or whose license

) Speiser v. Randall, 357 J.S. 513, 525 (1958).

application has not been promptly acted upon, can obtain

prompt judicial review within a specified brief period

after an application is filed. The ordinance also lacks the

essential procedural safeguard most recently confirmed

by this Court in Riley v. National Feaeration of the Blind of

North Carolina, __ U.S. ___, 108 S.Ct. 2667 (1988), that an

administrative official denying a license to engage in

expression must have the burdens of initiating judicial

review and justifying the denial. The need for these

important procedural safeguards is heightened where, as

here: (1) a special license is required for those engaged in

a type of protected expression toward which government

is frequently hostile; and (2) the ordinance provides a

nearly endless list of potential bases for the denial of such

a license.

However, even aside from its Freedman deficiencies,

this licensing scheme is riddled with unconstitutional

provisions which require its facial invalidation. First, city

officials may Ceny or revoke a license upon proof that the

licensee, the applicant, or one who resides with the appli-

cant has committed a single obscenity violation. In

upholding this provision, the Court of Appeals violated

not only the clear prohibition of this Court’s holding in

Near v. Minnesota, supra, but also the unanimous holding

of its own en banc court in Universal Amusement Co., Inc. v.

Vance, 587 F.2d 159 (Sth Cir. en banc 1978), aff'd. on other

grounds, 445 U.S. 308 (1980) (holding that a Texas nui-

sance statute would be unconstitutional if construed to

allow the padlocking of theaters which iiad exhibited any

films adjudicated to be obscene), as well as the parallel

holdings of dozens of other state and lower federal

courts.

Other provisions of the challenged legislation permit

the denial or revocation of a license where the licensee,

the applicant or one who merely resides with the appli-

cant, has been convicted of certain specified non-speech

offenses. In sustaining these disqualification criteria, the

Court of Appeals required the City to demonstrate no

more than a rational basis. Yet, strict scrutiny is manda-

ted by this Court’s prior decisions because licensure

under the ordinance is a prerequisite to engaging in any

speech, rather than a mere burden on the exercise of

speech. The City has not demonstrated and cannot dem-

onstrate that its disqualification criteria meet that

demanding standard of review. As the Court of Appeals

stated in Fernandes v. Limmer, 663 F.2d 619, 630 (Sth Cir.

1981): “Persons with prior criminal records are not First

Amendment outcasts.” “Punishment for criminal behav-

ior must be government’s response to an abuse of the

privilege [of freedom of speech]; prospective restraints

are unconstitutional.” Id. at 628.

The ordinance also establishes criteria for denial,

nonrenewal or revocation of a license which confer

impermissibly broad discretion on the Chief of Police, in

violation of an unbroken string of cases in this Court

holding that discretionary laws licensing speech are

unconstitutional per se. See e.g., Lakewood v. Plain Dealer,

supra, and cases there cited. These provisions include,

inter alia: (1) allowing the Chief to suspend or deny a

license if, in the Chief’s sole gpinion, the applicant has

“demonstrated that he is unable to operate . . . a sexually

oriented business in a peaceful and law-abiding manner

... "3 (2) the chief has discretion to suspend a license if

he is of the opinion that the licensee or an employee has

“engaged in excessive use” of alcohol while on the prem-

ises; (3) the Chief of Police also has discretion to deny a

license if, in his opinion, the applicant has “failed to

provide information ‘reasonably necessary’ for issuance

of the license”; and (4) under other sections, the Chief has

unfettered discretion to turn down a request for renewal

of a license or for reinstatement of a revoked license after

all the bases for any prior denial or revocation have been

corrected.

Other provisions of the ordinance provide that a

license can be denied if the licensee has not submitted to

warrantless searches of its premises by any of five differ-

ent administrative agencies including the health depart-

ment, the fire department, the housing and neighborhood

services department, the building inspection department

and the police department.

The ordinance also authorizes the denial of a license

if any of a variety of administrative agencies have found

any minor building, health or fire code violations but

then precludes reapplication for a license long after the

basis for the original problem has been eliminated.

In sum, the ordinance establishes a licensing require-

ment with disqualification criteria so limitless, and with ey

so many discretionary and overbroad provisions, that a

hostile administrative official could impose an absolute

prior restraint against any applicant incurring his or her

displeasure, and al! under a scheme which fails to guar-

antee that judicial review will be anything other than

“too little or too late.”

Petitinners respectfully submit that the licensing

scheme is so rife with constitutional difficulties that it

neither can nor should be salvaged by any feat of judicial

construction. In short, the collective overbreadth is so

substantial that a declaration of facial invalidity of the

licensing requirement of § 41A-4(a) is warranted. See, e.g.,

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, n 12

(1985).

For all these reasons, this Court should strike Dallas’

sexually oriented business licensing law on its face.

ARGUMENT

THE LICENSE REQUIREMENT OF DALLAS CITY

CODE § 41A-4(a) IS UNCONSTITUTIONAL ON

ITS FACE AS AN IMPERMISSIBLE PRIOR

RESTRAINT BECAUSE IT LACKS ADEQUATE

PROCEDURAL SAFEGUARDS AGAINST CEN-

SORSHIP BY DELAY AS REQUIRED BY FREED-

MAN v. MARYLAND, 380 U.S. 51 (1965) AND

NUMEROUS SUBSEQUENT DECISIONS OF THIS

COURT.

A. The Court Of Appeals Erred In Applying The Def-

erential Standard Of Review Applicable To Time,

Place And Manner Restrictions Rather Than The

Strict Scrutiny Required Of All First Amendment

Licensing Laws By Freedman v. Maryland.

Petitioners below stressed that the entire sexually

oriented business licensing scheme was facially uncon-

stitutional because it lacked the procedural safeguards of

Freedman v. Maryland, 380 U.S. 51 (1965). However, the

panel majority rejected this argument, asserting that this

-_ a te Soham, —o oe oo "7 ee ————

licensing law should be analyzed under the deferential

standard of review applicable to time, place and manner

restrictions rather than the strict scrutiny which this

Court has always applied to any law requiring a license

to engage in speech activity. The following history of the

Freedman line of cases will demonstrate the clear error of

the panel majority’s holding.

In Lovell v. City of Griffin, 303 U.S. 444, 451-52 (1938),

this Court recognized that “(t]he struggle for the freedom

of the press was primarily directed against the power of the

licensor.” (Emphasis added.)

“{Tlhe liberty of the press became initially a right to

publish ‘without a license what formerly could be

published only with one.’ While this freedom from

previous restraint upon publication cannot be

regarded as exhausting the guaranty of liberty, the

prevention of that restraint was a leading purpose in

the adoption of the constitutional provision.” 303

U.S. at 451-452 (some emphases’ added, some in

original).

In Shuttlesworth v. City of Birmingham, 394 US. 147,

150-151 (1969), this Court referred to “the prior restraint

of a license,” recognizing that all laws subjecting the

exercise of First Amendment freedoms to a prior license

requirement act as prior restraints. Although the mere

fact that licensing requirements constitute prior restraints

does not make them per se unconstitutional,” nonetheless,

in a long line of decisions implementing the Framer’s

basic hostility to laws licensing speech, this Court has

2 See, e.g., Times Film Corp. v. City of Chicago, 365 U.S. 43

(1961).

repeatedly stricken the overwhelming majority of such

laws, applying 2 heightened or “strict” standard of

serutiny.®

This Court’s exacting scrutiny of laws licensing

speech is consistent with another line of its cases holding

that “any system of prior restraint, however, ‘comes to

this Court bearing a heavy presumption against its con,

stitutional validity.’ Bantam Books, Inc. v. Sullivan, 372 U.S.

at 70; New York Times Co. v. United States, 403 U.S. 713, 714

(1971); Organization For a Better Austin v. Keefe, 402 U.S.

415, 419 (1971); Carroll v. Princess Anne, 393 U.S. 175, 181

3 See, e.g., Hague v. C.1.0., 307 U.S. 496 (1939) (permit

needed to lease a hall for a public meeting involving advocacy

of obstruction of the government); Schneider v. State, 308 U.S.

147 (1939) (permit needed to disiribute handbills on public

streets or sidewalks); Cantwell v. Connecticut, 310 U.S. 296

(1940) (permit needed for charitable or religious solicitations);

Largent v. Texas, 318 U.S. 418 (1943) (permit needed for sale of

books or tracts); Murdock v. Pennsylvania, 319 U.S. 105 (1943)

(license tax for selling door to door stricken as applied to

Jehovah’s Witnesses engaging in First Amendment activity);

Saia v. New York, 334 U.S. 558 (1948) (permit needed to use

sound amplification devices); Kunz v. New York, 340 U.S. 290

(1951) (permit needed to hold public worship meetings on

streets); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (per-

mit required for exhibition of motion picture films); Gelling v.

Texas, 343 U.S. 960 (1952) (permit required for exhibiting

motion picture films); Staub v. City of Baxley, 355 U.S. 313 (1958)

(permit needed to solicit members fr an organization); Inter-

state Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968) (films

could only be exhibited to minors if first permitted by a board

of censors); Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)

(parade permit); and City of Lakewood v. Plain Dealer Publishing

Co.,___ U.S. __, 108 S.Ct. 2138 (1988) (annual permit needed to

operate any news racks on public sidewalks).

(1968); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716

(1931).” Vance v. Universal Amusement Co., Inc., 445 U.S.

308, 316, n.13 (1980).

Applying the principles above, two lines of cases

have developed in this Court’s review of licensing laws

imposing a prior restraint on speech activity. The first

holds that “the prior restraint of a license” for speech

activities is unconstitutional if the law fails, on its face, to

set forth “narrow, objective, and definite standards to

guide the licensing authority.” Shuttlesworth, supra, 394

U.S. at 151. Thus, licensing laws affecting speech have

been stricken whenever the criteria for granting or deny-

ing the license conferred any subjective discretion on the

licensor.*

A second line of cases commenced with Freedman v.

Maryland, 380 U.S. 51 (1965), where this Covrt held that a

law licensing speech which lacks certain procedural safe-

guards “contains the same vice as a statute delegating

excessive administrative discretion.” Id. at 57. Specifi-

cally, Freedman held that even if such a law contained

adequate limitations on the licensor’s substantive discre-

tion, it must be found facially invalid as an impermissible

prior restraint if it lacks any of the following procedural

safeguards:5

* See the cases cited in footnote 3, supra.

5 That the Freedman opinion was not in any way depen-

dent upon the presence of any impermissible licensing criteria

is clear from the Court's statement that “we have no occasion

to decide whether the vice of overbroadness infects the Mary-

land statute.” 380 U.S. at 56.

1. Mandatory judicial review of yA administrative

decision to deny a license. 380 U.S. at 58.

2. The licensor must have the burden to seek judi-

cial review in the event a license is denied. Id.

3. The licensor must have the burden of provin

that the license was denied for proper reasons. Id.

4. A requirement that within a “specified brief

period” the licensor must either issue the license

or file a court action to justify the denial. 380 U.S.

at 59.

5. A required “prompt final judicial decision, to

minimize the deterrent effect of an interim and

possibly erroneous denial of a license.” Id.

Freedman held that “[wlithout these safeguards, it

may prove too burdensome to seek review of the censor’s

determination.” Id. See also, City of Lut-wood v. Plain

Dealer Publishing Co., __ U.S. __, 108 S.Ct. 2138, 2144

and 2151 (1988). The Freedman opinion also observed that

a licensing scheme for speech-related businesses which

lacks the articulated procedural safeguards establishes “a

statutory context in which judicial review may be too

little and too late” (380 U.S. at 57) and that “if it is made

unduly onerous, by reason of delay or otherwise, to seek

judicial review, the censor’s determination may in prac-

tice be final.” 380 U.S. at 58.

Although the licensing scheme in Freedman required

the prior submission of individual films to a board of

censors for pre-exhibition approval, this Court’s subse-

quent opinions have made clear that Freedman’s pro-

cedural safeguards apply not only whenever First

Amendment freedoms are subjected to the prior restraint

of a license requirement, but indeed whenever any form

of prior restraint affects protected expression.”

Carolina, Inc., __ U.S. ___, 108 S.Ct. 2667, 2680 (1988) (Freed-

man’s procedural safeguards apply to a content-neutral permit

requirement for professional fundraisers); Southeastern Promo-

tions Ltd. v. Conrad, 420 U.S. 546 (1975) (Freedman’s procedural

requirements apply to an application by a theatrical production

company for use of municipal concert hall); and Teitel Film

Corp. v. Cusack, 390 U.S. 139 (1968) (ordinance establishing film

censorship board violated Freedman where 50-57 days were

allowed to obtain a final administrative decision and there was

no provision for a prompt and final judicial ruling). Cf., City of

Lakewood v. Plain Dealer Publishing Co., supra, ___ U.S. __, 108

S.Ct. 2138 (1988), recognizing that a litigant is constitutionally

entitled to make a facial challenge, rather than a mere “as

applied” challenge, to periodic and content-neutral licensing

laws requiring a business license to engage in speech activity.

Aithough the merits of the challenge presented in that case

involved a law which gave the licensor substantial discretion,

this Court’s opinion intimated that the ordinance could not, in

any event, survive a Freedman analysis. See 108 S.Ct. at 2151.

? Vance v. Universal Amusement Co., 445 U.S. 308 (1980)

(holding Freedman’s procedural safeguards applicable to a judi-

cial prior restraint imposed by the issuance of a preliminary

injunction of indefinite duration against the exhibition of

allegedly obscene materials); Brockett v. Spokane Arcades, Inc.,

454 U.S. 1022 (1981) (affirming without opinion court of

appeals’ judgment striking down Washington’s moral nuisance

statute because it authorized imposition of a judicial prior

restraint (injunctive orders) but lacked the procedural safe-

guards of Freedman); National Socialist Party v. Village of Skokie,

432 U.S. 43 (1977) (judicial injunction prohibiting a parade on

city streets violated Freedman because there was no require-

ment for immediate judicial appellate review); United States v.

Thirty-Seven Photographs, 402 U.S. 363 (1971) (Freedman’s

(Continued on following page)

Most recently, in Riley v. National Federation of the

Blind of North Carolina, Inc., ___ U.S. ___, 108 S.Ct. 2667,

2680 (1988), this Court held that the procedural safe-

guards of Freedman applied to a content-neutral licensing

requirement for professional fund raisers. As in Freedman,

the Riley opinion noted that its procedural holding was

independent of any problems the ordinance might have

had based upon overbroad or discretionary licensing

standards. 108 S.Ct. at 2680, n. 14. Riley held that the

solicitation licensing requirement was impermissible not

only because it failed to require the licensor to go to court

to justify the denial of a license, but also because the

ordinance did not “on its face . . . purport to [limit the

time period within which] a determination must be made

[by the licensor].” 108 S.Ct. at 2680.

Moreover, in a statement that would seem to be

dispositive of the standard of review applicable here, this

Court, in discussing the applicability of Freedman’s pro-

ceuural safeguards, cited its earlier opinio. in Lakewood v.

Plain Dealer, supra, for the proposition that strict scrutiny

under Friedman is required whenever “a state enacts a

statute requiring periodic licensing of speakers, at least

when the law is directly aimed at speech.” Riley, supra,

108 S.Ct. at 2680. Accordingly, strict scrutiny must apply

in the present case because Dallas has enacted an

ordinance requiring periodic licensing of a variety of

(Continued from previous page)

procedural requirements apply to seizures of allegedly obscene

photographs by customs officials); Blount v. Rizzi, 400 U.S. 410

(1971) (Freedman’s safeguards required for seizures 0‘ allegedly

obscene materials by postal authorities).

communicative businesses. The policy reasons for impos-

ing such scrutiny are even greater in the present case

because in Lakewood and in Riley the permit requirements

were content-neutral (i.e., in Lakewood they applied to all

newsrack operators regardless of content; in Riley they

applied to all professional fundraisers, regardless of

viewpoint). In contrast, the licensing ordinance at issue

here applies only to businesses which feature “adult”

entertainment. Surely, no lesser standard of review can

apply where, as here, a license law is required for those

engaged in a particular type of governmentally-dis-

favored speech, i.e. sexually oriented expression.

In sum, this Court’s prior decisions have never once

deviated from the Framers’ fundamental First Amend-

ment precept that licensing requirements for speech are

inherently suspect and must always be subjected to the

strictest standards of judicial review to ensure that a

hostile government cannot use them as tools for censor-

ship. The Court of Appeals’ decision in this case, apply-

ing a deferential standard of review, not only conflicts

with this Court’s settled precedent, but, if adopted by this

Court, would utterly gut the protections of the First

Amendment as intended by the Framers.

The Court of Appeals’ opinion is also aberrational

with respect to this Court’s decisions defining “time,

place and manner” regulations of speech. The panel

majority asserted that Freedman’s strict scrutiny was not

required because this licensing law implemented other

provisions of the city code which, in fact, may constitute

legitimate time, place and manner restrictions, e.g., the

adult zoning provisions of § 41A-13. However, as noted

in dissent by Judge Thornberry, a licensing law is not a

time, place or manner restriction because it leaves open

no alternative channels of speech. Rather, it prohibits the

license applicant from engaging in the desired speech at

any time, in any place and in any manner.

The latter distinction was first recognized by this

Court in Lovell v. City of Griffin, supra, 303 U.S. 444, 451

(1938) when it struck down an ordinance requiring a

license to distribute literature within city limits. This

Court pointed out that there is “no restriction in its

application with respect to time or place” and that “([t)he

ordinance prohibits the distribution of literature .. . at

any time, at any place, and in any manner without a

permit from the city manager” (id.), precisely as

§ 41A-4(a) of the Dallas City Code does.

Finaliy, as a matter of both history and policy, it is

imperative that this Court not accept the lesser standard

of review employed by the panel majority. The history of

the First Amendment is that licensing requirements for

speech-related activities were at the very heart of the

Framers’ concerns when they enacted the First Amend-

ment. If such laws are to be permitted at all (but see Lovell

v. City of Griffin, supra), the only way to be true to the

Framers’ intent is to continue to require that ordinances

establishing such licensing requirements must not only be

narrowly drafted, but also must contain the procedural

safeguards necessary to ensure that, in practice, the

licensing procedure does not become so burdensome,

onerous or time-consuming that judicial relief would

come “too little or too late.”

As a policy matter, there can hardly be imagined a

licensing law more in need of Freedman’s procedural

safeguards than one that is specifically directed to those

engaged in a particular type of protected speech opposed

by many municipal authorities, i.e. sexually oriented

expression. That circumstance presents the most likely

situation in which the absence of procedural safeguards

will result in the suppression of constitutionally pro-

tected expression. As will be discussed below, the Dallas

licensing scheme’s lack of procedtral safeguards causes it

to be rife with opportunities for extremely pernicious and

repressive. forms of administrative censorship.

’

B. The Dallas Licensing Ordinance Lacks Virtually

Every Procedural Safeguard Which Is Mandated By

The First Amendment.

The Dallas ordinance lacks every one of the five

Freedman procedural safeguards. It contains no require-

ment of mandatory judicial review of a license denial; it

does not impose on the licensor the obligation to seek

judicial review in the event a license is denied or

revoked; nor is the licensor assigned the burden of justi-

fying the denial or revocation.

Of perhaps the greatest significance, the ordinance

does not set forth a “specified brief period” within which

the licensor must “either issue the license or go to court.”

380 U.S. at 59. While § 41A-5(a) provides a 30-day time

limit for the issuance of the license, it does not provide a

comparable time for the licensor to go to court after a

denial. Moreover, it doesn’t even impose a time limit for a

final denial of the license: “The Chief of Police shall

approve the issuance of a license . . . within 30 days after

receipt of an application unless he finds,” inter alia,

that “[t}he premises . . . have not been approved by the

health department, fire department, and the building offi-

cial as being in compliance with applicable laws and ordi-

nances.” (§§ 41A-5(a) and 41A-5(a)(6).) Thus, if those other

agencies have not gotten around to acting on the applica-

tion, the Chief may not issue the license. Yet, there are no

time limits imposed upon the health department, the fire

department, or the building official to act on a license

application. The net result is that if the health department,

fire department or building official have failed to act

within 30 days, the ordinance deprives the Chief of Police

of the power to grant the license, yet the ordinance imposes

no duty upon him to deny it at that time (nor could it

impose such a duty since there has not yet been any

necessary indication of disapproval by the health depart-

ment, the fire department or the building official).

Not only does the ordinance leave the time for the

Chief of Police to deny a license open-ended (thereby

precluding any guarantee of prompt judicial review), it

also forces the applicant to await for an indefinite period

the outcome of an additional level of required adminis-

trative review. Under § 41A-11, a party who has had his

or her license denied, suspended or revoked must appeal

the decision of the Chief of Police to a permit and license

appeal board in order to exhaust available administrative

remedies. That board is then given an additional 60 days

before it is even required to hear the appeal (see § 2-96(b)

set forth at J.A. 39) with no requirement that it render a

final administrative determination thereafter within any

specified or brief period.* Throughout this time period,

® See Teitel Film Corp. v. Cusack, supra, 390 US. at 141-142

(the time-consuming requirement of a mandatory administrative

(Continuea on following page)

rights of protected expression are throttled solely on the

basis of an administrative decision by the Chief of Police.

As a result, the licensing scheme not only fails to impose

the burden on the licensor to seek judicial review within a

specified brief period after the application is filed, but it

gives the licensor a virtually unlimited period of time to

arrive at a final judicially reviewable decision.

Finally, the ordinance fails to provide for any type of

expedited judicial review. As this Court pointed out in

National Socialist Party v. Village of Skokie, supra, 432 U.S.

43 (1977), in the absence of “immediate appellate [judi-

cial] review . . . the state must instead allow a stay.” Id. at

44. However, in most circumstances the Dallas licensing

scheme does not allow any sexually oriented businesses

to operate while any judicial or administrative licensing

proceedings are pending even before the trial court,? nor

is there any guarantee that any judicial review that might

be available (either in the trial court or on direct appeal)

will be required in “the shortest fixed period compatible

with sound judicial resolution.” Freedman, supra, 380 U.S.

at 39.

(Continued from previous page)

appeal of a film license denial resulted in a “specified” period

of pre-judicial sesiraint that was excessive, in violation of

Freedman).

% There is no mandatory stay while an order denying a

license is being appealed. Revocation and suspension orders

become effective only after they are upheld by the Permit and

License Appeal Board. However, thereafter the revoked

licensee’s business must immediately close and there is no

provision for a mandatory stay pending judiciai review.

As demonstrated above, the Dallas licensing scheme

lacks each and every one of the five procedural safe-

guards which Freedman articulated in order to ensure that

judicial review does not come “too little and too ‘ate.”

Yet, the burden on the City to provide such minimal

safeguards is not severe. In at least two other regulatory

schemes, the City has established systems for licensor-

initiated judicial review.’ That the City did not choose to

employ those safeguards when it enacted its new sexually

oriented busimess licensing law is perhaps telling of the

City’s true intentions in enacting this onerous ordinance.

Certainly where, as here, the subjects of a licensing

requirement (i.e., sexually oriented businesses) have his-

torically been met with extreme hostility by many munic-

ipal officials, the need for Freedman’s procedural

safeguards are heightened, not lessened.

For all the reasons above, the license requirement of

Dallas City Code § 41A-4(a) must be stricken on its face

as an unconstitutional prior restraint of protected

expression.

91) providing for licensor-initiated judicial review within three

days after adverse decisions of the motion picture classification

board established under § 46-14 (J.A. 87). Similarly, under

6 L708 Gopenduced ot JA. 48-49), there is mandatory licen-

sor-initiated judicial review within three days after an individ-

ual approval of a sign notifies the City that it disagrees

with the s determination that the sign is illegal because it

bears a “commercial message.”

IN PROVIDING FOR LICENSE DENIAL AND

REVOCATION ON THE BASIS OF PRIOR SPEECH

OFFENSES, THE DALLAS ORDINANCE IMPOSES

A CLASSIC PRIOR RESTRAINT OF THE TYPE

PROHIBITED AS FACIALLY UNCONS:iTU-

TIONAL UNDER THE RULE OF NEAR V. MINNE-

SOTA, 283 U.S. 697 (1931).

Over half a century ago in Near v. Minnesota ex. rel.

Olson, 283 U.S. 697 (1931), this Court formulated one of

the most unequivocal rules of constitutional law: past

instances of unprotected speech cannot justify a prior

restraint upon unknown and presumptively protected

future expression.

Citing Near, Justice O’Connor observed in Min-

neapolis Star & Tribune v. Minnesota Commissioner of Reve-

nue, 460 U.S. 575, 583, n.6 (1983):

“(W]hen we .. . have evidence that a lar law

would have offended the Framers, we have not hesi-

tated to invalidate it on that ground alone. Prior

restraints, for instance, clearly strike to the core of

the Framers’ concerns, leading this Court to treat

them as particularly suspect.”

The Dallas licensing ordinance at issue here autho-

rizes the denial or revocation of the special licenses

required for “sexually oriented businesses” on the basis

of prior unprotected expression, ¢.g., a single obscenity

offense. Where a license is required before one may

engage in speech, “[t}he denial of a license to engage in

speech is .. . the classic prior restraint.” (Concurring and

dissenting opinion of Judge Thornberry in this case

below, 837 F.2d at 1306.) If anything, the evil of the prior

restraint is at its worst when, as here, the restraint is

i ti ee

predicated upon past speech which has incurred official

wrath — the classic Near situation.

This Court recognized in Near that in reaction to the

censorial “power of the licenser” in England, the Framers

designed the First Amendment above all else “to prevent

previous restraints upon publication.” 283 U.S. at 713. A

long line of this Court’s landmark free speech decisions

reaffirms that the First Amendment embodies the

Framers’ inveterate hostility toward the prior restraint,

“the most serious and the least tolerable infringement on

First Amendment rights.” Nebraska Press Association v.

Stuart, 427 U.S. 539, 559 (1976); see also New York Times Co.

v. United States, 403 U.S. 713, 714 (1971); Bantam Books,

Inc. v. Sullivan, 372 US. 58, 70 (1963).

Under this ordinance, a special license is required to

operate any communicative business which disseminates

“sexually oriented materials. § 41A-4. The ordinance man-

dates denial of the required license to persons (or those

who reside with persons) who have been convicted of

any of a long list of criminal offenses, including obscenity

or exposure of “harmful material to [a] minor.”

§ 41A-5(a(10A)ee), (ff. This disqualification from the

right to engage in protected First Amendment activity

continues for two years for a single misdemeanor speech

crime, and five years for multiple misdemeanor offenses

or for a felony. § 41A-5(a)(10)(B). Likewise, the ordinance

authorizes revocation of a license if the licensee is con-

victed of an obscenity or “display to minors” offense, or

if any employee of the business is convicted of two such

offenses occurring on the licensed premises within a year.

§ 41A-10(b)(5),(6). These license denial and revocation

provisions, when predicated upon past instances of

es SEE —— = Oh ell = = a — _ i sali , —_— we ! se — _—

unprotected speech, represent precisely the sort of prior

restraint this Court held in Near v. Minnesota to be suscep-

tible of no possible saving justification.

In Near, this Court invalidated an injunction prohibit-

ing a publisher from issuing future editions of his “scan-

dalous” Saturday Press, or any other “scandalous and

defamatory” publication, pursuant to a statute allowing

such a publication to be “wholly abated” as a “nuisance.”

283 U.S. at 701-705, 722-723. As the Court later summa-

rized Near in Kingsley Books v. Brown, 354 U.S. 436, 445

(1957): “Minnesota empowered its courts to enjoin the

dissemination of future issues of a publication because its

past issues had been found offensive. . . .“[T}his is of the

essence of censorship.’” Quoting from Near, 283 U.S. at

713.

Near v. Minnesota addressed and rejected essentially

every argument which governments continue to advance

in defense of prior restraints like this licensing scheme.

The City argued below that this ordinance is to be judged

by its statement of purpose. In Near, however, the Court

emphasized that laws alleged to abridge free speech must

be analyzed with “regard to substance and not to mere

matters of form{;] .. . the statute must be tested by its

operation and effect.” Id. at 708. This Court has often

been required to reaffirm this essential principle, as in

Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 68 (1981):

“the standard of review is determined by the nature of

the righ’ assertedly threatened or violated rather than by

the power being exercised or the specific limitation

imposed.” See also Washington v. Davis, 426 U.S. 229, 243

(1976) (“the operative effect of the law rather than its

purpose is the paramount factor”). It is therefore irrele-

vant how the law’s proponents may seek to characterize

either the purpose of the statute, the activity subjected to

regulation, or the remedy imposed.

Even if the City’s proposed justification were rele-

vant there, it would run afoul of the prior restraint doc-

trine. The announced purpose of the Dallas ordinance in

providing for license revocation on the basis of such prior

convictions is to deny the licensee the “opportunity” to

repeat the crime. Preamble to Ordinance 19196."' The

District Court noted approvingly that the license denial

and revocation provisions are intended “to avoid licen-

sure of those who have recently shown a predilection

toward ... criminal conduct... .” Dumas v. City of Dallas,

648 FSupp. 1061, 1074, n. 34 (N.D.Tex. 1986). Yet this

overbroad means of preventing future speech crimes is

precisely what the Court prohibited in Near, emphatically

rejecting the asserted justification “that prosecutions to

enforce penal statutes for libel do not result in ‘efficient

repression or suppression of the evils of scandal.’” 283

U.S. at 711. The First Amendment requires that our laws

“punish the few who abuse rights of speech after they

break the law” rather than “throttle them. . .

beforehand.” Southeastern Promotions, Ltd. v. Conrad, 420

U.S. 546, 559 (1975).

As part of its rationale for applying a diminished

standard of review to this ordinance, the Court of

Appeals in this case concluded that normal First Amend-

ment protections “are less important when a regulation

"! App. to Cert. Petition in No. 87-2012 at 73.

restricts the conduct of an ongoing commercial enter-

prise.” 837 F.2d 1298, 1303. Yet, since Near this Court has

repeatedly rejected such an approach: “Characterizing

the publication as a business, and the business as a nui-

sance, does not permit an invasion of the constitutional

immunity against restraint.” 283 U.S. at 720. Similarly, in

First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, n.

23 (1978), the Court observed: “It is too late to suggest

‘that the dependence of a communication on the expendi-

ture of money . . . operates to introduce a nonspeech

element or to reduce the exacting scrutiny required by the

First Amendment” (quoting Buckley v. Valeo, 424 U.S. 1,

16 (1976)). Accord, Joseph Burstyn, Inc. v. Wilson, 343 U.S.

495 (1952) (rejecting the argument that a lesser standard

of review should apply to a motion picture licensing law

on the basis of the regulated theaters’ commercial

nature).

This Court reiteratea in New York Times Co. v. Sul-

livan, 376 U.S. 254, 269 (1964), that “mere labels” confer

“no talismanic immunity from constitutional limitations.”

First Amendment scrutiny unquestionably applies

whether an obscenity offense is said to create a “nui-

sance” or to constitute “racketeering activity,” as this

Court most recently held in Fort Wayne Books v. Indiana,

109 S.Ct. 916, 929 (1989): “the State cannot escape the

constitutional safeguards of our prior cases by merely

recategorizing ... obscenity violations as ‘racketeering.’”

Nor does the form of the remedy affect the application

of First Amendment standards: “As far back as the deci-

sion in Near v. Minnesota ..., this Court has recognized

that the way in which a restraint on speech is ‘charac-

terized’ under State law is of little consequence.” I/d.

Under Near’s realistic scrutiny of the law’s “operation

and effect,” it would not have mattered if the State had

revoked Near’s license or obtained forfeiture of his pub-

lishing facilities as a means of stifling future publication

of his Saturday Press, instead of enjoining its continued

publication. This Court rejected the argument that a rem-

edy which directly restrains future speech, however

labeled, can be justified on grounds that it is mere “pun-

ishment” for having uttered unprotected expression:

“The object of the statute is not punishment in the

ordinary sense, but suppression of the offending

newspaper or periodical.

“The statute not only operates to suppress the

offerding newspaper or periodical, but to put the

blisher under an effective censorship.” 283 U.S. at

11-712.

Likewise, the Dallas ordinance operates both to sup-

press the “offending” cabaret, bookstore, or other com-

municative business in retaliation for unprotected speech,

and to place persons denied licenses under effective cen-

sorship whereby they may not engage in protected

expression.

The Dallas ordinance does not represent the first

attempt by government to deal with troublesome speech

or attendant evils more “efficiently” by broadly foreclos-

ing future expression, in lieu of the “sensitive tools”

required by the First Amendment. Of particular relevance

here, the reported cases demonstrate that for at least the

past twenty years, states and localities have endeavored

under various legal devices to close down adult enter-

tainment businesses. On grounds that adult bookstores or

theaters have disseminated materials subsequently adju-

dicated obscene, prosecutors have padlocked them as

“nuisances” or as “racketeering enterprises,” and cities

have denied or revoked their business licenses. In scores

of state and federal jurisdictions, our lower courts have

resoundingly rejected these measures as classic prior

restraints of the type clearly prohibited under Near v.

Minnesota.’2 In this regard, then, the Dallas ordinance

12 The following cases have found nuisance laws uncon-

stitutional which vide for the padlocking of businesses

where obscenity have occurred in the past: Universal

Amusement Co., Inc. v. Vance, 587 F.2d 159, 164-166 (Sth Cir. en

banc 1978) [as to this particular point, all 14 judges of the en

banc court were in agreement], aff'd. on other grounds, 445

U.S. 308 (1980); Pollitt v. Connick, 596 F.Supp. 261, 269-272

(E.D.La. 1984); General Corp. v. Sweeton, 320 So.2d 668 (Ala.

1975), cert. den. 425 U.S. 904 (1976); People ex rel. Busch v.

Projection Room Theater, 17 Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d

600 (1976) cert. den. 429 U.S. 922 (1976); Mitchem v. State ex rel.

Schaub, 250 So.2d 883 (Fla.1971); Sanders v. State, 231 Ga. 608,

203 S.E.2d 153 (1974); People v. Sequoia Books, 165 Ill.App.3d

143, 518 N.E.2d 775 (Ill.App.1988), aff'd. _. N.E.2d ___ (Ill.

1989); State ex rel. Blee v. Mohney Enterprises, 289 N.E.2d 519

(Ind.App.1973); Kansas v. A Motion Picture Entitled “The Bet”,

219 Kan. 64, 547 P.2d 760 (1976); Giarrusso v. D’ Iberville Gallery,

295 So.2d 891 (La.App. 1974); Gulf States Theaters of Louisiana v.

Richardson, 287 So.2d 480 (La. 1974); Parish of Jefferson v. Bayou

Landing Ltd., Inc., Inc., 350 So.2d 158 (La.1977); Society to

Oppose , Inc. v. Thevis, 255 So.2d 876 (La.App. 1972);

City of Minot v. Central Ave. News, Inc., 308 N.W.2d 851 (N.D.

1981); State ex rel. Field v. Hess, 540 P.2d 1165 (Okla. 1975);

Commonwealth ex rel. Davis v. Van Emberg, 347 A.2d 712 (Penn.

1975); and New Rivieria Arts Theatre v. Davis, 219 Tenn. 652, 412

S.W.2d 890 (1967). See also J-R Distributors, Inc. v. Eikenberry,

725 F.2d 482, 494-495 (9th Cir. 1984), rev'd. on other grounds

sub nom. Brockett v. Spokane Arcades, Inc., «>? U.S. 491 (1985);

Nihiser v. Sendak, 405 FSupp. 482, 491-492 (N.D.Ind. 1974),

vacated and remanded on other grounds, 423 U.S. 976 (1975),

order re-entered August 16, 1976 (unpub.), aff'd. 431 U.S. 961

(1977); Huffman v. Pursue, Ltd, 420 U.S. 592, 612, n. 23 (1975); cf.

Speight v. Slaton, 415 U.S. 333 (1974); State ex rel. Ewing v.

“Without a Stitch”, 307 N.E.2d 911 (Ohio 1974).

(Continued on following page)

stands in defiance of Near and of contemporary control-

ling decisions which had seemingly resolved this very

issue, particularly in the Fifth Circuit."

(Continued from previous page)

The following cases have held unconstitutional laws which

allow a license or permit to be either revoked or denied upon a

prior obscenity violation: City of Paducah v. Investment Enter-

tainment, 791 F.2d 463 (6th Cir. 1986); Entertainment Concepts,

Inc. II] v. Maciejewski, 631 F.2d 497, 506 (7th Cir. 1980); Genusa v.

City of Peoria, 619 F.2d 1203, 1217-1220 (7th Cir. 1980), aff’g. 475

F.Supp. 1199, 1207-09 (C.D.IIl. 1979); Gayety Theaters, Inc. v. City

of Miami, 719 F.2d 1550 (11th Cir. 1983); Cohen v. City of

Daleville, Alabama, 695 F. 1168 (M.D.Ala. 1988); Bayside

Enterprises, Inc. v. Carson, 470 F - 1140 (M.D.Fla. 1979); San

Juan Liquors v. Consol. City of ille 480 F.Supp. 151

(M.D.Fla. 1979); Yuclan E Inc. v. Arre, 488 F. . 820

(D.Hawaii 1980); Avon 42nd Corp. v. Myerson, 352 F.Supp.

994 (S.D.N.Y. 1972); Natco Theatres Inc. v. Ratner, 463 F.Supp.

1124 (S.D.N.Y. 1979); Bookmark Corp v. Schrunk, 321

F.Supp. 639 (D.Oregon 1970); Entertainment, Inc. v.

Salt Lake City Corp., F.Supp. (D.Utah 1980); Pe-rine v.

Municipal Court, 5 Cal.3d 656, 97 Cal.Rptr. 320, 488 P.2d 648

(1971), cert. den. 404 U.S. 1038 (1972); Kuhns v. Santa Cruz Co.,

Bd. of Sup’rs., 128 Cal.App.3d 369, 374-375, 181 Cal.Rptr. 1, 3-4

(1982); City of Delevan v. , 31 IlL.App.3d 630, 334 N.E.2d

190 (1975); Alexander v. City of St. , 303 Minn. 201, 227

N.W.2d 370 (Minn. 1975); Hamar Theatres Inc. v. City of Newark,

150 NJ . 14, 374 A.2d 502 (1977); People v. J.W. Produc-

tions, 413 N.Y.S.2d 552 (N.Y.C.Cr.Ct. 1979); City of Seattle v.

Bittner, 81 Wash.24 747, 505 P.2d 126 (1973); see also Interna-

tional Soc. for Krishna Consciousness v. Eaves, 601 F.2d 809,

832-833 (Sth Cir. 1979); Fernandes v. Limmer, 663 F.2d 619,

629-630, 632 (Sth Cir. 1981); cf. Chulchian v. City of Indianapolis,

477 F.Supp. 128, 131-132 (S.D.Ind. 1979), aff'd., 633 F.2d 27, 30

(7th Cir. 1980); Marks v. City of Newport, Ky., 344 FSupp. 675

(E.D.Ky. 1972).

3 See Universal Amusement Co., Inc. v. Vance, 587 F.2d 159,

165-166 (Sth Cir. en banc 1978), ignored by the majority below

(Continued on following page)

Addressing a similar license revocation law, the court

in Cornflower Entertainment, Inc. v. Salt Lake City, 485

F.Supp. 777, 786 (D.Utah 1980) observed: “To reason that

an involuntary closure of a motion picture theatre for

past obscenity violations does not constitute a prior

restraint is clearly contrary to che Supreme Court's defi-

nition of prior restraint.” Virtually every court to address

this issue has applied Near’s prohibition of this type of

restraint as utterly beyond dispute, as did the Court of

Appeals in Gayety Theatres, Inc. v. City of Miami, 719 F.2d

1550, 1552 (Sth Cir. 1983), striking down just such an

ordinance providing for the one-year revocation of a the-

ater’s or bookstore’s license upon conviction for

obscenity:

“[T)he City can no more — 14 such a prior restraint

ee by ordinance restrain a

citizen from speaking in public for one year because

the citizen once uttered an obscenity in a public

place.” ee

The correctness of this avalanche of lower court

authority has been underscored by this Court’s continued

elaboration upon the doctrine estai:lished in Near in the

many cases invalidating prior restraints in their various

forms. See, e.g., Lovell v. City of Griffin, 303 U.S. 444 (1938);

(Continued from previous page)

although clearly dispositive of the license denial/revocation

issue. Cf. Cornflower Entertainment, Inc. v. Salt Lake City Corp.,

485 F.Supp. 777, 785-786 (D. Utah 1980) (citing the Court of

Appeals’ en banc decision in Vance as authority for invalidating

ordinance permitting revocation or suspension of theater

licenses on the basis of obscenity convictions).

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); New York

Times v. United States, 403 U.S. 713 (1971); Organization for

a Better Austin v. Keefe, 402 U.S. 415 (1971); Southeast'rn

Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975); Vance v.

Universal Amusement Co., 445 U.S. 308 (1980).

In Vance v. Universal Amusement Co., supra, this Court

affirmed an en banc Fifth Circuit decision which struck

down a Texas public nuisance statute authorizing prelim-

inary injunctions of indefinite duration against the future

exhibition of unnamed “obscene” materials by those who

had committed a prior obscenity violation. Both this

Court and the lower courts deemed this procedure a prior

restraint devoid of First Amendment safeguards. The

Court of Appeals in Vance had also addressed another

statutory provision which was not appealed to this Court,

the nuisance statute’s abatement provision which appar-

ently authorized closure of any errant theater which had

exhibited an obscene film.

“Thus, future conduct that may fall. within the pur-

view of the first amendment is absolutely prohibited

after a finding of unprotected present conduct. It was

y this practice that was condemned by the

upreme Court in Near v. Minnesota.” Universal

Amusement Co., Inc. v. Vance, 587 F.2d 159, 165 (5th

Cir. en banc 1978).

Because “[a]pplication of the one-year closing provisions

in obscenity cases under the Texas nuisance statutes

would constitute an impermissible prior restraint,” the

_ Court of Appeals construed the padlocking statute as

inapplicable to obscenity violations. 587 F.2d at 166.

The point is not simply that these license disqual-

ification provisions should have been invalidated under

the Court of Appeals decision in Vance and an immense,

virtually unanimous body of decisions from other juris-

dictions, but more fundamentally that those decisions

were compelled by this Court’s unswerving adherence to

the rule announced in Near, a rule which embodies the

paramount concerns sought to be protected by the First

Amendment. As Justice O'Connor emphasized — Min-

neapolis Star, supra, 460 U.S. at 583, n.6 (1983), such prior

restraints “strike to the core of the Framers’ concerns,”

and conclusively so in cases of an absolute prospective

bar on protected speech. ;

Unfortunately, governments will persist, as here, in

urging this Court to “pull one thread” from the protective

fabric of established civil liberties, in furtherance of their

efforts to regulate on behalf of what they deem to be

other, more important public interests. As is so often the

case, however, a law aiming at those involved in what the

district court deemed “unpopular” expression" poses the

_danger of unraveling that garment which protects us all.

In this case, one of the doctrinal threads inconveniencing

the City of Dallas is the rule of Near v. Minnesota, the very

bedrock of the constitutional protection of free speech. If

that rule is to remain in effect, the Dallas ordinance in

this respect must be unequivocally condemned as the

forbidden “essence of censorship.”

14 648 F.Supp. at 1063.

ain

= Sn te i

LICENSE DENIAL, SUSPENSION AND REVOCA-

TION ON THE BASIS OF NON-SPEECH VIOLA-

TIONS ALSO REPRESENT PRIOR RESTRAINTS

WHICH CANNOT WITHSTAND STRICT SCRU-

TINY AND ARE THEREFORE INVALID UNDER

THE FIRST AMENDMENT.

In addition to its paradigm Near restraint for past

unprotected speech, Dallas’ licensing scheme authorizes

officials to deny, suspend or revoke their “permission” to

engage in First Amendment activity on the basis of any

number of other crimes and assorted derelictions.

Because the ordinance imposes a licensing requirement,

and withholding the required license operates as an out-

right ban, rather than a mere burden,"® on all future pro-

tected expression, these provisions as well must

withstand the extremely strict scrutiny of the prior

restraint doctrine. These censorial license disqualifica-

tions are neither narrowly tailored nor necessary to

achieve a compelling governmental interest, and there-

fore must yield to the overriding First Amendment inter-

ests at stake.

5 Whereas any outright ban upon future speech comes to

“a heavy presumption against its constitu-

tional validity,” Vance, supra, 445 U.S. at 316, n.13, a burden

upon speech may trigger strict scrutiny, depending upon its

nature and extent. Examples of laws which burden speech but

do not bar it completely include taxes and zoning laws. Even

taxes are imposed selectively or zoning laws “restrict in any

significant way” the opportunity to speak, they too will

encounter strict scrutiny and normally will be found imper-

missible. See Minneapolis Star, supra; Young v. American Mini

Theaters, Inc., 427 U.S. 50, 78 (1976).

Under the Dallas ordinance, applicants will be denied

a license if they, or someone with whom they reside, has

been convicted of various enumerated offenses such as

prostitution, public lewdness, sexual assault, or incest,

within either two or five years. (See Argument II and

§ 41A-5(aX(10).) A license will be revoked for the subse-

quent commission of any of these crimes, either by the

licensee or, under certain circumstances, by the business’

employees. § 41A-10(b)5,6. The license may be suspended

for, inter alia, the licensee’s or an em >loyee’s “excessive

use of alcoholic beverages” on the premises, and revoked

for two suspensions within a year. § 41A-9(2);

§ 41A-10(a). In short, the ordinance provides city officials

with an extensive variety of justifications for closing busi-

nesses engaged in officially disfavored speech.

These provisions trigger the most exacting First

Amendment scrutiny because the ordinance imposes an

absolute ban upon future protected expression; it there-

fore represents a prior restraint which bears a “heavy

presumption against its constitutional validity.” Vance,

supra, 445 U.S. at 316, n.13. Under the strict scrutiny of

the First Amendment, the City “must show that its regu-

lation is necessary to serve a compelling state interest and

is narrowly drawn to achieve that end.” Arkansas Writers’

Project v. Ragland, 481 U.S. 221, 231.

Given this required standard of analysis, the courts

~ below clearly erred in applying a diminished standard of

review in this case. As Judge Thornberry concluded in his

concurring and dissenting opinion below:

“A a time, and manner anal to a

ucining tastute Bont wd bans toon op Ae

of persons from speaking is illogical .. . . A person

ia - —T

who is completely banned from speech because, for

example, he has in the past been convicted of some

crime has no other avenue of communication.” 837

F.2d at 1310.

On this basis, Judge Thornberry correctly distin-

guished Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

Respondents will undoubtedly rely upon the authority of

Arcara in an attempt to justify these provisions for license

denial and revocation on grounds of non-speech-related

predicate acts or omissions.* Because this ordinance

clearly creates a prior restraint implicating First Amend-

ment interests, reliance upon Arcara in this situation is

mispiaced.

In Arcara, this Court upheld the application of a

generally-applicable New York nuisance statute to

_ padlock the premises of a bookstore for one year, because

its proprietors had knowingly allowed the premises to be

used for purposes of prostitution. This result was

grounded fundamentally on the Court’s conclusion that

First Amendment analysis did not apply at all in Arcara,

conduct with a significant expressive element which drew the

legal remedy in the first place.” 478 U.S. at 706.

going concern. In contrast, the denial of a license under

the Dallas ordinance imposes a complete ban upon pro-

tected expression, i.e., a prior restraint. The closure order

in Arcara was narrowly directed only at the premises

found to be the situs of on-going nuisance activity, and

Chief Justice Burger stressed that the proprietors “remain

free to sell the same materials at another location.” Id. at

705. The direct and complete ban authorized by the

Dallas ordinance, which entirely prohibits one denied a

license from engaging in certain forms of protected

speech activity at any location, is a qualitatively different

kind of restraint upon First Amendment rights.

Second, Justice O’Connor’s concurrence (which also

represented a majority of the Court on this point) empha-

sized that if a law were used to close down a bookstore

“because of the perceived secondary effects of having a

purveyor of [indecent] books in the neighborhood, the

case would clearly implicate First Amendment concerns

and require analysis under the appropriate First Amend-

ment standard of review,” i.e., in this case, the extremely

exacting scrutiny of the prior restraint doctrine. Both

courts below found that the entire ordinance, including

its non-speech license disqualification criteria, was

enacted because of the perceived secondary effects of

having an adult bookstore or cabaret in the neighbor-

hood. See 648 F. Supp. at 1064-1066; 837 F.2d at 1303. For

this reason as well, these provisions “implicate First

Amendment concerns and require [First Amendment]

analysis.” Id.

The applicable standard of First Amendment scrutiny

had previously been faithfully applied both in the Fifth

Circuit and elsewhere to invalidate this type of criterion

for license-denial either as conferring undue discretion or

substantively as a prior restraint. In Fernandes v. Limmer,

663 F.2d 619 (Sth Cir. 1981), this same Court of Appeals

invalidated an ordinance requiring a license for the distri-

bution of literature and solicitation of funds at the Dallas

airport. The required permit could be denied on several

grounds, including conviction of a felony or other offense

“involving moral turpitude.” The court struck the licens-

ing scheme in its entirety for its lack of Freedman safe-

guards, and held more particularly that most of the

grounds for permit denial were invalid either as involv-

ing undue discretion or as otherwise impermissible prior

restraints:

“[G]overnmental authorities may not, except in

demanding circumstances, deny access to a public

forum in anticipation of consequences that may flow

from the contemplated activity. Punishment for crimi-

nal behavior must be government's response to an abuse of

the privilege to use a public forum; prospective restraints

are unconstitutional.” 663 F.2d at 628 (emphasis

added).

Accordingly, the court concluded the provision fcr

denial of a permit to persons convicted of crimes was

patently invalid.

“To sustain such a total abrogation of First Amend-

ment rights, the government must show that the

speech prohibited will ‘surely result in direct, imme-

diate and irreparable damage ... ’ [ New York

Times Co. v. United States, 403 US. 713, (1971)).

That the applicant has been convicted of a crime in the

past ts a sufficient reason for his blanket exclusion in

the future.

“Persons with prior criminal records are not First Amend-

ment outcasts.” Id. at 629-630 (emphasis added).

In striking down this Dallas ordinance, the Fernandes

court followed an earlier Fifth Circuit decision, Interna-

tional Society for Krishna Consciousness v. Eaves, 601 F.2d

809 (Sth Cir. 1979), invalidating analogous permit revoca-

tion portions of a similar ordinance governing solicitation

at the Atlanta airport. To revoke a permit for violations

under the airport ordinance, the court held, “is simply a

recipe for an unlawful prior restraint.” 601 F.2d at 832.

The Court held that the City could not possibly justify a

prior restraint by asserting

F «i

“that once a sinner, always a sinner; anyone who has

violated the ordinance once is likely to violate it

again. We have recently held, en banc, that no ang

restraint may be based on this broad generalization.”

Id. at 833, citing Universal Amusement Co. v. Vance, 587

F.2d 159, 16 (Sth Cir. 1978). |

In addition to these Fifth Circuit cases, indistinguish-

able in principle from the issue of license denial and

revocation under the Dallas sexually oriented business

ordinance, the Court of Appeals in Genusa v. City of

Peoria, 619 F.2d 1203 (7th Cir. 1980), addressed and invali-

dated materially identical provisions of an adult enter-

tainment licensing ordinance. The Peoria ordinance

provided for the denial, suspension or revocation of an

adult bookstore license to anyone convicted during the

preceding four years of any felony, any prostitution-

related offense, any obscenity-related offense, or any

offense “opposed to decency and morality.” 619 F.2d at

1218.

The Court of Appeals in Genusa rejected outright

these provisions “totally prohibit[ing] certain classes of

persons from selling in Peoria books that are protected by

the First Amendment.” Id. at 1218-1219. The court first

rejected as unsubstantiated the City’s assertion “that

those who have committed past crimes or offenses are

more likely to commit them again, and that the prohibi-

tion of the ordinance will, by keeping the past offender

and the adult use separate, cause a decrease in crime.” Id.

at 1219. Even if this broad empirical assertion were

proved, the court doubted these contentions could “legit-

imize the broad prior restraint on First Amendment free-

doms that the ordinance seeks to impose.” Id.

“We know of no doctrine that permits the state to

deny a person First Amendment liberties .. . solely

because that person was once convicted of a crisne or

other offense.” Id. at 1219, n.40.

Again, these decisions of the Courts of Appeals are

discussed not merely to point oui ‘he radical departure of

the courts below from the established precedent of their

own circuit, nor to suggest that their authority binds this

Court. Rather, these cases represent the faithful applica-

tion of First Amendment principles announced by this

Court, fundamental constitutional groundrules which

compel a result contrary to that reached by the Court of

Appeals in this case. The Dallas ordinance’s provisions

for prospectively denying the right to speak cannot by

any means withstand strict scrutiny under the First

Amendment and particularly under the prior restraint

doctrine.

As the courts concluded i: Fernandes, Eaves, and

Genusa, a broad prospective restraint on the ability to

"participate in protected First Amendment activity simply

cannot be justified as a narrowly tailored or necessary

means to achieve the City’s crime-prevention objectives.

In many such cases, there will in fact be no nexus at all

between the prior crime and the licensee’s operation of an

expressive business; nor will denial of a license logically

operate to deter future criminal conduct. The connection

between the crir .inal offenses and operation of a commu-

nicative business is far too tenuous to support a total

restraint on protected expression.

In sum, the City has not demonstrated - and could

not demonstrate - that its purpose of preventing the

enumerated crimes cannot be more narrowly achieved by

enforcement of the criminal laws rather than by with-

drawing the privilege to engage in First Amendment

activities. The exercise of First Amendment freedoms is

simply deemed too precious a right under our constitu-

tional system to allow for this kind of broad pre-emptive

strike in an effort to anticipate, under loosely-supported

assumptions, future criminal conduct which may or may

not occur. Accordingly, these license disqualification pro-

visions must be stricken as impermissible prior restraints.

THE DALLAS LICENSING REQUIREMENT IS SO

RIDDLED WITH UNCONSTITUTIONAL FEA-

TURES THAT IT MUST BE STRICKEN IN ITS

ENTIRETY.

Although petitioners originally brought these law-

suits challenging a wide variety of features in Chapter

41A of the Dallas City Code, the only issues remaining

before this Court concern the constitutionality of the

licensing requirement of § 41A-4(a). Petitioners

respectfully submit that the only appropriate remedy

would be the facial invalidation of that requirement.

First, the absence of Freedman procedural safeguards

from the licensing scheme alone requires its facial

invalidation en toto. However, even apart from the ord:

nance’s Freedman problems, it would have to be facially

invalidated for substantial overbreadth in any event.

Where, as here, “the overbreadth of [a] statute, in relation

to its legitimate reach, is substantial, it] warrants a decla-

ration of facial invalidity.” Brockett v. Spokane Arcades,

Inc., 472 U.S. 491, 503, n.12 (1985). Separate from its

Freedman deficiencies, this licensing law is so riddled

with unconstitutional features that its overbreadth is

indisputably substantial compared to its legitimate reach.

As discussed in Point II, the various provisions for

license denial, non-renewal, suspension or revocation due

to prior speech offenses are patently unconstitutional

under Near v. Minnesota, supra. Similarly, the comparable

provisions justifying denial, etc., based on prior non-

speech offenses are equally impermissible because they

also operate as prior restraints and do not constitute the

least restrictive means of accomplishing any compelling

state interests.

However, even apart from those defects, the ordi-

nance is virtually saturated with additional clearly

unconstitutional features. First, it is replete with discre-

tionary substantive licensing criteria, the most notable of

which are listed below:

= ee —

’

1. Sections 41A-9(5) and 41A-5‘a)(8), allow the

Chief of Police to sus or deny a license,

respectively, where the or wae has,

in the nainanes and sole o the chief,

“demonstrated that he is unable to operate ...a

sexually oriented business in a peaceful and law-

abiding manner... .”

2. The chief has discretion under § 41A-9(2) to sus-

pend 0 Dosen Ee ® ot Se eee SS

ensee or an employee has “engaged in exces-

sive use” of alcohol while on the premises.

3. Under § 41A-5(a)(3), the Chief of Police has dis-

cretion to deny a license if, in his opinion the

applicant has “failed to provide information ‘rea-

sonably necessary’ for of the license.”

4. Under § 41A-8(b), renewal of a license after a

’ nl discretionary mrebe et soo the

only , not tory, even ert

basis for the prior denial has been corrected!

5. Similarly, under § 41A-10(e), reinstatement of the

license after revocation is only discretionary, not

mandatory, even after the basis for revocation has

been corrected!

Each of the foregoing provisions provides the Chief

with subjective and discretionary criteria which may be

utilized for the wrongful denial or nonrenewal of a

license, notwithstanding this Court's last term reiteration

that periodic licensing laws for businesses engaged in

speech activities must be stricken on their face as uncon-

stitutional if they lack objective standards to limit the

licensor’s discretion. City of Lakewood v. Plain Dealer,

supra. This Court noted that “[s]tandards provide the

guideposts that check the licensor and allow courts

quickly and easily to determine whether the licensor is

discriminating against disfavored speech.” 108 S.Ct. at

2144. None of the three dissenting judges in Plain Dealer

disagreed with these propositions. Instead, the dissent

was exclusively based on the asserted absence of a First

Amendment right to put a newsrack on a public sidewalk.

The entire Court agreed that the Lovell - Freedman line of

cases would apply where the First Amendment rights of a

business are subjected to a license requirement. 108 S.Ct.

at 2152-53, 55.

However, in the present case there is no question but

that petitioners’ sexually oriented communicative busi-

nesses are engaged in activity protected by the First

Amendment. Accordingly, there would appear to be no

dispute as to petitioners’ entitlement to facially challenge

these discretionary provisions. The applicable rule, then,

is that stated by this Court in Shuttlesworth v. City of

Birmingham, supra: “[A] law subjecting the exercise of

First Amendment freedoms to the prior restraint of a

license, without narrow, objective, and definite standards

to guide the licensing authority, is unconstitutional.” 394

U.S. at 150-151.'7 Other examples of patently unconstitu-

tional provisions in this ordinance abound:

1. Under § 41A-8(a), an a seeking renewal

must go through the initial license applica-

tion process set forth in § 41A-4. Nonrenewal of a

license could then be justified for anything as

minor as an inability to get approval of the build-

ing official because certain might not be

up to code (see § 41A-5(a)(6)). Yet, under

7 Accord Interstate Circuit, Inc. v. City of Dallas, 390 U.S.

676, 683 (1968) (hoiding that “[t]he vice of vagueness is partic-

ularly pronounced where expression is sought to be subjected

to licensing”).

§ 41A-8(b) once such a renewal request is denied,

the Chief is ex ly forbidden from reconsider-

ing the for “at least 90 days” even though

he “finds that the basis for denial of the renewal

ed.

Similarly, under § 41A-10(e), a revoked license

cannot reinstated after “the basis for the

revocation has been corrected or abated” until “at

least 90 days have elapsed since the date the

revocation t ‘came effective.” *

A license cannot be granted under § 41A-5(a)(5) if

the applicant merely resides with a person whose

license was denied within the prior 12 months for

any reason, including being overdue in paying

any taxes or license fees (§ 41A-5(a)(2)), failing to

meet an we health or fire code ire-

ments é 41A-5(a)(6)), or failing to provide all

“information reasonably necessary.”

(§ 41A-5(a)(3)). All of these conditions are easily

remediable but the ban on licensure nonetheless goes

on for a full year! The arbitrariness and over-

breadth of this section is additionally evidenced

by the fact that this limitation results from licens-

ing difficulties experienced one with whom

the applicant rverely resides. [Yet, the City inex-

plicably did not impose a comparable restriction

where it is the applicant himself who has had such

prior licensing difficulties!]"

18 Where the basis for revocation is a prior criminal con-

viction, the minimum period of revocation is even greater,

either two or five years. See § 41A-10(e) and 41A-5(a)(10)(B).

19 It is true, as mentioned above, that an applicant who

has been denied renewal or whose license has been revoked must

await a minimum 90 day period before seeking relicensure.

However, as to those applicants seeking an initial license, the

(Continued on following page)

4. A license can also be denied (see § 41A-5(a)(9)),

sus ed (see § 41A-9(1)), or revoked (see

§ 41A-10(a)) if the applicant or licensee has vio-

lated the inspection requirements of § 41A-7.

Under § 41A-7(a), the applicant is compelled to

allow his or her premises to be fully inspected at

any time it is occupied or open for business by a

virtually endless list of public agencies. These

include:

(a) the police department,

(b) the health department,

(d) the housing and neighborhood services

department,

(e) the building inspection division.

This requirement for warrantless inspections by so

broad a list of government agencies must be found defi-

cient under the Fourth Amendment principles articulated

by this Court in Marshall v. Barlow's, Inc., 436 U.S. 307

(1978) and Lo-Ji Sales, Inc. v. New York, 442 US. 319, 329

(1979) (“there is no basis for the notion that because a

retail [adult book] store invites the public to enter, it

consents to wholesale searches and seizures that do not

conform to Fourth Amendment guarantees.”)

In sum, the licensing law challenged in this case is so

replete with constitutional deficiencies that the only

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City failed to impose upon them the same one year ban on

relicensure as they have imposed on those applicants who

reside with persons who have previously been denied a

license. This is the epitome of arbitrariness and irrationality.

appropriate remedy is the facial invalidation of the

licensing requirement of § 41A-4(a).

CONCLUSION

For all of the reasons above, this Court should

reverse the order of the Court of Appeals and strike

down the license requirement of Dallas City Code

§ 41A-4(a) on its face.

DATED: May 26, 1989 Respectfully submitted,

Joun H. Weston*

G. RANDALL GaRRou

Catuy E. Crosson

Weston & SARNO

Attorneys for Petitioners

in No. 87-2051

*Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.