Amicus Curiae Brief — City News & Novelty, Inc. v. Waukesha

[Supreme ourt, U.S.

(3) | FILED ="

No.99-1680 | AUG25200 |

_

| “TERK

IN THE

Supreme Court of the United States

City NEWS AND NOVELTY, INC..,

Petitioner,

Vv .

CITY OF WAUKESHA,

Respondent.

On Writ of Certiorari

to the Supreme Court of Wisconsin

BRIEF AMICUS CURIAE OF THE LIBERTY

PROJECT IN SUPPORT OF PETITIONER

JODIE L. KELLEY *

JULIE M. CARPENTER

DAVID C. BELT

JENNER & BLOCK

601 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 639-6000

Counsel for Amicus Curiae

The Liberty Project

August 25, 2000 * Counsel of Record

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES ... ci ccccccccccccccess il

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SUMMARY OF ARGUMENT ...............0.00055 2

THE WAUKESHA ORDINANCE IS AN

INVALID PRIOR RESTRAINT BECAUSE

IT FAILS TO ASSURE A PROMPT JUDICIAL

DETERMINATION OF THE PROPRIETY OF

THE CITY’S REFUSAL TO GRANT A LICENSE

TO AN ADULT-ORIENTED BUSINESS ............. 4

A. This Court’s Decisions in Freedman

and FW/PBS Mandate That a Licensing

Ordinance Provide for a Prompt Final

Judicial Decision on the Merits of Any

SEE 6.34 5446440600460504 609-005 5

B. The Requirement of a Prompt Judicial

Determination is Essential to Ensure

That a Licensing Scheme Will Not

Suppress Constitutionally Protected

a 6 6o 4 +abbehbsksaueesSbeeecesees ll

EY S46 Gecuveenenbsteus Keucwecisendus 20

il

TABLE OF AUTHORITIES

CASES

11126 Baltimore Boulevard, Inc. y. Prince

George's County, 58 F.3d 998 (4th Cir.

| Pere 8,9, 10, 12, 19

4805 Convoy, Inc. v. City of San Diego,

183 F.3d 1108 (9th Cir. 1999) ................ 14, 19

Action for Children's Television v. FCC, |

Pe Ee Tide 2 ee 5,6

Baby Tam & Co. v. City of Las Vegas,

154 F.3d 1097 (9th Cir. 1998) ........... 9, 13, 16, 18

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

(EDGE) «cs cccusecvessens06een scien 5

Blount v. Rizzi, 400 U.S. 410 (1971) .............. 7,9

Boss Capital, Inc. v. City of Casselberry,

187 F.3d 1251 (11th Cir. 1999), cert. denied,

ESOS. CR. BORD GRREED oc cunsesedaunaee 8,9, 15,17

City of Houston v. Hill, 482 U.S. 451 (1987) ......... 14

City of Lakewood v. Plain Dealer Publishing Co.,

GE US. TIO CIGD 2 cc ccvccecucesntesusanee 17

East Brooks Books, Inc. v. City of Memphis,

GS F.36 Ta0 GG Cae, CSGED os ov kvcncvccessuaeee 9

Elrod v. Burns, 427 U.S. 347 (1976) ............... 14

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

(0 PPT passim

Graff v. City of Chicago, 9 F.3d 1309 (7th Cir.

DTP eE Rn ebbedecédccceoesceccs 8, 15, 18

Interstate Circuit, Inc. v. City of Dallas,

i ieee cece eee seceoceess 7, 16

Jews for Jesus, Inc. v. Massachusetts Bay

Transportation Authority, 984 F.2d 1319 (1st Cir.

UTE PieEE i eseesscebectoceocecccoes: 8

Marks v. United States, 430 U.S. 188 (1977)......... 10

Martin Tractor Co. v. FEC, 627 F.2d 375 (D.C. Cir.

EEE LEE LEE LIAISE OTOP ETE ET ETE 15

Nightclub Management, Ltd. v. City of Cannon Falls,

95 F. Supp. 2d 1027 (D. Minn. 2000) ............. 19

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884

es Cccbkweeeoeece ss 9, 13, 18, 19, 20

Shuttlesworth v. City of Birmingham, 394 U.S. 147

a Cee hese de eeesebcesesesecces 14, 16, 17

Southeastern Promotions, Ltd. v. Conrad,

TE ccceeecccéeseececceces passim

TK's Video, Inc. v. Denton County, 24 F.3d 705

eek ec cee eeeeeececcces 8,9, 15

United States v. Thirty-Seven (37) Photographs,

ee ccc ee eeceecees 6,9

iv

MISCELLANEOUS

Sandra C. Di Giulio, Expedited Judicial Review

Ensures that Restraints On the Adult Entertainment

Industry Pass Constitutional Muster, 31 McGeorge

pe, PD <sécndnnendubeesdvedecnbies 20

Examining the Work of State Courts, 1998:

A National Prespective from the Court

Statistics Project (Brian J. Ostrom &

Pe Ss SUE bdcereccenstvesacensi 14

Martin H. Redish, The Proper Role of the Prior

Restraint Doctrine in First Amendment Theory,

eee 12

Lawrence H. Tribe, American Constitutional Law

Ph ie <csscadbvuecedenedabesasaase 13,17

No. 99-1680

IN THE

Supreme Court of the Anited States

CiTY NEWS AND NOVELTY, INC,

Petitioner,

Vv.

CITY OF WAUKESHA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Wisconsin

BRIEF AMICUS CURIAE OF THE LIBERTY

PROJECT IN SUPPORT OF PETITIONER

INTEREST OF AMICUS'

Thomas Jefferson warned, “the natural progress of

things is for liberty to yield and government to gain ground.”

Mindful of this trend, The Liberty Project was founded in

1997 to promote individual liberty against encroachment by

all levels of government. The organization espouses

vigilance over regulation of all kinds, as well as restriction of

‘Petitioners and respondents both have consented to the filing of this

amicus brief. Counsel for respondent has informed amicus that a letter of

consent has previously been filed with the Court. Petitioner’s letter of

consent is being lodged with the Clerk.

2

individual civil liberties such as the rights to free speech and

to association, which threaten the reservation of power to the

citizenry that underlies our constitutional system.

This case implicates one of the most profound individual

liberties, the right to free speech, a critical aspect of every

American’s right (and responsibility) to function as an

autonomous and independent individual. Laws imposing

licensing requirements on expression are of particular

concern to The Liberty Project because they undermine or

destroy this fundamental right. If not subject to prompt and

effective judicial review, such laws present a particular

danger of abuse, with extremely severe consequences for

targeted individuals and types of expression. The Liberty

Project’s strong interest in the protection of the freedom of

all citizens to engage in expression without government

interference will allow it to provide this Court with

additional insight into the constitutional values at stake in

this case.

SUMMARY OF ARGUMENT

In Freedman v. Maryland, 380 U.S. 51 (1965), this

Court set forth three procedural safeguards required of

administrative prior restraints to ensure that undue delay

does not result in the unconstitutional suppression of speech.

One of those safeguards, that any administrative refusal to

permit speech must be accompanied by “a prompt final

judicial decision,” 380 U.S. at 59, recognized both that a

public official’s refusal to deny a license will sometimes be

erroneous and that, absent prompt and certain judicial

review, that refusal could be tantamount to a final decision.

In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), this

Court considered the applicability of Freedman to an

3

administrative licensing scheme regulating sexually oriented

businesses. In upholding the “core principle” of Freedman,

six Justices of this Court concluded that Freedman’s

requirement of prompt judicial review remained an

“essential” safeguard in combating the unconstitutional

suppression of speech. 493 U.S. at 228. Nevertheless,

several circuits, and the Wisconsin Court of Appeals in the

instant case, concluded that FW/PBS relaxed the prompt

judicial review safeguard and that, in the context of an

ordinance regulating sexually oriented businesses, mere

access to a judicial forum was all that this Court’s precedents

require.

These courts are incorrect. Both Freedman and FW/PBS

made clear that a statute conditioning the right to speak on

the receipt of a license must ensure a prompt judicial

decision, not merely access to a judicial forum. These cases

correctly recognize that the scope of First Amendment rights,

and thus the propriety of any government regulation of them,

is fundamentally an issue for the courts. Any scheme that

fails to require prompt judicial review of a license denial not

only delays the-right to speak in the event that the denial was

erroneous, but, more important, increases the risk that, due to

delay, the licensor’s “determination may in practice be

final.” Freedman, 380 U.S. at 58. The arguments for

relaxing this prompt judicial review requirement fail to take

into account these risks of delay, and provide no basis for

this Court to revisit and weaken well-established principles

designed to protect constitutional rights against

admin'strative overreaching.

4

ARGUMENT

THE WAUKESHA ORDINANCE IS AN INVALID

PRIOR RESTRAINT BECAUSE IT FAILS TO

ASSURE A PROMPT JUDICIAL DETERMINATION

OF THE PROPRIETY OF THE CITY’S REFUSAL TO

GRANT A LICENSE TO AN ADULT-ORIENTED

BUSINESS.

This case presents a narrow but fundamental question:

whether a licensing scheme that acts as a prior restraint on

constitutionally protected speech is invalid unless it ensures

that a license denial will be reviewed by a court in a timely

manner. That question must be answered in the affirmative.

As this Court has repeatedly recognized, “[a]ny system of

prior restraint . . . comes to this Court bearing a heavy

presumption, against its constitutional validity.” FW/PBS,

“Inc. City of Dallas, 493 U.S: 215, 225 (1990) (plurality

opinion) (quoting Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 558 (1975)) (alteration in FW/PBS). A

licensing scheme that acts as a prior restraint by prohibiting a

business engaged in expressive activity from operating

altogether can be as effective a tool of censorship as direct —

censorship itself. And because businesses cannot survive if

they cannot operate, without prompt judicial review to

reverse erroneous license denials or revocations, the prior

restraint these licensing decisions impose may easily and

quickly become a permanent restraint on protected speech.

Accordingly, this Court should affirm the requirement

announced in Freedman v. Maryland, 380 U.S. 51 (1965),

and declared “essential” in FW/PBS, 493 U.S. at 228, that a

licensing regime that acts as a prior restraint must be

promptly reviewed by a court if it is to pass constitutional

ne

5

muster. Because the Waukesha licensing ordinance “exists

as a prior restraint on businesses purveying sexually explicit

but protected speech,” City News & Novelty, Inc. v. City of

Waukesha, 604 N.W.2d 870, 876 (Wis. Ct. App. 1999), but

does not provide for prompt judicial review of licensing

decisions, it should be invalidated.

A. This Court’s Decisions in Freedman and FW/PBS

Mandate That a Licensing Ordinance Provide for a

Prompt Final Judicial Decision on the Merits of Any

License Denial.

The framework for analyzing this case is well-

established. In Freedman, this Court recognized the very

real risks to protected speech that a system of administrative

prior restraints imposes. A censor “may well be less

responsive than a court — part of an independent branch of

government — to the constitutionally protected interests in

free expression,” and thus judicial review of decisions

imposing a prior restraint on speech is critical. 380 U.S. at

57-58; see also Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 559 (1975) (noting that “the line between

legitimate and illegitimate speech is often so finely drawn

that the risks of freewheeling censorship are formidable”).

Moreover, “if it is made unduly onerous, by reason of delay

or otherwise, to seek judicial review, the censor’s

determination may in practice be final.” Freedman, 380 U.S.

at 58.7 Accordingly, the Freedman Court adopted procedural

*See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71 (1963)

(“We have tolerated such a system (of prior administrative restraints] only

where it operated under judicial superintendence and assured an almost

immediate judicial determination of the validity of the restraint.”), citing

Kinglsey Books, Inc. v. Brown, 354 U.S. 436 (1957); Action for Children's

6

safeguards that must be employed when the government acts

to censor speech directly:

First, the burden of instituting judicial proceedings,

and of proving that the material is unprotected, must

rest on the censor. Second, any restraint prior to

judicial review can be imposed only for a specified

brief period and only for the purpose of preserving

the status quo. Third, a prompt final judicial

determination must be assured.

Southeastern Promotions, 420 U.S. at 560 (summarizing

Freedman requirements); see also Freedman, 380 U.S. at 59

(reiterating that a licensing “procedure must . . . assure a

prompt final judicial decision, to minimize the deterrent

effect of an interim and possibly erroneous denial of a

license’’).

In the wake of Freedman this Court has repeatedly

reaffirmed both the need for judicial review of governmental

decisions suppressing speech, and the need for such review

to be quickly completed. See, e.g., Southeastern Promotions,

420 U.S. at 560 (“a prompt final judicial determination must

be assured”); United States v. Thirty-Seven (37)

Photographs, 402 U.S. 363, 367, 371-74 (1971) (requiring

safeguards that ensure that “administrative delay does not in

itself become a form of censorship,” including time limits for

completion of judicial proceedings in obscenity forfeiture

Television v. FCC, 59 F.3d 1249, 1260 (D.C. Cir. 1995) (“The lesson of

Bantam Books is that the state may not move to suppress speech by means

of a scheme that, as a practical matter, forecloses the speaker from obtaining

a judicial determination of whether the targeted speech is unprotected, lest

the state be able effectively to suppress protected speech.”).

Sa

7

cases); Blount v. Rizzi, 400 U.S. 410, 417 (1971) (requiring

“a final judicial determination on the merits within a

specified, brief period”); Interstate Circuit, Inc. v. City of

Dallas, 390 U.S. 676, 690 n.22 (1968) (Freedman satisfied

by statute requiring judicial determination within nine days

of administrative decision). These cases made clear that the

scope of the First Amendment’s protections is a question for

the courts and that any scheme censoring speech due to its

content must therefore ensure a prompt judicial

determination of the propriety of that regulation.

Twenty-five years after Freedman was decided, this

Court reviewed an ordinance strikingly similar to that

presented in this case. In FW/PBS, 493 U.S. 215, the Court,

in a series of separate opinions, struck down portions of an

ordinance which imposed licensing requirements on adult

entertainment establishments. Three justices, in an opinion

authored by Justice Brennan, reasoned that the full panoply

of protections required by Freedman apply in this context,

and that the ordinance failed to conform to those safeguards.

493 U.S. at 239-41 (Brennan, J., concurring). in an opinion

written by Justice O'Connor, three other members of the

Court, reasoning that the ordinance involved only the

“ministerial action” of “review[ing] the general

qualifications of each license applicant” rather than “passing

judgment on the content of any protected speech,” id. at 229,

concluded that the first Freedman safeguard — that the

government institute a judicial proceeding and bear the

burden of proving that certain material is unprotected — was

unnecessary. /d. at 229-30.

Justice O’Connor’s opinion also recognized, however,

that, as with a censorship system, “a licensing scheme creates

the possibility that constitutionally protected speech will be

8

suppressed” absent adequate procedural safeguards. Jd. at

226. Accordingly, the “core policy” underlying Freedman,

“that the license for a First Amendment-protected business

must be issued within a reasonable period of time, because

undue delay results in the unconstitutional suppression of

protected speech,” id. at 228, applies with equal force to

censorship systems and to licensing schemes. Therefore,

these three Justices concluded, the remaining Freedman

safeguards not only apply, but “are essential: the licensor

must make the decision whether to issue the license within a

specified and reasonable time period during which the status

quo is maintained, and there must be the possibility of

prompt judicial review in the event that the license is

erroneously denied.” Jd. at 228 (emphasis added) (citing

Freedman, 380 U.S. at 51).

In the wake of FW/PBS, four Circuit Courts of Appeals

and the Wisconsin Court of Appeals have concluded that,

although this Court deemed at least two Freedman

requirements “essential,” it nonetheless “relaxed,” without

discussion, the requirement that administrative prior

restraints be subject to prompt judicial review. See City

News & Novelty, 604 N.W.2d at 881 (mere availability of

judicial review of an administrative restraint satisfies

“prompt judicial review” requirement); Boss Capital, Inc. v.

City of Casselberry, 187 F.3d 1251, 1256-57 (11th Cir.

1999); TK’s Video, Inc. v. Denton Cty., 24 F.3d 705, 709 (Sth

Cir. 1994); Graff v. City of Chicago, 9 F.3d 1309, 1324-25

(7th Cir. 1993) (plurality opinion) (en banc); Jews for Jesus,

Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319, 1327 (lst

Cir. 1993). Three other Circuits have flatly disagreed,

concluding that “Part II of Justice O’Connor’s opinion did

not relax the Freedman prompt judicial review requirement.”

11126 Baltimore Blvd., Inc. v. Prince George's County, 58

9

F.3d 998, 999 (4th Cir. 1995) (en banc); accord Nightclubs,

Inc. v. City of Paducah, 202 F.3d 884, 894 (6th Cir. 2000)

(“[A] system of prior restraint that fails to ensure a

reasonably prompt decision by a judicial officer cannot be

squared with the First Amendment.”); Baby Tam & Co. v.

City of Las Vegas, 154 F.3d 1097, 1101-2 (9th Cir. 1998)

(“prompt judicial review” requires both a hearing and a

prompt decision by judicial officer); East Brooks Books, Inc.

v. City of Memphis, 48 F.3d 220, 225 (6th Cir. 1995) (same).

As set out below, the Fourth, Sixth and Ninth circuits are

correct.

Although the cases concluding that mere access to a

judicial forum is sufficient after FW/PBS are not models of

clarity, they appear to rely on Justice O’Connor’s use of the

phrase “possibility of prompt judicial review,” 493 U.S. at

228, rather than the phrase “assure a prompt final judicial

decision” that was used in Freedman, 380 U.S. at 59. See

Boss Capital, 187 F.3d at 1255; TK’s Video, 24 F.3d at 709.

But these two phrases do not reflect substantive differences.

Indeed, Freedman itself used the phrases “prompt judicial

review” and “prompt judicial determination”

interchangeably, 380 U.S. at 56-60, as have numerous cases

since. See Southeastern Promotions, 420 U.S. at 561-62

(holding that “board’s system did not provide a procedure for

prompt judicial review” where judicial determination on

merits was not obtained for more than five months);

Thirty-Seven Photographs, 402 U.S. at 367-70 (using term

“prompt judicial review” as synonymous with “prompt

judicial decision”); Blount, 400 U.S. at 417 (summarizing

Freedman as holding that, “to avoid constitutional infirmity

a scheme of administrative censorship must . . . require

‘prompt judicial review’ — a final judicial determination on

the merits within a specified, brief period”’).

10

Moreover, given the thoroughness with which Justice

O’Connor explained her view that the first Freedman

safeguard was unnecessary in the context presented there, see

493 U.S. at 228-30, and the degree to which that analysis

was the subject of division on the Court, see, e.g., 493 U.S.

at 240-41 (Brennan, J., concurring in the judgment), it is

utterly implausible that Justice O’Connor intended to relax

the third Freedman safeguard, without analysis, solely by

means of a minor change in phrasing. Indeed, Justice

O’Connor’s opinion deemed the requirement of prompt

judicial review “essential” — citing Freedman itself for

support, FW/PBS, at 228.’

Finally, and critically, the holding of FW/PBS confirms

that the third Freedman safeguard remained unchanged.

Having held that the “prompt judicial review” safeguard was

mandatory, Justices O’Connor, Stevens, and Kennedy joined

a majority of the Court in striking down the ordinance under

review for failing to provide such a safeguard, even though,

as Justice White noted in dissent, “no one suggests that

licensing decisions are not subject to immediate appeal to the

courts.” Jd. at 248 (White, J., concurring and dissenting). If

the “prompt judicial review” requirement meant the mere

access to a judicial forum, the Court in FW/PBS would have

upheld the ordinance because a party denied a license had

access to such a forum. In short, FW/PBS cannot plausibly

‘In any event, Justice O’Connor’s opinion spoke for only three Justices

of the Court. See FW/PBS, 493 U.S. at 238-42 (Brennan, J., concurring in

the judgment) (all three Freedman safeguards apply). Thus, the Court's

holding is the narrowest ground on which the case was decided — which was

that the challenged ordinance did not provide adequate procedural

safeguards. See, e.g. Marks v. United States, 430 U.S. 188, 193 (1977):

11126 Baltimore Blvd., 58 F.3d at 999.

1]

be read to relax the requirement in Freedman that a licensing

scheme provide for a prompt judicial determination.

B. The Requirement of a Prompt Judicial

Determination is Essential to Ensure That a

Licensing Scheme Will Not Suppress

Constitutionally Protected Speech.

This Court was correct in holding that a scheme that

conditions the right to engage in expressive activity on the

receipt of a license must be subject to prompt judicial review,

and it should not now alter or abandon that requirement.

Ours is a society that places paramount value on the ability

to think and speak, free from unwarranted government

interference. Because a free society “prefers to punish the

few who abuse rights of speech after they break the law than

to throttle them and all others beforehand,” Southeastern

Promotions, 420 U.S. at 559, any law conditioning the right

to speak on the permission of government officials must

contain safeguards to ensure that protected speech is not

wrongfully suppressed. See FW/PBS, 493 U.S. at 226-27:

Freedman, 380 U.S. at 56-57.

One “evil” that such safeguards must protect against is

the ability of the government to make a prior restraint

permanent by delaying its decision on whether to issue the

necessary license. Ses FW/PBS, 493 U.S. at 227 (“A scheme

that fails to set reasouable time limits on the decisionmaker

creates the risk of indefinitely suppressing permissible

speech.”). Thus, “a prior restraint that fails to place limits on

the time within which the decisionmaker must issue the

license is impermissible.” /d. at 226. But requiring the

decisionmaker merely to act quickly does not adequately

protect speech. Mindful of the risk that the decisionmaker —

12

even if acting quickly - may wrongly deny the license, courts

have unwaveringly concluded that the denial must not be the

last word on the subject. Instead, it is the judiciary that must

make the determination whether a licensing decision that

serves as a prior restraint on speech is appropriate. See

Freedman, 380 U.S. at 58 (“only a judicial determination in

an adversary proceeding ensures the necessary sensitivity to

freedom of expression”); see generally Martin H. Redish,

The Proper Role of the Prior Restraint Doctrine in First

Amendment Theory, 70 Va. L. Rev. 53, 55 (1984) (“The

requirement of a full and fair hearing before an independent

judicial forum for the adjudication of constitutional rights is

a widely accepted premise of modern constitutional

thinking.”). Thus, the decision on a license application must

be coupled with prompt judicial review of that decision.

These two requirements work in conjunction to ensure

that speech is not wrongfully, and, even worse, permanently,

suppressed. Without a requirement that a licensing decision

be made within a reasonable time period, speech could be

restrained indefinitely by the licensor’s mere inaction. See,

e.g., 11126 Baltimore Blvd., 58 F.3d at 996; FW/PBS, 493

U.S. at 227. In such a case, the availability of prompt

judicial review of a licensing decision would be meaningless.

Similarly, the requirement that a licensing decision be made

quickly would be small comfort to a license applicant if

review of that decision could be delayed for months, or

years. Even if the license applicant could prove with

certainty that the denial was erroneous, if such judicial

review does not occur quickly, there is a very real risk that

the licensor’s erroneous decision will, in effect, be final. See

—

13

Freedman, 380 U.S. at 58-59.4 Thus, the “two Freedman

safeguards work together to ensure that the entire review

process will be expeditious” and meaningful. Nightclubs,

Inc., 202 F.3d at 893; see generally Lawrence H. Tribe,

American Constitutional Law § 12-37, at 1055 (2d ed. 1988)

(because of “judicial primacy in first amendment

jurisprudence,” Court has invalidated “any system which

allows administrative determinations either directly or

indirectly to determine finally the scope or application of

first amendment privileges’’).

Access to a judicial forum alone is plainly insufficient to

forestall the “effect of finality” that a licensor’s decision

would otherwise have. Freedman, 380 U.S. at 58.5 Even

“prompt” access to a judicial forum does not ensure that

resolution will be prompt, and therefore does nothing to

“While City News itself has pursued its case through the levels of

court, this Court’s jurisprudence in this area has never focused on whether

the party before it actually was able to stay in business during the period of

the prior restraint, because the fact that the case is even before it means that

the license seeker was able to challenge the denial or suspension to the

Supreme Court. Rather, the Court’s concern is with the number of cases

that neither it nor any other court will ever see. See, e.g.. Freedman, 380

U.S. at 59 (noting that, absent procedural safeguards, aggrieved parties may

lack incentives to challenge license denials).

*As an initial matter, such a “requirement” would not add anything and

it would be meaningless for this Court to have mandated it and deemed it

“essential.” All litigants possess the right to challenge a statute — even if it

does not impose a prior restraint — on constitutional grounds. See

Nightclubs, Inc., 202 F.3d at 893; Baby Tam & Co., 154 F.3d at 1101

(“prompt judicial review” requirement meaningless if mere access to

judicial review were sufficient, because “‘[a] person always has a judicial

forum when his speech is allegedly infringed’”) (quoting Graff, 9 F.3d at

1324 (plurality op.)).

14

prevent a wrongful restraint on speech that lasts for months

or years. In the instant case, for example, a full 17 months

elapsed between City News’s application for a license and

the first judicial decision on the merits. See City News &

Novelty, 604 N.W.2d at 875-76. Nothing in the Wisconsin

Court of Appeals’ decision indicates that proceedings in this

case were unusually protracted, and statistics from state

courts across the country indicate that such delays are not

uncommon. See Examining the Work of State Courts, 1998:

A National Perspective for the Court Statistics Project 38-39

(Brian J. Ostrom & Neal B. Kauder ed., 1999) (civil trials in

state courts average 22 months from filing to disposition).°

In the context of a restraint on protected speech, such delays

are devastating. Quite apart from the fact that any delay in

the exercise of First Amendment rights constitutes

irreparable harm,’ a muzzle on speech that lasts for months

*Although City News itself was allowed to continue operating during

the pendency of this case, nothing in the statute mandates such a stay.

Accordingly, the statute itself still “gives rise to the possibility of the

suppression of protected expression before judicial review of the case on the

merits, and is therefore contrary to the principles which underlie the

procedural safeguards set forth in FW/PBS.” 4805 Convoy, Inc. v. City of

San Diego, 183 F.3d 1108, 1116 (9th Cir. 1999).

"See Freedman, 380 U.S. at 61 (if statute does not require prompt

judicial determination, “the victorious exhibitor might find the most

propitious opportunity for exhibition pas(sed]”); see also, e.g., Elrod v.

Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes irreparable

injury.”); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 162-63

(1969) (Harlan, J., concurring) (delay in exercise of First Amendment rights

in itself burdens them and may risk their destruction); cf City of Houston

v. Hill, 482 U.S. 451, 467-68 (1987) (explaining Court’s reluctance to

abstain in cases that raise facial challenges to statutes under First

Amendment, noting that allowing claimant to “suffer the delay of

15

as a case challenging denial of a license winds its way

through the “protracted and onerous course of litigation,”

Freedman, 380 U.S. at 59, will frequently result in a total

denial of speech. A prospective bookstore may well abandon

its plan to open if it is prohibited from doing so for months

or years. An existing business that has to close because its

license is revoked or not renewed may well not have the

means to continue fighting the licensing decision through the

judicial system — especially given that the closure denies it of

revenue. The only practical alternative for many of these

businesses is to steer far clear of the underlying statutory

provisions, thus bringing about the “chilling” of speech that

the prior restraint doctrine seeks to avoid. See Southeastern

Promotions, 420 U.S. at 559.

The Courts of Appeal that have effectively eliminated

the judicial review requirement have not attempted to

grapple with the harm such delay imposes. Instead, they

have focused on factors that are uniformly irrelevant to the

need for procedural safeguards. Some courts, for example,

appear to rely on the fact that the licensing scheme at issue is

content-neutral. See Boss Capital, 187 F.3d at 1256; Graff, 9

F.3d at 1331-33 (Flaum, J., concurring); see also TK 's Video,

24 F.3d at 708.* Even if true, this does not alter the need for

state-court proceedings might itself effect the impermissible chilling of the

very constitutional right he seeks to protect”) (quotation and citation

omitted); Martin Tractor Co. v. FEC, 627 F.2d 375, 380 (D.C. Cir. 1980)

(noting chilling effect on protected expression that delay might produce).

*Although the Fifth Circuit noted the “content-based” restrictions of

other cases, it rejected Freedman’s requirement of a prompt judicial

determination primarily on the basis that “[a] ‘brief period’ within which all

judicial avenues are exhausted would be an oxymoron.” 7K's Video, Inc.,

24 F.3d at 709. But this Court has never required that all judicial

16

prompt judicial review. Indeed, FW/PBS itself involved a

regulation that was no less content-neutral than the ordinance

at issue here, and was nonetheless deemed constitutionally

infirm because it “fail[ed] to provide an avenue for prompt

judicial review so as to minimize suppression of the speech

in the event of a license denial.” FW/PBS, 493 U.S. at 229;

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 155 n.4

(1969) (content-neutral regulation must provide for

“expeditious judicial review”). That is not to dispute, of

course, that content-neutral regulation is subject to a lower

constitutional standard, and a fortiori is more likely to be

valid in the abstract, than content-based regulation. But even

a statute limited to “mundane” content-neutral factors runs

the risk that the factors will be applied improperly or that the

factors themselves, however “mundane,” do not justify the

regulation of particular expressive activity. The danger of

prior restraints arises not from the basis on which a

government official denies a license, but from the possibility

that, absent an assurance of prompt review, there will be no

judicial determination of whether that denial was proper —

resulting in the wrongful suppression of protected speech.

Thus, the relevant question is not whether the underlying

regulation is within the proper scope of government

regulation, but whether the determination of whether the

regulation was properly applied will be decided quickly

enough to prevent the erroneous denial from becoming

proceedings, including relevant appeals, must conclude within that brief

period. Rather, the Court has required only a decision by a trial court in an

adversary hearing. /nterstate Circuit, 390 U.S. at 690 n.22; Baby Tam &

Co., 154 F.3d at 1102 (the term “final” means “that a judicial officer should

make the final decision denying a license rather than a state censor .... It

does not refer to a court’s decision itself becoming final through various

rehearing and appellate procedures.”).

17

permanent. It is for this reason that a licensing ordinance,

even if providing narrow standards, violates the Constitution

if it does not also provide the procedural safeguards that

Freedman mandates. See FW/PBS, 493 U.S. at 226-30

(invalidating licensing ordinance under Freedman despite

claim that ordinance is content-neutral); Shuttlesworth, 394

U.S. at 155 & n.4 (content-neutral ordinance restraining

speech must make available “expeditious judicial review”);

see also Southeastern Promotions, 420 U.S. at 552 (refusing

to reach question whether prohibited speech was obscene

because system was “lacking in constitutionally required

minimal procedural safeguards”); City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 763-64 (1988) (even if

“government may constitutionally impose content-neutral

prohibitions on a particular manner of speech, it may not

condition that speech on obtaining a license or permit from a

government official in that official’s boundless discretion”;

otherwise, official may make decision of “who may speak

and who may not based on the content of the speech or

viewpoint of the speaker”); see generally Tribe, supra, § 12-

37 & -38, at 1054-57 (noting concerns that “an

administrative censor is unlikely to be sensitive to the values

of freedom of expression” and that an administrative official

will use licensing power to discriminate based on content

through selective enforcement of regulatory power).

Nor does the fact that “applicants for adult entertainment

licenses . . . have every incentive to stick it out and see

litigation through to its end,” Boss Capital, 187 F.3d at 1256,

justify abandoning the requirement of prompt judicial

review. In FW/PBS, Justice O’Connor reasoned that,

because the viability of an entire business is impacted by a

licensing scheme, an applicant denied a license will

invariably initiate court proceedings to challenge the denial —

18

thus rendering unnecessary Freedman’s command that the

licensor bear the burden of going to court. 493 U.S. at 229-

30; of. Freedman, 380 U.S. at 61 (refusing to set forth rigid

procedures for accomplishing safeguards). But the judicial

remedy sought by the potential licensee must be effective to

be meaningful and, as discussed above, review may well be

meaningless unless the court proceedings produce a quick

decision. See Baby Tam & Co., 154 F.3d at 1101-02

(“judicial review” entails both consideration and a decision;

“{w]ithout consideration, there is no review; without a

decision, the most exhaustive review is worthless’’).

Finally, the fact that a “municipality does not have the

authority to direct a state judicial court to issue a decision

within a specified period of time,” City News & Novelty, 604

N.W.2d at 882, is irrelevant to the question of whether the

Constitution compels a prompt decision. If a municipality

cannot ensure prompt judicial review, the remedy is to

invalidate the licensing ordinance, not to relax the

constitutional requirement. See Graff, 9 F.3d at 1341

(Cummings, J., dissenting) (“[S]ince when does a city gain

special dispensation to violate the United States Constitution

because a state law contradicts it? Under the Supremacy

clause, the state law must give.”). In any event, this

reasoning does not support the Wisconsin Court's

interpretation of the “prompt judicial review” requirement:

just as a municipality cannot direct a state court to issue a

decision within a specified period of time, it also cannot

grant that court jurisdiction to review the municipality’s

licensing decision. Only the state legislature has these

powers. See Nightclubs, 202 F.3d at 893 & n.10 (both the

availability of judicial review and the speed within which

certain cases must be resolved are dependent upon state law).

There is no reason that a city — due to its claimed

19

powerlessness to comply with Freedman - should be

excused from its constitutionally imposed requirements,

especially where a state government enacting precisely the

same law would not be so exempt.

Moreover, even though a city cannot alone ensure a

prompt judicial determination, it is not powerless to bring its

licensing scheme in compliance with Freedman’s

commands. For example, an ordinance may provide that a

license denial or revocation goes into effect only upon a

judicial determination affirming the denial or revocation of a

license, see Nightclubs, 202 F.3d at 894; /1/26 Baltimore

Blvd., 58 F.3d at 1001 n.18, and could provide provisional

licenses to new applicants pending judicial review of license

denials, see Nightclubs, 202 F.3d at 894. Indeed, such an

approach avoids altogether the risk of delay that

administrative restraint poses. See, e.g., 4805 Convoy, Inc. v.

City of San Diego, 183 F.3d 1108, 1115 (9th Cir. 1999)

(Freedman requirement could be met where a licensing

scheme provides “for an automatic stay [of a license

Suspension or revocation] pending a judicial decision”);

Nightclub Management, Ltd. v. City of Cannon Falls, 95 F.

Supp. 2d 1027, 1036 (D. Minn. 2000).

A city could also take measures short of abandoning the

prior restraint aspect of its licensing statute altogether. A

city could, for example, “provide that a license shall issue if

a reviewing court fails to reach a decision within a

reasonably brief period of time,” Nightclubs, 202 F.3d at

894, and could petition the reviewing court for expedited

briefing or hearing in cases where a frustrated license

applicant seeks judicial review. In addition, a city could

petition its state legislature to pass laws obligating state

courts to resolve municipal administrative appeals, or

20

appeals raising First Amendment issues, within a brief

period. /d.; see generally Sandra C. DiGiulio, Expedited

Judicial Review Ensures that Restraints On the Adult

Entertainment Industry Pass Constitutional Muster, 31

McGeorge L. Rev. 623, 629-32 (2000) (discussing new

California statute creating “an expedited judicial review

process to appeal a local administrative revocation,

suspension or denial of a permit or other entitlement for

expressive conduct protected by the First Amendment”). In

short, even if a city’s purported lack of power were relevant

to the constitutional validity of a city’s ordinance, cities are

not powerless to meet the procedural safeguards set forth in

Freedman.

CONCLUSION

For the foregoing reasons, the judgment of the

Wisconsin Court of Appeals upholding Waukesha’s

licensing ordinance should be reversed.

Respectfully submitted,

Jodie L. Kelley *

Julie M. Carpenter

David C. Belt

JENNER & BLOCK

601 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 639-6000

Counsel for Amicus Curiae

The Liberty Project

*Counsel of Record

August 25, 2000