Amicus Curiae Brief — City of Littleton v. ZJ Gifts D-4, LLC

No. 02-1609

In The Supreme Court Of The United States

CITY OF LITTLETON,

Petitioner,

v.

Z. J. GIFTS D-4, L.L.C., a Colorado Limited Liability

Company d/b/a Christal’s,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF OF OHIO AND 14 OTHER STATES AS

AMICI CURIAE SUPPORTING PETITIONER

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

REBECCA L. THOMAS

Assistant Solicitor

Of Counsel: 30 East Broad Street, | 7th Floor

Columbus, Ohio 43215

DAN SCHWEITZER 614-466-8980

National Association of | 614-466-5087 fax

Attorneys General Counsel for Amici States

750 First St., N.E.

Suite 1100

Washington, DC 20002

202-326-6010

WILLIAM H. PRYOR, JR.

Attorney General

State of Alabama

KEN SALAZAR

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

MARK J. BENNETT

Attorney General

State of Hawaii

STEVE CARTER

Attorney General

State of Indiana

THOMAS J. MILLER

Attorney General

State of lowa

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

PAUL G. SUMMERS

Attorney General

State of Tennessee

GREG ABBOTT

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

QUESTION PRESENTED

Whether the requirement of prompt judicial review

imposed by FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990),

entails a prompt judicial determination or a prompt

commencement of judicial proceedings.

TABLE OF CONTENTS

ee eI ceiccnceinenteiininisinnsicnnntennieiniatnindtbiniaiiiis i

ey a te cinniccensececenmecentantintneneneinninnmnnael ii

a er Fa Se ircencnctnsrentamssnnninmenntatanemeninees iv

INTEREST OF THE AMICI STATES......cccccscccccsccosccesecceseess l

SUMMARY OF ARGUMENT....................ccccsssscssssccssecseseees 2

GERTEIIDTS cnsnsncessncersssssensssnmsnmecmnnamemeennnntas 4

I. The First Amendment Does Not Require That An

Otherwise Constitutional Content-Neutral

Licensing Scheme For Adult Businesses

Guarantee A Speedy Judicial Decision ...................0+ 4

A. The Court has_ recognized that

governments may _ regulate adult

businesses in order to ameliorate the

secondary effects of those businesses ............ 4

B. An adult-business licensing scheme aimed

at secondary effects is not a content-based

censorship scheme; thus, it need not meet

the same standards as a censorship scheme.... 6

wl Prompt access to court, rather than

Freedman’s speedy-judicial-determination

requirement, suffices to protect the First

Amendment interests of adult businesses..... 1 |

iii

Page

D. Requiring a guarantee of speedy judicial

determination would significantly impede

the ability of state and local governments

to address the secondary effects of adult

DIINO ccccccclnsescosnssscenscsssessesesasenesssnesssesenes 14

Il. In The Alternative, If Assurance Of A Speedy

Judicial Determination Is Required, The Court

Should Recognize That Provisional Licenses (Or

The Equivalent) Pending Completion Of The First

Level Of Judicial Review Will Alleviate Any First

Amendment COncesins .........0..-ccccccccccssssescscssscsecccsees 16

I IIIS cccccecsccccscsesesccscessresesssssnsesnssssseesanssessnessosssnesee 19

— — ——

iV

TABLE OF AUTHORITIES

Page

Cases

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

183 F.3d 1108 (Sth Cir. 1999)..............ccccsscsssssscessnees 17

11126 Baltimore Blvd., Inc. v.

Prince George's County, Md.,

58 F.3d 988 (4th Cir. 1995),

CORR. GE ee es Ce cceensntenmeniminen 17

Allen v. Butterworth,

a See A. accesses 15

Arcara v. Cloud Books, Inc.,

SD se Ge cccemsnnsesentnemaseessennentnmmenmentes 13

Boss Capital, Inc. v. City of Casselberry,

187 F.3d 1251 (1 bebe Cir, 1999).......cccccccccccscoceccsesceesees 9

City News and Novelty, Inc. v. Waukesha,

Pe Wes Pe Gee crcesnenemmnennnieiel 6, 11, 16

Coate v. Omholt,

ee 15

Complaint Against Grady,

348 N.W.2d 559 (Wisc. 1984) ...........0006. evevececseeeeeces 15

Deja Vu of Cincinnati, L.L.C. v.

Union Township Board of Trustees,

326 F.3d 791 (6th Cir. 2003),

rehearing gtanted and opinion vacated

C—O 8,17

Vv

Page

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

i Pe Le, . | 9

Erie v. Pap's A.M.,

FSO UB. STF CAGED cersevecvssssvevsesssesesovssvsssenseseees 4,5, 10

Essence, Inc. v. City of Federal Heights,

ry PA Beet) os | | 9

FW/PBS, Inc. v. Dallas,

GBD UB. SES CIGGGD weccecccnccvescvsvescccssesczsssesesensve0s passim

Freedman v. Maryland,

bE BO | ee passim

Lady J. Lingerie, Inc. v. City of Jacksonville,

176 F.3d 1358 (11th Cir, 1999)... ceceeeseeeeeesenees 9

Lakewood y. Plain Dealer Publishing Co.,

LS TL, | ee 8

Los Angeles v. Alameda Books, Inc.., ,

RIE Ge | 4,5,7, 10

National Socialist Party of America v.

Village of Skokie,

RE 16

Renton v. Playtime Theatres, Inc.,

STS UB. SE (FGBGD cccececcccssesececesssscsesscevscessssseveeeg passim

Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ................... ssiasiettiantatntinatisionll 6, 10

vi

Page

Thomas v. Chicago Park District,

Se Wade FOO GRE renemmnemnmanenenel 6

U.S. v. O'Brien, 391 U.S. 367 (1968) ........c.cccssccesseescesseeseees 13

Young v. American Mini-Theatres, Inc.,

SF Gk Se COED cesnenesssetsnsereemennnmennitl 4,5

Statutes and Ordinances

a l

Chto Reviess Code § SUS.S1 q...cccccoscccsscsscesecvesovenssssssccesceesensees |

SD Sar GD DOGS cenereererseesemnesmeenee 8,9

Ee 9

Littleton City Code 3-14-8 ..........cccsscssssesseeeeseeeeeeesees 8, 11,12

NN eR i |

Union Twp., Ohio, Resolution 00-22 ..........ccccccesseeeeeeeeeeeseeees 8

INTEREST OF THE AMICI STATES

State and local governments work together to regulate

businesses operating within their borders, including adult

businesses. A State may enact adult-business regulations

itself, or it may authorize local governments to do so.’ At the

same time, it is state statutes or rules of court that govern the

process of providing for state court review of adverse

licensing decisions made by local governments.

Through whatever means are chosen, States are, to

varying degrees, involved in regulating businesses at the

local level, and have a strong interest in ensuring the success

of that regulation. This is especially true in the area of adult-

business regulation aimed at ameliorating the local secondary

effects known to result from such businesses, such as crime

and urban blight. These problems directly affect the quality

of residents’ lives, and therefore are the proper concerns of

both state and local governments. Further, States have a

strong interest in protecting their courts from undue

interference with docket management, not to mention an

interest in avoiding the separation-of-power problems that

mandated judicial-decision deadlines present. Consequently,

the amici States are concerned about the imposition of

unwarranted court-decision deadlines that could strain scarce

judicial resources and threaten the integrity of the judicial

deliberation process.

The amici States therefore wish to add our voices to

this discussion of whether an adult-business licensing scheme

that is otherwise constitutional must provide for a speedy

judicial determination with respect to adverse administrative

' See, e.g., Ohio Revised Code §§ 503.51, ef seg. (enabling

legislation allowing townships to regulate “adult cabarets’’);

Tennessee Code §§ 7-51-1121, et seq. (enabling legislation for

counties to regulate “adult-oriented establishments”); 24 Delaware

Code §§ 1601, et seq. (statewide regulation of “adult entertainment

establishments”).

2

licensing decisions. We ask this Court to reverse the court of

appeals and hold that the First Amendment is satisfied by

prompt access to court to review such decisions.

SUMMARY OF ARGUMENT

State and local governments have substantial interests

in combating the harmful secondary effects, such as crime

and urban blight, that adult businesses are known to cause.

The Court has upheld certain adult-business regulations,

distinguishing them from censorship schemes and subjecting

them only to intermediate scrutiny under the First

Amendment, as long as they were aimed at the secondary

effects of those businesses. Adult-business licensing

schemes like Littleton’s—likewise aimed only at secondary

effects—should be accorded the same treatment.

The Court has applied different standards to prior-

restraint censorship schemes than to regulations, such as

those here, geared toward eradicating secondary effects of

adult businesses. Thus, when faced with content-based

censorship schemes, the Court has declared them

presumptively unconstitutional because of the grave danger

that constitutionally-protected speech will be wrongfully

suppressed, and applied strict standards to ensure the

protection of free speech rights. For example, this Court, in

Freedman v. Maryland, 380 U.S. 51 (1965), held that certain

safeguards must accompany a content-based film censorship

scheme to satisfy the First Amendment, and placed on the

government the entire burden of proving the validity of an

adverse decision.

But in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990),

Justice O’Connor’s opinion concluded that an adult-business

licensing scheme—involving nondiscretionary decision-

making based on objective criteria developed to ameliorate

negative secondary effects of adult businesses—merited

3

lesser scrutiny, as it did not present a serious danger of

censorship and thus was not presumptively unconstitutional.

See id. at 223-230 (principal opinion of O’Connor, J.). The

opinion determined that such a scheme must merely assure a

timely administrative decision and provide for “the

possibility of prompt judicial review.” See id. at 228.

The amici States submit that prompt access to court

satisfies the “prompt judicial review” requirement in this

context. Littleton’s licensing scheme, like the Dallas scheme

at issue in FW/PBS, is more like a zoning ordinance than a

censorship scheme. Because this type of licensing scheme is

not content-based, the danger of unconstitutional suppression

of speech is slight, and the businesses do not need tlie type of

protection mandated by Freedman. Instead, businesses

receive all of the safeguards they need when the scheme

imposes reasonable time limits on administrative decisions

and provides for prompt access to court review. Indeed,

since the criteria in the schemes are objective and

ministerially applied, even to the extent that erroneous

licensing decisions might cause constitutional harm, the

applicant could readily demonstrate that error to a court and

obtain an injunction or other temporary relief pending review

if necessary.

Conversely, imposing a requirement of a speedy

judicial decision would significantly impede governments’

ability to address the secondary effects of adult businesses.

Imposing court deadlines raises serious separation-of-powers

problems, and the only alternative is to suffer the secondary

effects these usinesses cause, either temporarily or

permanently. Because the licensing criteria will render

content-based decisions highly unlikely, however, these costs

are imposed for no reason—the businesses’ First Amendment

rights are already sufficiently protected. Accordingly, there

is simply no basis for imposing a speedy-judicial-decision

requirement on these licensing schemes.

The amici States, then, argue first and foremost that

there should be no speedy-judicial-decision requirement

imposed at all. If, however, this Court decides otherwise,

then the amici States urge the Court not to foreclose the

possibility that provisional licenses or the equivalent while

review is pending are a constitutionally-adequate substitute

for speedy judicial determination. These temporary licenses

fully safeguard First Amendment rights because, if no speech

is suppressed pending review, no unconstitutional censorship

can possibly occur.

ARGUMENT

I. The First Amendment Does Not Require That An

Otherwise Constitutional Content-Neutral

Licensing Scheme For Adult Businesses Guarantee

A Speedy Judicial Decision.

A. The Court has _ recognized _ that

governments may regulate adult businesses

in order to ameliorate the secondary effects

of those businesses.

It is common knowledge that certain undesirable

secondary effects, such as increased crime and decreased

property values in surrounding areas, tend to accompany

adult businesses. See Renton v. Playtime Theatres, Inc., 475

U.S. 41, 52 (1986) (citing the “admittedly serious problems”

that arise in conjunction with adult businesses) (quoting

Young v. American Mini-Theatres, Inc., 427 U.S. 50, 71

(1976) (plurality opinion)); Los Angeles v. Alameda Books,

Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring)

(“Municipal governments know that high concentrations of

adult businesses can damage the value and the integrity of a

neighborhood”); Erie v. Pap’s A.M., 529 U.S. 277, 297

(2000) (plurality opinion) (holding it reasonable for a city to

,

5

rely on the evidence in Young and Renton “to the effect that

secondary effects are caused by the presence of even one

adult entertainment establishment in a given neighborhood”).

It is likewise well-established that there is a

- Substantial governmental interest in regulating adult

businesses in an effort to ameliorate those secondary effects.

See Renton, 475 U.S. at 50 (interests in combating negative

secondary effects of adult businesses to preserve urban

quality of life are “vital governmental interests” that deserve

“high respect”) (quoting Young, 427 U.S. at 71 (plurality

—opinion)); Erie, 529 U.S. at 296-97 (plurality opinion)

(government interests in combating the “harmful secondary

effects” associated with adult entertainment establishments is

“undeniably important); FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 244 (1990) (White, -J., and Rehnquist, C.J.,

concurring in part and dissenting in part) (“[T]here is a

substantial governmental interest in regulating sexually

oriented businesses because of their likely deleterious effect

on the areas surrounding them”) (citing Renton and Young);

Alameda Books, 535 U.S. at 435-36 (plurality opinion)

(substantial government interest in reducing crime permits a

city to regulate adult businesses in ways that evidence

reasonably indicates will reduce crime).

Although regulations directed at the content of speech

are subject to strict scrutiny under the First Amendment, this

Court has held that regulations aimed at the secondary effects

of adult businesses are subject only to intermediate scrutiny.

For example, this Court has applied intermediate scrutiny to

zoning regulations and regulations prohibiting certain

conduct, and upheld them. See, e.g., Alameda Books, 535

U.S. at 433-443 (plurality opinion); id. at 445 (Kennedy, J.,

concurring); Renton, 475 U.S. at 46-50, 54; Erie, 529 U.S. at

289-302 (plurality opinion). As shown below, (1) the

secondary-effects framework—trather than a prior restraint

6

analysis—applies to licensing schemes like Littleton’s, and

(2) accordingly, the Freedman requirement of a speedy

judicial decision does not properly apply to them.

B. An adult-business licensing scheme aimed

at secondary effects is not a content-based

censorship scheme; thus, it need not meet

the same standards as a censorship scheme.

Content-based censorship schemes, which are prior

restraints aimed at suppressing classes of unprotected speech

(such as obscenity), are presumed unconstitutional because of

the grave danger that governmental actors will use the

schemes to wrongfully suppress constitutionally-protected

speech that they deem undesirable. See generally FW/PBS,

493 U.S. at 225-26, 229 (principal opinion of O’Connor, J.);

Thomas v. Chicago Park District, 534 U.S. 316, 321 (2002).

See also Southeastern Promotions, Ltd. v. Conrad, 420 US.

546, 558-59 (1975) (presumption against prior restraints

exists because “the risks of freewheeling censorship are

formidable”). For that reason, in Freedman v. Maryland, 380

U.S. 51 (1965), this Court held that ceriain procedural

safeguards must accompany a content-based film censorship

scheme, including the guarantee of a speedy judicial

determination following an adverse administrative decision.

See id. at 59; City News and Novelty, Inc. v. Waukesha, 531

U.S. 278, 280-81 (2001).

In fact, Freedman placed the entire burden on the

government to demonstrate the propriety of its censorship.

Of course, this approach makes sense in the context of an

administrative decision that is presumptively

unconstitutional. See FW/PBS, 493 U.S. at 225, 229

(opinion of O’Connor, J.). According to Freedman, a

government is required to make a quick (presumptively-

invalid) administrative decision itself, then institute court

proceedings and there prove the validity of its

7

(presumptively-invalid) decision, and then make sure that the

judicial determination is issued promptly. See id. at 58-60.

The Freedman requirements work together to make sure that,

when a government enacts laws designed to allow

suppression of speech based on content, it bears the entire

burden of justifying that suppression.

But adult-business licensing schemes like Littleton’s

do not present a similar danger of censorship, because they

involve nondiscretionary decisionmaking based on

. Objectively-determinable criteria developed for the purpose

of ameliorating the negative secondary effects of adult

businesses. See FW/PBS, 493 U.S. at 228-29 (opinion of

O’Connor, J.). Nondiscretionary regulatory schemes aimed

at the secondary effects of adult businesses—even though

they apply to only one particular class of businesses—

provide “less reason to be concerned that [governments] will

use these [regulations] to discriminate against unpopular

speech.” See Alameda Books, 535 U.S. at 440 (plurality

opinion).

The Littleton licensing scheme applies only routine,

objective criteria to applicants, leaving no room for

discretion on the part of agency officials. For example, under

the Littleton scheme, a license application may be denied

only if the applicant is under age 18; has provided false

information in connection with the application; owns,

operates, or is an adult business that has lost its adult-

* Justices Stevens and Kennedy joined Justice O’Connor’s opinion

on the question of Freedman’s application. Justices Brennan,

Marshall, and Blackmun concurred in the judgment but would

“Have applied all of the Freedman safeguards (see FW/PBS, 493

U.S. at 238-39 (Brennan, J., concurring in the judgment)), whereas

Justices White and Rehnquist (see id. at 244 (opinion of White, J.))

and Scalia (see id. at 250-264 (opinion of Scalia, J.)) would not

have applied any of the Freedman safeguards.

8

business license in the state within the past year; has operated

an adult business found to be a public nuisance in the state

within the past year; is a corporation not in good standing or

authorized to do business in the state; owes taxes, fees, fines,

or penalties assessed in relation to an adult business; does not

have a required sales tax license; or has been convicted of

specified sex crimes or crimes connected with another adult

business within the past five years. See Littleton City Code

(hereinafter “LCC”) Sections 3-14-8 and 3-14-2, reprinted in

Petitioner's Brief at Br. App. 28a-30a and 12a-20a,

respectively. For another example of an adult-business

licensing scheme that properly curtails the discretion of local

officials, see Union Township, Ohio, Resolution 00-22(F)(2),

reprinted at http://www.union-township.oh.us/Resources

/Resolution%2000-22.pdf.’

Criteria such as these have nothing to do with the

content of any speech, and whether an applicant meets them

is objectively determinable. This contrasts sharply with

schemes that do allow for discretion, such as the ordinance

struck down in Lakewood vy. Plain Dealer Publishing Co..,

486 U.S. 750 (1988), which gave the mayor “unfettered

discretion” to deny mnewsrack-placement permits and

“unbounded authority” to place additional conditions on

granted permits, see id. at 772. It is hard to imagine how,

under the Littleton ordinance, an agency official would

manufacture an applicant’s underage status or a tax debt or a

sex-crime conviction in order to deny a license application.

The lack of a true nexus between these adult-business

licensing schemes and speech content is further evidenced by

the fact that the schemes do not target only “adult speech”

* Resolution 00-22 is currently at issue in Deja Vu of Cincinnati,

L.L.C. v. Union Township Board of Trustees, 326 F.3d 791, 800

(6th Cir. 2003), rehearing granted and opinion vacated (Aug. |,

2003).

9

businesses, but also adult businesses that do not engage in

expressive activity. For example, Littleton’s licensing

requirements apply to adult motels and “sexual encounter

establishments.” See LCC Sections 3-14-2 and 3-14-4,

reprinted in Petitioner’s Brief at Br. App. 12a-20a and 23a.

Similar ordinances across the country likewise apply (or have

applied) to non-expressive adult businesses. See, e.g.,

FW/PBS, 493 U.S. at 220 (applied to adult motels, sexual

encounter centers, and escort agencies); Essence, Inc. v. City

of Federal Heights, 285 F.3d 1272, 1277 n.1 (10th Cir. 2002)

(applied to adult motels and_ sexual encounter

establishments); Boss Capital, Inc. v. City of Casselberry,

187 F.3d 1251, 1257-59 (11th Cir. 1999) (applied to adult

motels); Lady J. Lingerie, Inc. v. City of Jacksonville, 176

F.3d 1358, 1368 (llth Cir. 1999) (applied to escort

agencies); East Brooks Books, Inc. v. City of Memphis, 48

F.3d 220, 222 n.2 (6th Cir. 1995) (applied to adult motels,

escort agencies, and sexual encounter centers). Any

suppression of speech is incidental to the permissible

fulfillment of a government objective that is wholly content-

neutral: ameliorating the secondary effects known to be

caused by a class of businesses, regardless of whether those

businesses are expressive.

* “Sexual encounter establishment” is defined in the Littleton

ordinance as a “business or commercial establishment, that as one

of its primary business purposes, offers, for any form of

consideration, a place where two (2) or more persons may

congregate, associate, or consort for the purpose of ‘specified

sexual activities’ or the exposure of ‘specified anatomical areas’ or

activities when one or more of the persons is in a state of nudity or

seminude.” An adult motel is not included in this definition

merely “by virtue of the fact that it offers private rooms for rent.”

See LCC Section 3-14-2, reprinted in Petitioner's Brief at Br. App.

12a-20a.

10

Such schemes, because they involve virtually no

danger of censorship, are properly held to lesser scrutiny than

censorship schemes. This is true whether or not these

schemes are labeled “content-neutral.” See, e.g., Renton, 475

U.S. at 47-48 (an adult-business zoning ordinance aimed not

at content but at secondary effects is “completely consistent

with [this Court’s] definttion of ‘content-neutral’ speech

regulations”); Alameda Books, 535 U.S. at 440-41 (plurality

opinion) (distinction between content-neutral and content-

based regulation of adult speech rests on whether the

regulations are motivated primarily by speech content or by

its secondary effects); id. at 448-49 (Kennedy, J., concurring)

(zoning regulations applicable only to adult businesses are

content-based, but should be subject to the same scrutiny as

are content-neutral regulations because of their “prima facie

legitimate purpose” of decreasing secondary effects and not

speech); Erie, 529 U.S. at 295-96 (plurality opinion)

(scrutinizing ban on nude dancing as content-neutral because

it was enacted to combat secondary effects of adult

entertainment businesses rather than to suppress a message).

However denominated, the lower risk such schemes present

justifies reduced judicial oversight.

Nor can respondents raise the specter of “prior

restraint” in order to justify heightened review. Because

these ministerial licensing schemes are not designed to—and

do not—suppress speech on the basis of its content, they are

not “prior restraints” as this Court has used that term. Under

this Court’s jurisprudence, this latter term is limited to those

regimes that include content-based decisionmaking by

officials using discretionary judgment. See Southeastern

Promotions, 420 U.S. at 554. And it is_ these

characteristics—content review and broad discretion—that

render censorship schemes like the one in Freedman subject

to stricter scrutiny. Their absence here justifies the

application of intermediate scrutiny—a form of oversight that

—_ — —— <=

strikes a reasonable balance between the slight risks of

censorship and the substantial governmental interests in

combating secondary effects.

C, Prompt access to court, rather than

Freedman’s_ speedy-judicial-cetermination

requirement, suffices to protect the First

Amendment interests of adult businesses.

Decisions made under non-content-directed licensing

schemes are presumptively valid, see FW/PBS, 493 U.S. at

229 (opinion of O’Connor, J.), and so it is unnecessary—and,

in fact, improper—to place the entire burden of justification

on the government. In accordance with this understanding of

the differences between the licensing scheme in FW/PBS and

the censorship scheme in Freedman, Justice O’Connor’s

opinion in FW/PBS properly concluded that the licensing

scheme at issue merited application of only. “some of the

Freedman standards.” Waukesha, 531 U.S. at 281. The

scheme need not, for example, place on the government the

burden of seeking judicial review and the burden of proof in

court. FW/PBS, 493 U.S. at 230 (opinion of O’Connor, J.).

But it must provide that the administrative decisionmaking

happens in a reasonably brief period of time. /d. at 228.

And it must ensure “the possibility of prompt judicial

review.” Id.”

* The amici States note that Littleton’s current licensing scheme

satisfies the administrative-delay prong of Freedman and FW/PBS.

See LCC Section 3-14-8, reprinted in Petitioner’s Brief at Br. App.

28a-30a (final administrative decision guaranteed within 40 days

of application date). This brief also assumes that the Littleton

ordinance satisfies the test set forth in Renton for determining

whether a regulation applicable only to adult businesses is a valid

time, place and manner restriction designed to reduce the

secondary effects arising out of such businesses. See id., 475 U.S.

at 47-50. As in FW/PBS, 493 U.S. at 223 (opinion of O'Connor,

J.), the Court need not reach that issue.

12

In FW/PBS, this Court did not need to decide exactly

how “prompt judicial review” would be accomplished in the

licensing context. Instead, Justice O’Connor’s opinion

extensively discussed the failure of the scheme at issue to

provide adequate time limits to ensure sufficiently prompt

administrative decisions. See id. at 226-29. After setting out

in general terms the standards to be applied to the licensing

scheme, and describing the scheme’s failure on_ the

administrative-delay prong of Freedman, the opinion added

only the bare statement that the scheme also failed to

“provide an avenue for prompt judicial review.” See id. at

229. Given this conclusion, there was no need to elucidate

the specific contours of “prompt judicial review” in the

context of a non-content-directed licensing scheme. The

amici States submit that prompt access to court would satisfy

the First Amendment.

A licensing scheme such as _Littleton’s—which

targets secondary effects of adult businesses, expressive and

non-expressive alike, employs objective criteria that leave no

meaningful discretion in the hands of government officials or

agencies, provides for timely administrative decisions, and

provides for direct and prompt review of those decisions’ —

has much more in common with adult-business zoning

ordinances like the one upheld in Renton than it does with a

Freedman-like censorship scheme. It is presumptively valid,

and it must not be sacrificed too easily in the name of the free

speech rights of businesses known to cause serious harm to

the surrounding community.

Instead, the governmental interest in protecting

property, reducing crime, and generally maintaining or

improving the quality of life of residents must be balanced

* See LCC Sections 3-14-8(B)(3), reprinted in Petitioner’s Brief at

Br. App. 30a.

13

against the risks to First Amendment rights of the regulated

businesses. And, the opportunity for censorship, the only

First Amendment harm at issue, is vanishingly slight where,

as here, the licensing decisions are based on objective, non-

content-based criteria. Consequently. the affected businesses

do not need the level of protection offered by Freedman,

whose standards were developed specifically for content-

based censorship schemes. Conversely, the governmental

interest in fighting secondary effects of adult businesses is

great, and a government must be allowed to implement a

licensing scheme aimed at those effects without procedural

requirements that will tend to undermine the effectiveness—

or threaten the very existence of—the scheme. In the case of

the above-described type of licensing scheme, a fair

balancing occurs when the scheme provides for reasonable

time limits on administrative decisions and a way for

businesses to obtain prompt access to court review if they so

desire.

The danger that local officials might use a licensing

prograni like Littleton’s to interfere with any adult business’s

expressive rights is no greater than that same danger in

relation to any law of general applicability, such as a tax law

or a fire code provision. And these latter laws, of course, are

not subject to strict judicial scrutiny merely because they are

applied to an adult business. See generally U.S. v. O'Brien,

391 U.S. 367 (1968) (facially speech-neutral law prohibiting

certain conduct only incidentally affected speech and thus

was subject only to intermediate scrutiny); Arcara v. Cloud

Books, Inc., 478 U.S. 697 (1986) (First Amendment not

implicated by closure of adult bookstore pursuant to

generally-applicable, facially speech-neutral public health

regulation). There is no reason to impose such scrutiny on

the ministerial licensing decisions here. In fact, the only true

potential harm the regulations present—which is not even a

First Amendment danger—is the possibility of erroneous

licensing decisions. And given that the regulations provide

14

for ministerial decisions based on content-neutral criteria—at

least in the type of licensing schemes that the amici States are

here discussing—applicants who are wronged should have

little difficulty demonstrating that error to a court, and even

obtaining interim relief while review is pending.

D. Requiring a guarantee of speedy judicial

determination would significantly impede

the ability of state and local governments to

address the secondary effects of adult

businesses.

As noted above, state and local governments have

strong—and wholly legitimate—interests in preventing or

diminishing the negative secondary effects associated with

adult businesses, including crime and_ neighborhood

deterioration. Governments may constitutionally effectuate

those interests by enacting laws aimed precisely at those

secondary effects. They do so most effectively (and most

lawfully) when they single out adult businesses as a class.

See, e.g., Renton, 475 U.S. at 52 (praising Renton’s

narrowly-tailored classification to affect only the businesses

producing the unwanted secondary effects).

Making a speedy-judicial-determination guarantee a

condition of court approval of otherwise constitutional

licensing schemes, however, places the governments in a

difficult position, and presents substantial separation-of-

powers problems. First, States will have to decide whether to

attempt to impose expedited-ruling laws on courts deciding

adult-business license issues, to the detriment of other cases

on the dockets that may be even more pressing but that will

not get such special treatment. There will doubtless be other

pending cases involving claims of constitutional violations—

and some of those will certainly be First Amendment claims,

such as time-place-manner disputes. Since censorship is

such a remote possibility with respect to nondiscretionary,

15

non-content-directed licensing schemes, there is no sound

basis for giving special, expedited treatment to these adult

business licensing decisions by thrusting them to the front of

the line when everyone else must wait his or her turn.

Second, as some courts have recognized, state

legislatures run afoul of separation-of-powers principles

when they attempt to impose court decisionmaking deadlines.

See, e.g., Allen v. Butterworth, 756 So.2d 52 (Fla. 2000)

(rejecting state legislature’s imposition of deadlines for

postconviction motions as violation of separation of powers

under state constitution); Complaint Against Grady, 348

N.W.2d 559 (Wisc. 1984) (holding state statute imposing

deadlines for judicial decisionmaking to be violation of

separation of powers under state constitution); Coate vy.

Omholt, 662 P.2d 591 (Mont. 1983) (same).

If speedy-decision laws are rejected by state courts, or

a State decides it cannot in good faith enact such laws, local

governments are left with two options: offering provisional

licenses or stays, and thus suffering the secondary effects

while appeals by non-qualified adult businesses are decided,

or abandoning altogether the adult-business licensing scheme

and thus forgoing perhaps the best method available for

minimizing secondary effects. But there is no sound basis

for imposing the speedy-decision requirement in the first

place. Given the non-discretionary, non-content-based nature

of the criteria these otherwise constitutional licensing

schemes employ, the _ possibility of content-based

decisionmaking is virtually non-existent, and an adult

business’s First Amendment rights are thus already

sufficiently protected from the risk of censorship.

16

Il. In The Alternative, If Assurance Of A Speedy

Judicial Determination Is Required, The Court

Should Recognize That Provisional Licenses (Or

The Equivalent) Pending Completion Of The First

Level Of Judicial Review Will Alleviate Any First

Amendment Concerns.

If this Court nonetheless concludes that the Freedman

speedy-judicial-determination requirement applies in the

adult-business licensing context, the Court should also

recognize that allowing a business to operate pending judicial

review is an acceptable alternative to a guaranteed speedy

judicial determination. As the Court recently noted, the

“typical concern” of a business already operating but facing

loss of a license is “not the speed of court proceedings, but

the availability of a stay of adverse action during the

pendency of judicial review, however long that review

takes.” Waukesha, 531 U.S. at 285-86 (also noting that

“[s]wift judicial review is the remedy needed by those held

back from speaking”). See also National Socialist Party of

America v. Village of Skokie, 423 U.S. 43, 44 (1977) (holding

that, absent “immediate appellate review” under Freedman,

government “must instead allow a stay”). Allowing the

business to continue operating fully addresses this “typical

concern.”

The only potential constitutional evil lurking in these

situations is the wrongful suppression of speech. If no

speech is suppressed pending judicial review, however, then

a business’s First Amendment rights cannot possibly be

unconstitutionally burdened. An adult business may proceed

with its plans to open (in the case of a license denial) or may

continue to operate (if a license has been nonrenewed) until a

judicial decision is rendered. No reason will exist to upset a

court’s normal docket management or force the parties to

litigate at an accelerated (and thus perhaps more costly) pace.

17

The Court should provide guidance on this issue,

should the speedy-judicial-decision standard be imposed.

At least one circuit court has concluded that the uncertainty

during the judicial review process—even with a provisional

license—will be “chilling” to the affected business operators.

See Deja Vu of Cincinnati, L.L.C. v. Union Township Board

of Trustees, 326 F.3d 791, 800 (6th Cir. 2003), rehearing

granted and opinion vacated (Aug. 1, 2003).’ Temporary

permits in lieu of fast judicial decisions, however, are

unlikely to deter owners from applying for licenses or license

- renewals, given their stakes in their businesses. See FW/PBS,

493 U.S. 229-30 (opinion of O’Connor, J.). In fact,

Respondent itself advocates this result. See Brief in

Opposition 13-14.

Nor can one buttress the First Amendment claim by

asserting that the rights under the license are too uncertain

because the license is only temporary and lasts only during

the pendency of judicial review. Any such uncertainty is

minimal, and largely remediable by business owners

themselves. Where a licensing scheme is aimed only at

secondary effects of adult businesses, allows for no

significant discretion on the part of the decisionmaker, and

involves known, objectively-determinable licensing criteria,

a business owner should have little difficulty ascertaining the

likelihood that his application will be granted. In light of

this, the only “uncertainty” that an adult business could claim

is economic uncertainty in the face of pending litigation. But

business uncertainty is not a First Amendment concern in and

of itself. “The inquiry for First Amendment purposes is not

” But see 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108,

1115 (9th Cir. 1999) (automatic stay pending appeal would be

constitutionally acceptable); ///26 Baltimore Blvd., Inc. v. Prince

George's County, Md., 58 F.3d 988, 1001 n.18 (4th Cir. 1995) (en

banc) (constitutional problem avoided if adult bookstore permitted

to operate pending appeal), cert. denied, 516 U.S. 1010.

18

concerned with economic impact.” See Renton, 475 U.S. at

54 (quoting Young, 427 U.S. at 78). The First Amendment is

concerned with expressive conduct, not business uncertainty,

and those who hold a provisional license are entirely free to

engage in their desired form of such conduct.

In sum, if the Court decides that an adult-business

licensing scheme must provide for speedy judicial

determination of challenges to adverse licensing decisions, it

should also make clear that any means whereby the effect of

an adverse decision is postponed until judicial review is

completed—meaning that an adult business may engage in

expressive conduct as if it had received a_ favorable

decision—obviates the need for a court to rush to judgment

on a licensing decision. :

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CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

State Solicitor

*Counsel of Record

REBECCA L. THOMAS

Assistant Solicitor

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Amici States

Of Counsel:

DAN SCHWEITZER

National Association of

Attorneys General

750 First St., NE, Suite 1100

Washington, D.C. 20002

202-326-6010

December 2003