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

“Supreme cout, U.S. |

™ FILED

(70) JAN 26 2004

No. 02-1609 OFFICE OF THE CLERK

Bu the

Supreme Court of the Gnited States

Ciry oF LITTLETON,

Petitioner,

Vv.

Z.J. Girrs D-4, LLC, a Colorado Limited

Liability Company d/b/a CuRISTAL'S,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF AMICUS CURIAE

FIRST AMENDMENT LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENT

H. Louis SirKIN

Counsel of Record

JENNIFER M. KINSLEY

SIRKIN PINALES SCHWARTZ LLP

105 West FourTH STREET

Surre 920

Cincinnati, OH 45202

(513) 721-4876

Counsel for Amicus Curiae First

Amendment Lawyers Association

Becker Gallagher Legal Publishing, Inc.

800.890.5001

:

TABLE OF CONTENTS

Table of Authorities . 0... ccc ccc eee eens ii

Interest of Amicus Curiae ..........-52550 000s l

Summary of Argument .........-.-.-0-ee e005 2

eer rrrrre rr rere eee eee ee ee 3

I. The Tenth Circuit Correctly Construed the

Court’s Prompt Judicial Review Requirement

To Mandate A Prompt Judicial Resolution. .... 3

A. Like the Ordinance at Issue in FW/PBS,

Littleton’s Adult business Licensing

Scheme Constitutes a Content-Based, Prior

Restraint on Speech .........---2+55: 4

B. Prior Restraints Must Include a Guarantee

of Prompt Judicial Resolution to Pass

Constitutional Muster ............++--. 8

C. Absent a Guarantee that a Judicial Decision

will be Promptly Reached, Licensing

Schemes that Target Protected Expression

May Be Used as a Subterfuge for

Censorship ...... cee cece cccees 13

cee newees 0544954025 0888S 18

ii

TABLE OF AUTHORITIES

Cases

Alexander v. United States, 509 U.S. 544 (1993) .. 6

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) . 6

Aurilio v. Sweeney, 24 Conn. L. Rptr. No. 7, 222

(Conn. Super. Ct. 1999) ........--e2 +05: 15

Baby Tam & Co. v. Las Vegas, 154 F.3d 1097 (9"

Cle. UMD wc cccnsvevsenseessueeens 4

BJS No. 2, Inc. v. City of Troy, 87 F.Supp.2d 800

(S.D. Ohio 1999)... 26... eee eee ee ees 14

Boss Capital, Inc. v. Casselberry, 187 F.3d 1251 (11"

Cie. BG nw ccc cece eeeseeeseeeeeune 4

Burstyn v. Wilson, 343 U.S. 495 ) ee 3

City News & Novelty, Inc. v. City of Waukesha, 531

U.S. ZB (QOD) 2 wc cee rece v cere vcee 4

City of Lakewood v. Plain Dealer Publishing Co. , 486

U.S. 750 (1988) .. 0... eee eee eee eee 5

Deja Vu of Nashville, Inc. v. Metropolitan Gov't of

Nashville and Davidson County, 274 F.3d 377 (6"

Cir. 2001), cert. denied, 535 U.S. 1073 (2002) . 15

Elrod v. Burns, 427 U.S. 347 (1976) ........-: 17

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

ill

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

Lovell v. City of Griffin, 303 U.S. 444 (1938)... .. 5

Nightclubs Inc. v. City of Paducah, 202 F.3d 884 (6"

Se rr rrr rr rere eer 16

Redner v. Dean, 29 F.3d 1495 (11" Cir. 1994)... 13, 14

Thomas v. Chicago Park Dist., 534 U.S. 316

PP CUCebeeeGeeecoeeescocess passim

TK’s Video, Inc. v. Denton County, 24 F.3d 705 (5"

DTD Diseseeeeceseccocceccceces 17

ZJ Gifts, Inc. v. City of Littleton, 311 F.3d 1220 (10"

DOU ce he beeaeeeeeeeeeeeeocces 10

Statutes

United States Constitution, First Amendment . . passim

Cal. Code of Crim. Procedure § 1094.8 ........ 11

Tenn. Code Ann. § 7-5-1110(d)........... 11-12

Rules

Supreme Court Rule 37.3(a) ........--+-+55- l

Other

Adam Goldman, Competition Hurting Las Vegas

Strip: strippers-er, “clubs”, Cincinnati Enquirer,

April Be 2003, at

http://www.enquirer.com/editions/2003/04/27/biz_r

isquebusiness.html ..... 2... 6660s eee eres 16

INTEREST OF AMICUS CURIAE'

The First Amendment Lawyers Association (“FALA”) is

an Illinois-based, not-for-profit organization comprised of

over 150 attorneys who routinely represent businesses and

individuals that engage in constitutionally protected

expression. FALA’s members practice throughout the United

States and Canada in defense of the First Amendment and, by

doing so, advocate against governmental forms of censorship.

Member attorneys frequently litigate the constitutionality of

local adult business licensing schemes, often in light of the

prompt judicial review requirement that is at issue here. In

fact, each of the Court’s two previous cases addressing the

FW/PBS prompt judicial review safeguard were argued by

FALA members, and the Respondent in this matter is

represented by two FALA attorneys. Given the nationwide

span of their experience and the specialized nature of their

practices, FALA attorneys can better comment upon the

practical application of licensing ordinances like Littleton’s

than perhaps any other singular person, body, client, or

corporate entity.

| This brief was authored in its entirety by counsel for amicus

curiae First Amendment Lawyers Association (“FALA”). No

other person or entity besides FALA, its members, or its counsel

have contributed to the costs of preparing and submitting this brief.

Counsel anticipate, however, that Deja Vu Nashville, Inc. may

offset the printing costs associated with the brief once it has been

filed.

Counsel for both Petitioner and Respondent have filed blanket

consents to the filing of amicus briefs. This brief is therefore

submitted pursuant to Supreme Court Rule 37.3(a).

l

2

FALA’s members have repeatedly observed and battled

governmental abuses of licensing ordinances throughout the

country, particularly where a prompt judicial determination of

the propriety of those abuses is neither guaranteed nor, as in

most cases, available at all. Should the Court reverse the

decision of the Tenth Circuit and hold that cities need not

mandate a prompt resolution of the judicial review process,

these abuses are likely to continue. Such a result not only

adversely affects the clients of nearly every FALA attorney,

but it also contravenes the First Amendment protections

FALA and its members are dedicated to preserving.

SUMMARY OF ARGUMENT

The City of Littleton’s licensing ordinance conditions the

ability of an adult business owner to speak upon the approval

of the government and therefore constitutes a prior restraint

under Freedman v. Maryland, 380 U.S. 51 (1965), and

FW/PBS v. City of Dallas, 493 U.S. 215 (1990). The Court’s

decision in Thomas v. Chicago Park Dist., 534 U.S. 316

(2002), fails to undermine that conclusion. Thomas analyzed

a content-neutral permitting requirement that applied equally

to speech and non-expressive activities conducted only in a

public park. As such, the ordinance considered in Thomas

and the Court’s analysis of that ordinance are of little value to

the issues in this case. Rather, the ordinance here mirrors the

adult business licensing scheme treated as a prior restraint in

FW/PBS. It requires a business Owner oF other potential

speaker ta, seek and obtain the government’s stamp of

approval before he can communicate.

To survive constitutional scrutiny, prior restraints like the

one enacted by Littleton must include, at a minimum, a

provision for prompt judicial review. Freedman, 380 U.S. at

51. Merely providing access to the courts in the event a

3

restraint is improperly imposed is insufficient to satisfy this

requirement. Because delay is frequently used as an indirect

method of censorship, a judicial decision must be reached

within a fixed and reasonable period of time to ensure that

speech is not wrongfully suppressed.

ARGUMENT

I. The Tenth Circuit Correctly Construed The Court’s

Prompt Judicial Review Requirement To Mandate

A Prompt Judicial Resolution.

Consistent with the First Amendment, the Court has

historically disfavored prior restraints upon protected

expression. See, e.g., Burstyn v. Wilson, 343 U.S. 495

(1952). While such restraints take various forms, one

technique frequently employed by governments to limit

speech, either directly or indirectly, is a licensing system. In

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

determined that licensing schemes targeting free expression

are unconstitutional unless they contain certain procedural

safeguards designed to limit the government’s discretion and

minimize the length of any restraint. The Court reaffirmed

this essential holding twenty-five years later in FW/PBS v.

City of Dallas, 493 U.S. 215 (1990).

At issue in FW/PBS was a Dallas ordinance that required

licenses of certain sexually oriented businesses, some of

which, as disseminators of expressive materials, were entitled

to First Amendment protection and some of which, as mere

providers of sexual stimulation, were not. /d. at 224.

Treating the ordinance as one which “largely targets

businesses purveying sexually explicit speech,” the Court held

that, at a minimum, the ordinance must provide for the

prompt issuance of a license and prompt judicial review of an

4

adverse licensing decision to survive. /d. at 228. These

protections were deemed necessary even though the ordinance

only permitted the licensor to make ministerial decisions, and

not an assessment of content, in determining whether to issue

a license. Jd. at 229.

There has been much confusion about the meaning of the

prompt judicial review requirement in the fourteen years since

FW/PBS was decided. See, e.g., Baby Tam & Co. v. Las

Vegas, 154 F.3d 1097 (9th Cir. 1998) (holding that the

prompt judicial review requirement mandates a prompt

judicial decision on the merits); Boss Capital, Inc. v.

Casselberry, 187 F.3d 1251, 1255-1267 (11th Cir.1999)

(holding that the prompt judicial review requirement mandates

only prompt access to the courts). In fact, the Court has

accepted certiorari on two prior occasions in an attempt to

resolve the dispute. See Thomas v. Chicago Park Dist. , 534

U.S. 316 (2002); City News & Novelty, Inc. v. City of

Waukesha, 531 U.S. 278 (2001). For the reasons that follow,

the First Amendment Lawyers Association believes the Tenth

Circuit correctly construed FW/PBS to require a prompt

judicial resolution, particularly in light of the substantial

reality that licensing schemes are often tacitly used to censor

protected expression. FALA urges affirmance of that

decision.

A. Like the Ordinance at Issue in FW/PBS,

Littleton’s Adult Business Licensing

Scheme Constitutes a Content-Based,

Prior Restraint on Speech.

A proper assessment of Littleton’s licensing ordinance

begins with the inquiry into whether it constitutes a content-

based prior restraint or a content-neutral «time, place, and

manner restriction. As a general observation, licensing

5

mechanisms which condition the ability of a speaker to

communicate on the prior approval of the government have

systemically been condemned ty the Court as prior restraints.

See, e.g., City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988); Lovell v. City of Griffin, 303 U.S. 444,

451-52 (1938). Of particular significance here is the FW/PBS

decision. Because the FW/PBS ordinance primarily applied

to businesses which convey a sexual message, and then

required that those businesses seek the prior approval of the

government before opening, it constituted a content-based

prior restraint presumed to be unconstitutional. FW/PBS, 493

U.S. at 227. No such presumption attaches to truly content-

neutral regulations on the method of speech. The recent

decision in Thomas, wherein the Court excused compliance

with the FW/PBS procedural safeguards for a park permitting

ordinance which did not on its face target speech and which

only applied in public areas, is but one example of this

relaxed analysis.

Without giving short shrift to the issue, it is obvious from

the face of Littleton’s ordinance that it constitutes a content-

based prior restraint under FW/PBS and not, as the City

contends, a time, place, and manner restriction under

Thomas. To be sure, the ordinance applies only to a

particular type of business and not to a public location

irrespective of the business’ intended message. Read

together, Thomas and FW/PBS reject the notion that

regulations which target expression in this manner can be

treated as content-neutral. Both the FW/PBS and Littleton

ordinances apply to establishments that convey a similar

2

The City’s contention in this regard is somewhat ironic,

particularly considering that the sole question presented in this case

presumes that FW/PBS and not Thomas applies here.

6

message or promote a similar theme, namely that of human

sexuality, and are therefore content-based.* On the other

hand, the activities potentially implicated by the park permit

requirement in Thomas ranged from a baseball game, to a

family picnic, to, as was the case, a political rally, none of

which shared a common message and some of which were

wholly unrelated to speech. Thomas, 534 U.S. at 322. For

this reason only, the ordinance in Thomas was deemed

content-neutral and subjected to less stringent constitutional

analysis. /d.

In traditional time, place, and manner cases, businesses

engaged in First Amendment activities may operate at some

location or at some period of time without governmental

interference. See, e.g, Arcara v. Cloud Books, Inc., 478 U.S.

697, 706-707 (1986) (finding no constitutional violation where

an adult bookstore precluded from operating at its existing

location as a nuisance remained free to relocate elsewhere);

Alexander v. United States, 509 U.S. 544, 551 (1993)

(upholding federal RICO statute against a First Amendment

3 The Littleton ordinance also calls upon government officials to

make an assessment of cuntent in applying the licensing

requirement. First, by limiting the requirement to only those

bookstores which devote a “substantial or significant” portion, and

not a defined percentage, of their stock in trade, floor space, or

advertising costs to sexually explicit material, the ordinance grants

discretion to the licensor to determine who should apply and who

should not. (Pet. Br. App. 13a-14a.) This decision necessarily

turns upon the content of the materials the business sells. In

addition, the ordinance permits the City Manager to suspend and

ultimately revoke an existing license where “adult entertainment”

is provided after hours or where other violations of the regulatory

provisions occur. (Pet. Br. App. 31a-32a.) Inherent in this

determination is also a consideration of content.

~

ae ee See 2

7

challenge because business owner could “open new stores,

restock his inventory, [] hire staff . . . [and] go back into the

adult entertainment business tomorrow”). For example, when

an adult cabaret is subject to zoning requirements excluding

it from the central business district or requiring it to be 1000

feet from a school, it may still locate in an industrial district

or near commercial uses without approval from the

government. This is not so when a licensing requirement

exists. Rather than simply precluding a business from

locating in certain areas, a licensing ordinance precludes a

business from opening at_all without the government's

permission. This is a classic prior restraint.

Therein lies the fundamental difference, thus far ignored

by the City, between the park permit requirement in Thomas

and the City of Littleton’s licensing scheme. Because the

ordinance addressed in Thomas applied only to public parks

and not to other public fora or private property generally, a

speaker denied a permit to communicate his message in the

park could nevertheless convey his expression by moving

inside the walls of a public building or down the street to

private property. The same cannot be said of the Littleton

ordinance. Because Littleton’s licensing scheme impacts a

business’ entire ability to operate, and not merely to operate

in its desired location, it cannot constitute a time, place, and

manner restriction subject to reduced scrutiny under 7homas.

In addition, because the plain terms of the ordinance apply to

speech and not location, it is not, as the City of Littleton

espouses, content-neutral.

To say that the ordinance is nevertheless a content-neutral

time, place, and manner restriction because it includes within

its scope adult uses that deserve no free speech protection,

i.e., escort agencies, sexual encounter centers, and the like,

is to disregard the Court’s clear pronouncement in FW/PBS.

8

To be sure, the Dallas licensing scheme at issue in that case

also applied to businesses which arguably fall outside the

ambits of the First Amendment, yet the Court treated the

ordinance as one which “targets . . . speech.” FW/PBS, 493

U.S. at 224 (noting that the ordinance applied to “escort

agencies and sexual encounter centers” in addition to adult

businesses protected by the First Amendment). Equally

disingenuous is the argument that an ordinance which permits

only ministerial licensing decisions, as opposed to denials

based upon content, adequately protects speech such that no

judicial review is needed. Justice O’Connor plainly observed

that the Dallas ordinance in FW/PBS delegated only

ministerial functions to the licensor, but still mandated that the

ordinance provide swift and meaningful review of the

licensor’s decisions. Jd. at 229. FW/PBS therefore

establishes a rule with regard to prior restraints, to which

Thomas is the antithesis not the exception. Where a licensing

scheme imposes a prior restraint on protected speech, as the

Littleton ordinance does, prompt judicial review must be

provided.

B. Prior Restraints Must Include a Guarantee

of Prompt Judicial Resolution to Pass

Constitutional Muster.

The question then becomes what is meant by the term

“prompt judicial review”? Is it a prompt judicial

determination, as the Tenth Circuit and others have held, or

is it merely the ability to access the courts shortly after a

license is denied, suspended, or revoked? Both the Court's

prior pronouncements and practical concerns about the First

Amendment dictate that the former is the more logical and

appropriate view.

a -——

9

At its inception, the prompt judicial review requirement

was intended to guarantee swift decision-making by the

courts. Freedman, 380 U.S. at 58 (“because only a judicial

determination in an adversary proceeding ensures the

necessary sensitivity to freedom of expression, only a

procedure requiring a judicial determination suffices to

impose a valid final restraint”) (emphasis added).

Undergirding the requirement was the concern that an

erroneous license denial without the promise of reversal by a

court not only served to directly censor protected material,

but might also deter individuals from even attempting to speak

at all. Jd. Given the potential for both direct and indirect

censorship, the Court in Freedman required not only that

prompt judicial review be guaranteed, but that the licensor

reach its decision within a fixed, short period of time and that

government bear the burden of going to court to prove the

correctness of that decision. /d. at 58-60.

The concern for suppressed speech lingered in FW/PBS,

but was insufficient to justify full application of all three

Freedman guarantees. Because the ordinance at issue in

FW/PBS required the licensor to perform only the ministerial

function of granting or denying a license, and did not permit

a consideration of content in reaching that decision, a plurality

of the Court determined that the third prong of Freedman --

that the government bear the burden of going to court -- need

not apply. FW/PBS, 493 U.S. at 229-230. In this regard, a

plurality of the Court modified the Freedman standards to

account for the fact that the FW/PBS ordinance was not a

direct mechanism of censoring a singular, unpopular work,

but rather utilized neutral criteria to implement a speech-

related licensing scheme. This abbreviated Freedman test

discounts the original procedural safeguards based on the fact

that a licensing scheme, as opposed to a censorial board, is a

more indirect method of limiting speech.

10

Aside from removing the third component of the

Freedman safeguards, Justice O’Connor’s plurality opinion in

FW/PBS evidences no intent to weaken the prompt judicial

review requirement from the prompt decision it originally

mandated. The City and its amici make much of the terms

“availability” and “possibility” that appear on isolated

occasions in the opinion, arguing that these terms support a

less restrictive interpretation of the requirement. As the

Tenth Circuit rightly held, however, these terms refer to the

identity of the party invoking the judicial review mechanism

and not to the nature of the review itself. Z/ Gifts, Inc. v.

City of Littelton, 311 F.3d 1220, 1236 (10th Cir. 2002). In

Justice O’Connor’s estimation, Freedman mandates that

prompt judicial review be “available” and “possible” in the

event of an adverse decision. FW/PBS, 493 U.S. at 227-28.

These terms refer to the fact that the review is at the speaker’s

option. If the speaker chooses to seek a prompt judicial

resolution, it must be available to him from the courts.

In dispensing with the requirement that the governmeut

bear the burden of going to court when no singular work is

threatened, the Court acknowledged that a business that

cannot operate because its license application was denied has

every reason, economically and politically, to pursue judicial

review. FW/PBS, 493 U.S. at 229-230. The City concedes

this distinction, recognizing that the stakes may indeed be

elevated when an entire operation, and not merely a single

communication, may be suppressed. (Pet. Br. 14.) As a

practical matter, it is precisely because so much is at stake

that a prompt judicial determination is needed. Unlike

Freedman, where the speaker’s ability to communicate his

message through other means or in another forum remained

intact, a licensing scheme makes the business owner’s entire

ability to communicate contingent upon governmental

approval. Even the slightest mistake, however honest or

11

invidious it might be, irreparably silences the speaker and

censors the message. The ability to file a lawsuit in court,

absent some guarantee that there will be a swift resolution of

that suit, in essence promises nothing to those whose speech

is stifled under the strong arm of government.

Except in cases of discretionary writs, where the court

may decline to review the case at all, the availability of

prompt access to the courts is a redundancy. The courts are

always open; the clerks always accept filings that conform to

the rules and are accompanied by the requisite fee; lawsuits

are filed against the government every day. It is precisely

because this type of prompt access is inherent in our judicial

system that the term “prompt judicial review,” when used in

a First Amendment context, must mean something more.

Otherwise, the requirement offers no protection at all to

potentially silenced speakers.

The government complains that it will not be able to

comply with a directive that judicial decisions in First

Amendment licensing cases be reached promptly. This, it

contends, will lead to a complete inability to regulate sexually

oriented businesses. Yet the government need not worry that

it will be unable to reform state law to ensure a prompt

judicial resolution. The number of cities desiring to license

sexually oriested establishments is high. (Pet. Br. 38 ,“more

than 30 cities [in Colorado] employ adult business licensing

procedures similar to Littleton’s”)). Their collective voice

will likely have considerable impact upon the state-wide

legislative bodies that enact jurisdictional statutes and other

rules governing the state courts. In fact, perhaps in

anticipation of the Court’s ruling on the issue, various states

have reformed their state laws in order to provide prompt

judicial decision-making in First Amendment licensing cases.

See, e.g., Cal. Code of Crim. Procedure § 1094.8; Tenn.

12

Code Ann. § 7-5-1110(d). Therefore, a decision that the First

Amendment requires a prompt judicial determination is not a

death blow to the government’s supposed interest in

combating the secondary effects of adult businesses, as

suggested by Littleton and its amici.

Equally unfounded is the government’s concern that

requiring prompt judicial decision-making in adult business

licensing schemes will elevate sexual expression over political

speech. Notwithstanding Thomas, it is safe to presume that,

should a city enact a licensing ordinance which on its face

targets political or religious uses deserving of the highest form

of First Amendment protection, that ordinance will be

analyzed under the mandates of FW/PBS and Freedman.

When a city undertakes, however, to impose less restrictive,

content-neutral time, place, and manner regulations on speech

which occurs on its own property, these regulations will be

inspected more flexibly. Indeed, it is the action of the

government and not the content of the speech that determines

the appropriate level of constitutional scrutiny to apply. In

this regard, it was not the political nature of the expression in

Thomas that dictated the outcome there, nor should the sexual

nature of the speech at issue dictate the outcome here.

Rather, the focus should be upon the government’s conduct

and its potential impact upon speech.

The concern for latent censorship, whether by denial of a

license or by implicit discouragement of potential speakers

from seeking licenses, adheres as much today as it did in

Freedman and FW/PBS. Merely allowing censored speakers

to enter the courthouse without requiring meaningful and

timely review fails to protect the First Amendment. If there

is to be a judicial determination at all, it must be prompt.

That was the Court’s express pronouncement in Freedman, a

13

ruling which remained unchanged in FW/PBS, and that should

again be the Court’s pronouncement here.

C. Absent a Guarantee that a Judicial Decision

Will be Promptly Reached, Licensing

Schemes that Target Protected Expression

May Be Used as a Subterfuge for

Censorship.

It is more than a hypothetical concern that licensing

schemes, however ministerial or routine, may result in

improper suppression of expression. Actual situations

involving amicus FALA’s members and their clients indicate

that this concern is quite real and quite potent.* For example,

in Redner v. Dean, 29 F.3d 1495, 1497 (11th Cir. 1994), a

case from Citrus County, Florida litigated by an FALA

lawyer, the passage of an adult business licensing scheme was

delayed until the day a new adult business was scheduled to

open. Despite the fact that the County was seemingly aware

of the business and had issued all required building and

zoning permits, it waited until the last possible moment to

enact an “emergency” adult business licensing scheme. /d.

When the business refused to comply, the County criminally

cited its owner for three of the first four days it was open,

* Part and parcel with this reality is the distinct possibility that the

licensor will purposefully and improperly apply content-neutral

licensing criteria to affect a content-based result. For example,

there is nothing to prohibit a city from erroneously concluding that

an applicant is late on his taxes or that he was convicted of a

disqualifying crime, thereby silencing the applicant while prolonged

judicial review is pursued. Although the government may claim

that it will not perform its ministerial functions in such an

unscrupulous manner, that promise alone has never been sufficient

to adequately protect constitutional interests.

14

subjecting him to the inconvenience of a trial and the

possibility of criminal penalties. Jd. at 1498. Though the

threat of criminal prosecution is generally sufficient to chill

future expression, the Citrus County owner persevered

through several levels of appeals in the state and federal

courts and ultimately succeeded in invalidating the ordinance

on constitutional grounds. /d. at 1498-99. His ability to

express his fully protected message, however, was threatened

and chilled for the many years that the case was pending in

court.

A similar situation occurred in Troy, Ohio in a case

litigated by the undersigned FALA attorney. There, the City

enacted a conditional use zoning ordinance the day after an

adult cabaret and pool hall opened to the public. The

ordinance operated as a prior restraint by requiring a license

for the business. See BJS No. 2, Inc. v. City of Troy, 87

F.Supp.2d 800, 803-805 (S.D. Ohio 1999). Ten days later,

when the business failed to secure a conditional use permit

under the new restriction, the City revoked the necessary

operational license previously issued to the company. Id. at

804. Following an unsuccessful administrative appeal of the

revocation, BJS challenged the decision in state court and later

by filing a complaint in federal court. /d. Shortly thereafter,

the City petitioned the state court for injunctive relief against

the operation of the business at its current location. Id. The

state court refused to consider the cabaret’s constitutional

challenges to the conditional use ordinance and ordered the

business closed. Jd. Not until the federal court ruled the

ordinance to be an unconstitutional prior restraint was the

cabaret conclusively permitted to engage in its desired,

——— tea,

15

constitutionally protected form of expression. /d. at 809-

810.°

Perhaps one of the most egregious examples of the misuse

of a city’s licensing powers occurred in Nashville. While

litigation challenging the City’s licensing requirement was

pending in federal court, the Metropolitan Government of

Nashville denied fifteen of the eighteen adult business license

applications submitted by businesses who had been

unsuccessful in their request for a preliminary injunction.

(Agenda, April 27, 1999, FALA Br. App. la-8a). Among

the reasons given for the denials were unclean couches, a

broken toilet, the lack of covered trash cans, and an

inadequate supply of hand towels. (/d.) The applicants were

therefore censored from conveying their protected message

until they restocked their restrooms and redecorated their

interiors, and only then if they were successful in petitioning

the government for adult business licenses. This absurd result

occurred under the watchful eye of the federal courts, who

ultimately invalidated Nashville’s licensing ordinance as a

prior restraint. See Deja Vu of Nashville, Inc. v. Metropolitan

Gov't of Nashville and Davidson County, 274 F.3d 377 (6th

Cir. 2001), cert denied, 535 U.S. 1073 (2002). Since the

government engaged in this type of pretextual censorship

> As brought to the attention of counsel by another FALA member,

the State of Connecticut permits similar results. Per the opinion of

the Connecticut Superior Court in Aurilio v. Sweeney, 24 Conn. L.

Rptr. No. 7, 222 (Conn. Super. Ct. 1999), the decision of a police

chief to revoke an occupational license is purely discretionary in

nature and is therefore not subject to the state’s mandamus

procedure. As a result, government officials in Connecticut can

now revoke the licenses of protected adult businesses with no

justification at all and, in so doing, insulate themselves from being

challenged in state court on constitutional grounds.

16

while being challenged in federal court, it is likely that more

egregious abuses occur when the judiciary is otherwise

One abuse that often occurs outside the presence of the

courts is the chilling effect on speech that intensifies in the

wake of increasing governmental intervention. Unlike the

businesses attacked in Citrus County, Florida; Troy, Ohio;

and Nashville, Tennessee, countless other unknown speakers

may elect to forego their right to expression rather than

engage in lengthy court battles over the propriety of the

government’s actions. The Court in Freedman recognized the

need for judicial finality to avoid this type of self-censorship

in the marketplace. Freedman, 380 U.S. at 58 (requiring “a

prompt final judicial decision, to minimize the deterrent effect

of an interim and possibly erroneous denial of a license”).

The need is all the more palpable in today’s economic climate,

where businesses spend upwards of $25 million to build adult

cabarets, nightclubs, and bookstores. See, e.g., Adam

Goldman, Competition Hurting Las Vegas Strip: strippers -er, “clubs A

Cincinnati Enquirer, April 27, 2003, at

http://www .enquirer.com/editions/2003/04/27/biz_risquebusiness html

(noting that cost of new gentlemen’s club in Las Vegas was

$30 million). It is highly unlikely that investors will

contribute such large amounts of capital towards a business

which may not be able to operate until the conclusion of

lengthy court battles, if at all.

Governments sometime argue that the issuance of a

temporary license pending the outcome of judicial review can

partially alleviate the chilling effect that results when a

prompt judicial determination is not guaranteed. See, é.g.,

Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 893 (6th

Cir. 2000). That remedy, however, is inadequate to fully

protect the First Amendment rights of businesses targeted by

—— =

17

prior restraint licensing schemes. A temporary license can be

taken away just as easily as it is granted, with no notice and

within a very short period of time. (See, ¢.g., Pulaski

Township Police Department Letter, FALA Br. App. 9a-10a

(denying permanent license one month after issuance of

temporary license)). Much as prospective speakers will not

invest the resources necessary to operate an adult business on

the promise of uncertain court proceedings, neither will they

contribute towards a temporary license that may not even be

in effect long enough to recoup their initial capital investment.

In this regard, even a temporary license fails to adequately

protect First Amendment rights when not coupled with

expeditious judicial decision-making.

Moreover, imposing a temporary license requirement on

existing businesses pending the final outcome of a potentially

lengthy licensing process improperly alters the status quo

under Freedman. See FW/PBS, 493 U.S. at 227. Most

licensing ordinances require temporary license-holders to

abide by all licensing regulations, including hours of

operation and inspection provisions, while they maintain a

temporary license. Requiring an existing business to comply

with such burdensome and potentially unconstitutional

regulations pending the outcome of an appeal fails to maintain

the status quo as required by Freedman.® Moreover, the adult

business will have suffered irreparable harm and will have

been subjected to an unconstitutional licensing scheme that

suppresses protected expression. Elrod v. Burns, 427 U.S.

347 (1976).

6 The Fifth Circuit accepted this proposition in TK’s Video, Inc. v.

Denton County, 24 F.3d 705 (Sth Cir. 1994).

18

Absent a rule requiring a swift resolution of judicial

proceedings when the government denies a license to engage

in protected expression, the First Amendment rights of

countless businesses and individuals are at risk of being

irreparably harmed. As highlighted by the anecdotes above,

governmental entities across the country have shown that they

are unable to adequately protect the right to free expression on

their own. Licensing schemes are frequently used as a

subterfuge for censorship, particularly when controversial,

sexual expression is involved. Cities attempt to do indirectly

what they cannot do directly. Well-meaning speakers vested

with the full protection of the First Amendment are

unwittingly silenced. And the courts are, for most, a distant

and tedious remedy. The outlook for speech is certainly bleak

if the Court declines to recognize the prompt judicial review

requirement as a mandate for swift decision-making in First

Amendment prior restraint cases.

CONCLUSION

For the reasons set forth in this brief, the Tenth Circuit's

decision construing the prompt judicial review requirement to

mandate a prompt judicial resolution was not only a correct

interpretation of the law, but also the most appropriate

outcome to protect the First Amendment. As amicus curiae,

the First Amendment Lawyers Association urges affirmance.

January 2004

19

Respectfully submitted,

H. LOUIS SIRKIN

(Counsel of Record)

JENNIFER M. KINSLEY

Sirkin Pinales & Schwartz LLP

105 West Fourth Street, Suite 920

Cincinnati, Ohio 45202

(513) 721-4876

Counsel for Amicus Curiae First

Amendment Lawyers Association

APPENDIX A

AGENDA

April 27, 1999

9:00 a.m.

METROPOLITAN ADULT ENTERTAINMENT BOARD

700 SECOND AVENUE SOUTH

HOWARD OFFICE BUILDING NASHVILLE

ELITE REPORTING SERVICES

ANGELA M. SYES, CCR

806 Porter Road

Nashville, Tennessee 37206

(615) 262-9592

Applications for adult entertainment licenses. Deja Vu of

Nashville, 1214 Demonbreun Street.

[p. 11]

MS.BORUM: Our recommendation is that it does not

comply with health inspections. Some of the items on that

health inspection report is: To clean the couches, rest room

walls, fixtures, shower stall; repair commode; provide

la

2a

covered waste containers. Charles, in his inspection, noted a

violation of the 3-foot rule.

MR. CHAIRMAN: All right.

MS. SCHAFFNER: I take it the fourth sheet back in the

packet is the health inspection report?

MS. BORUM: That is correct.

MS.SCHAFFNER: And that inspection indicates that the

couches need to be cleaned. Sanitation of the floors and the

cubicles need to be improved. Covered waste containers need

to be provided throughout the establishment. The commode

in the dressing room needs to be repaired. The rest room

walls and fixtures need to be cleaned. And the shower stall

in the dressing room needs to be cleaned; is that right?

MS. BORUM: _ Yes, ma’am, that is correct.

MS. SCHAFFNER: Then...

MR. CHAIRMAN: Okay. So that it. . .

MS. SCHAFFNER: Then the inspector’s report is the

last sheet; is that right?

MS. BORUM: _ Yes, ma’am.

MS. SCHAFFNER: And the inspector’s [p. 12] finding

upon inspection was that the dancers were in violation of the

3-foot rule; is that correct?

MS. BORUM: That is correct.

3a

MS. SCHAFFNER: On the codes or building there was

no findings since there were no booths; is that right?

MS. BORUM: Yes, ma’am, that is correct.

MS. SCHAFFNER: And as far as the police report, it

was approved?

MS. BORUM: Yes, ma’am.

MS. SCHAFFNER: And the zoning was approved?

MS. BORUM: Yes, ma’am.

MS.SCHAFFNER: I move that we deny this application

on the basis of the health inspection and the - this board’s

inspector’s report.

MR. CHAIRMAN: _It has been moved that we deny this

report based on the - deny this application based on the

inspector’s report and this report from health.

Is there a second?

MS. STEVENS: Second.

MR. CHAIRMAN: Any discussions? All in favor

signify by aye.

(All board members voted aye.)

** *

4a

[p.15]

The next application is Pleasure Palace, 2407 Dickerson

Pike.

Ms. Borum.

MS.BORUM: Our recommendation is that it does not

comply with health codes. Some of these items were: Repair

hand sink; clean walls and all air conditioning vents; clean

storage areas; provide towels.

On your checklist sheet from Charles and myself, we

received a late report yesterday afternoon from the building

inspector who went out and made another inspection and

approved the booth requirements.

MS. STEVENS: What does nonconforming mean?

MS. BORUM: _ Legally, “nonconforming” means that

it was there prior to the funding. It’s grandfathered in.

MS.SCHAFFNER: I take it that the building inspector’s

report disapproval since it. . .

MS.BORUM: It is marked disapproved on the

checklist. I was handed the report about 5 until 4 yesterday

afternoon.

MS. SCHAFFNER: Which disapproves or [p. 16]

approves?

MS. BORUM: _ That approves, as far as the building

inspector.

Sa

MS.SCHAFFNER: So the only thing that’s disapproved,

then, is the health. . .

MS. BORUM: That is correct.

MS. SCHAFFNER: .. . report, which includes a need

for repairing hand sink for ease of cleaning; thoroughly

cleaning the walls in booths and air conditioning vents in the

hall; providing a minimum of 10-foot candles of illumination

at the floor level in booths; cleaning up storage areas;

eliminate all unnecessary items on lower level; and provide

hand towels in the bathrooms; is that correct?

MS. BORUM: _ Yes, ma’am.

MS. SCHAFFNER: I move that this application be

denied on the basis of the health report.

MR. CHAIRMAN: It has been moved that this

application be denied on the basis of the health report. Is

there a second?

MS. STEVENS: Second.

MR. CHAIRMAN: Any discussion?

MR.BANKS: Onequestion, Mr. Chairman. How will

- how do they determine what the candle - how do they

determine that?

[p. 17]

MS. SCHAFFNER: I think it’s a lighting machine, you

know, that...

6a

MR. BANKS: That they carry with them that

determines the lighting?

MS. BORUM: __ It’s measured from the feet.

MR. BANKS: _ That’s all I have.

MR. CHAIRMAN: Okay, all in favor signify by aye.

(All board members voted aye)

MR. CHAIRMAN: Any nays?

Motion carries. This application is denied.

** *

[p. 26]

MR. CHAIRMAN: The next is Club Platinum, 1711

Hayes Street.

MS. BORUM: We recommend disapproval. It does

not comply with health code. Some of those items: Repair

toilet; clean showers; eliminate storage that may attract

rodents and insects.

MS. CHAIRMAN: Everything else is approved?

MS. BORUM: Yes, sir, everything else is approved.

MS. SCHAFFNER: So that includes repairing the toilet

in the men’s rest room, cleaning the floors along the lockers

in the dressing room?

7a

[p. 27]

MS. BORUM: That is correct.

MS. SCHAFFNER: Cleaning the showers in the dressing

room, eliminating storage that may attract rodents and insects

and cause - something.

MS. BORUM: _ Harborage.

MS. SCHAFFNER: What is harborage?

MR. CHARLES WATKINS: Places for rodents or

insects to hide.

MS.SCHAFFNER: Allright. I move this application be

denied based upon the health inspection report.

MR. CHAIRMAN: Do we have a second?

MS. STEVENS: Second.

MR. CHAIRMAN: It has been moved and properly

seconded that this application be denied based on the health

inspector’s report. All in favor say aye.

(All board members voted aye.)

MR. CHAIRMAN: Any nays? Application is denied.

***

ind

[p. 43]

** *

The next application is the Executive Club,

[p. 44]

701 4th Avenue South.

MS. BORUM: We recommend disapproval. Itdoes

not comply with health codes. Some of these items: Repair

couch, clean rest room floors, provide covered trash cans.

MS. SCHAFFNER: I move this application be denied

based on the basis of the health violations.

MR. CHAIRMAN: Is there a second?

MS. STEVENS: Second.

MR. CHAIRMAN: It has been moved and properly

seconded that this application be denied based on the health

violations. All those in favor signify by - is there any

discussion from the board? All in favor signify by aye.

(All board members voted aye.)

MR. CHAIRMAN: Any nays? This application is

denied.

** *

ee eee oe

APPENDIX B

PULASKI TOWNSHIP POLICE DEPARTMENT

LAWRENCE COUNTY

R. D. 1, Pulaski, PA. 16143

Phone 652-7610 or 964-8891

February 5, 2001

Eric Boron

1399 Highland Avenue

Salem, Ohio 44460

RE: Application for an Adult Use License

Pulaski Township Ordinance No. 2000-5-22

Dear Mr. Boron:

We have reviewed the application for an Adult Use

License dated January 3, 2001 upon which we issued you a

“temporary license” pursuant to Section 4 of Pulaski

Township Ordinance 2000-5-22. May this letter serve as

notice to you that your application for a “permanent license”

is denied for the following reasons:

(a) Requirement 18 of the application requires an

applicant to state hours of operation. Your application

indicates that you will be operating your adult business

Monday through Saturday twenty-four (24) hours per

day and that the business will be closed on Sundays.

Your proposed hours of operation are not in

9a

10a

compliance with Section 18 of Pulaski Township

Ordinance 2000-5-22.

(b) Pursuant to an investigation conducted by officials of

the Township, individuals have observed Adult Land

operating after 10:00 p.m., which is in violation of

Section 18.0f Pulaski Township Ordinance 2000-5-22.

(c) Pursuant to an investigation of the business on

February 2, 2001 the Employee on duty identified

herself as Candace Ferguson of 510 N. Jefferson,

Lisbon, Ohio 44432. This individual does not have a

Temporary Employee License nor has she applied for

one. This is in violation of Section 3, A3 of Pulaski

Township Ordinance 2000-5-22.

Pursuant to Section 4.F., “Any person aggrieved by the

denial, suspension, renewal or revocation of a license may

appeal, in writing, within ten (10) days from the date of such

denial, suspension, non-renewal or revocation to the

Township Board of Supervisors in accordance with the

procedures set forth in section 9.0.” Specifically, Sections

9.A and 9.B. set forth your appeal rights under the

Ordinance.

Very truly yours,

/s/

Chief James B. Morris, Jr.

ce: H. Louis Sirkin

Richard A. Harper, Esquire

Se