In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), six members of the Supreme Court agreed that a Dallas licensing scheme regulating sexually-oriented businesses imposed a prior restraint that lacked adequate procedural safeguards as required by the decision in Freedman v. Maryland (1965). The scheme was thus facially unconstitutional.
Court said licensing of sexually-oriented business required safeguards against prior restraint
Delivering the majority opinion, Justice Sandra Day OโConnor observed that licensing schemes like Dallasโs require two of Freedmanโs three safeguards:
- (1) any restraint prior to judicial review may be imposed only for a specified brief period during which the status quo must be maintained, and
- (2) expeditious judicial review of that decision must be available.
Justice William J. Brennan Jr., joined by two of his colleagues, concurred in the judgment, but wrote separately because he would have required Freedmanโs third safeguard as wellโthat the city bear the burden of going to court on the license application denial, and that it bear the burden of proof once in court. Justice Byron R. White, joined by Chief Justice William H. Rehnquist, and Justice Antonin Scalia each wrote dissents, arguing that Freedmanโs procedural safeguards were not applicable to Dallasโs scheme.
Licensing scheme’s lack of deadlines violated First Amendment
FW/PBS followed a series of cases examining the two โevils that will not be toleratedโ in prior restraint schemes: (1) โunbridled discretion in the hands of a government officialโ and (2) unreasonable delay. FW/PBSโs ordinance required the police chief to approve issuance of the license within thirty days of โreceipt of the application,โ but it also required certain inspections (such as building and health) before the license could be issued. Because no time limits were set for completing these inspections and because no license could be issued without inspection approvals, the deadline was illusory.
O’Connor said licensing scheme was not a censorship system
Justice OโConnor did not require the third Freedman safeguard. She held that Dallasโs licensing scheme did not โpresent the grave โdangers of a censorship systemโ โfor two reasons. First, under Dallasโs ordinance the city could not exercise discretion โby passing judgment on the content of any protected speech.โ Instead, the city reviewed the applicantโs general qualifications, โa ministerial action that is not presumptively invalid.โ Second, unlike movie distributors, Dallas license applicants โhad more at stakeโ and thus had โevery incentive …to pursue the license denial through court.โ
Scalia thought sexually-oriented businesses could be engaged in marketing obscenity
Scalia, in his dissent, urged another means of addressing legislation affecting sexually-oriented businesses. The means, he stated, โconsists of recognizing that a business devoted to the sale of highly explicit sexual material can be found to be engaged in the marketing of obscenity, even though each book or film it sells might, in isolation, be considered merely pornographic and not obscene.โ The plurality, however, implicitly rejected this proposition. It observed that โ[t]he core policy underlying Freedman is that the license for a First Amendmentโprotected business must be issued within a reasonable period of timeโ (emphasis added).
‘Prompt judicial review’ requirement raised questions in lower courts
One question that divided circuit courts after FW/PBS arose from Justice OโConnorโs statement that โthere must be the possibility of prompt judicial review in the event that [a] license is erroneously denied.โ Some courts believed that this statement required a prompt judicial determination, not mere access to judicial review; others concluded that โprompt judicial reviewโ meant only prompt access to the courts. At least in Colorado, this question was resolved in City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004), in which the Supreme Court held that Coloradoโs โordinary court procedural rules and practices . . . provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.โ
This article was originally published in 2009. Cary Wiggins is a civil rights attorney with his practice in Atlanta. He has served as lead counsel in numerous cases involving First Amendment, Fourth Amendment, and Fourteenth Amendment claims. He frequently represents individuals who are asserting false arrest, malicious prosecution, excessive force, and public accommodation claims, as well as businesses seeking constitutional protections.