Home ยป Articles ยป Case ยป Licensing Requirements ยป FW/PBS, Inc. v. City of Dallas (1990)

Written by Cary Wiggins, last updated on September 19, 2023

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In FW/PBS, Inc. v. City of Dallas (1990) struck down a licensing scheme regulating sexually-oriented businesses for being a imposing unconstitutional prior restraint, violating the First Amendment. A sex shop store window in midtown Manhattan is shown in 2005.ย  (AP Photo/Mark Lennihan, used with permission from the Associated Press)

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 Oโ€™Connor observed that licensing schemes like Dallasโ€™s require two of Freedmanโ€™s 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 Freedmanโ€™s third safeguard as wellโ€”that 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 Freedmanโ€™s procedural safeguards were not applicable to Dallasโ€™s scheme.

 

Licensing scheme’s lack of deadlines violated First Amendment

 

FW/PBS followed a series of cases examining the two โ€œevils that will not be toleratedโ€ in prior restraint schemes: (1) โ€œunbridled discretion in the hands of a government officialโ€ and (2) unreasonable delay. FW/PBSโ€™s ordinance required the police chief to approve issuance of the license within thirty days of โ€œreceipt 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 Oโ€™Connor did not require the third Freedman safeguard. She held that Dallasโ€™s licensing scheme did not โ€œpresent the grave โ€˜dangers of a censorship systemโ€™ โ€for two reasons. First, under Dallasโ€™s ordinance the city could not exercise discretion โ€œby passing judgment on the content of any protected speech.โ€ Instead, the city reviewed the applicantโ€™s general qualifications, โ€œa ministerial action that is not presumptively invalid.โ€ Second, unlike movie distributors, Dallas license applicants โ€œhad more at stakeโ€ and thus had โ€œevery 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, โ€œconsists 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€œ[t]he core policy underlying Freedman is that the license for a First Amendmentโ€“protected 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 Oโ€™Connorโ€™s statement that โ€œthere 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 โ€œprompt 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 Coloradoโ€™s โ€œordinary 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.

 

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