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

Young v. American Mini-Theatres (1976) and Renton v. Playtime Theatres (1986) upheld the constitutionality of zoning ordinances regulating the locations of movie theaters specializing in sexually explicit films to counter the theatres’ negative secondary effects on adjacent neighborhoods or nearby places of worship or schools. In the wake of these decisions, localities adopted more comprehensive regulations, including licensing schemes as well as zoning restrictions that focused on a wider array of ‘‘adult businesses.’’

Dallas, Texas, the respondent in this case, adopted a regulatory regime involving zoning, licensing, and inspections of sexually oriented businesses that included adult arcades, bookstores, video stores, cabarets, motels, theaters, and, before the Supreme Court reviewed the ordinance, escort agencies, nude model studios, plus ‘‘sexual encounter centers.’’ Three separate lawsuits were filed by an array of businesses in federal district court that upheld most of the ordinance. The cases were subsequently appealed to the Fifth Circuit Court of Appeals, which affirmed the lower court, viewing it as a content-neutral time, place, and manner regulation under Renton.

Critical to the Supreme Court’s review was the circuit court’s conclusion that, despite the absence of the procedural safeguards mandated in the film censorship case, Freedman v. Maryland (1965), the ordinance was constitutional. Brennan’s majority opinion in Freedman struck down Maryland’s law because the procedures for censoring and licensing the presentation of films created the risk of delay while lacking prompt judicial review of decisions censoring or banning films. Prompt judicial review was needed whenever ‘‘unduly onerous’’ procedures for judicial review mean the ‘‘censor’s determination may, in practice, be final.’’

Brennan proposed three procedural protections in Freedman. First, a censorship scheme must assure the exhibitor, ‘‘by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film.’’ Second, the censorship scheme must ‘‘assure a prompt final judicial decision’’ after a refusal to license because, Brennan reasoned, ‘‘only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression.’’ Third, ‘‘the burden of proving that the film is unprotected expression must rest on the censor.’’

FB/PBS, Inc. v. City of Dallas resulted in a complex, divided ruling that affirmed in part, reversed in part, and vacated in part with the cases remanded for further consideration. One issue dividing the Court was whether the Dallas ordinance constituted a censorship regime with regard to the regulation of adult businesses. Another issue, if the Dallas law was a censorship regime, was whether Freedman applied and if so whether all three parts of Brennan’s test were also applicable.

O’Connor authored the fractured opinion. Stevens and Kennedy joined her opinion declaring the Dallas ordinance unconstitutional because it constituted a prior restraint on protected expression. According to O’Connor, a regulatory regime placing ‘‘unbridled discretion in the hands of a government official or agency’’ with respect to the location, licensing, or inspection of adult businesses ‘‘constitutes a prior restraint.’’ Such restraints are not unconstitutional per se, but ‘‘any system of prior restraint. . .comes to this Court bearing a heavy presumption against its constitutional validity.’’

Brennan, Marshall, and Blackmun agreed with O’Connor that the ordinance was unconstitutional, giving her six votes on this question. The three justices, however, balked at her conclusion that because the Dallas ordinance did not pose the ‘‘grave ‘dangers of a censorship system’’’ that only Freedman’s first two elements, particularly ‘‘the possibility of prompt judicial review,’’ were applicable. The three justices argued the Burden of Proof element also applied.

White and Rehnquist, agreeing with the Fifth Circuit Court, felt the ordinance as a time, place, and manner restriction was not subject to strict scrutiny and thus Freedman was inapplicable. Scalia dissented from the judgment and developed an alternative argument that the Dallas ordinance legitimately regulated the ‘‘pandering’’ activity of adult businesses, consistent with Ginzburg v. Unites States (1966).

The difficulties the decision in FW/PBS created for the lower courts surfaces in the litigation leading to City of Littleton v. Z.J. Gifts (2004).

ROY B. FLEMMING

References and Further Reading

• Hixson, Richard F. Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem. Carbondale, IL: Southern Illinois University Press, 1996.
• Mackey, Thomas C. Pornography on Trial: A Handbook with Cases, Law, and Documents. Santa Barbara, CA: ABC-Clio, 2002.

Cases and Statutes Cited

• City of Littleton v. Z.J. Gifts D-4, L.L.C., 2003-058 (2004)
• City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)
• Freedman v. Maryland, 380 U.S. 51 (1965)
• FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)
• Ginzburg v. United States 383 U.S. 463 (1966)
• Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)