City of Littleton v. Z.J. Gifts D-4, L.L.C. (2004)

The City of Littleton, Colorado, adopted an ‘‘adult business’’ licensing ordinance that required the businesses to submit information about their activities to the city; that they comply with local zoning rules restricting their location; and other specific circumstances outlining when the city could deny a license, plus time limits for city officials to reach a final licensing decision. The ordinance targeted the secondary effects of adult businesses, and licenses were required before their opening.

Z. J. Gifts opened a store selling adult toys, novelties, lotions, magazines, and movies in a location not zoned for adult businesses. Rather than apply for a license, Z. J. Gifts challenged the constitutionality of the ordinance, arguing among other things that the ordinance imposed a lengthy licensing system that did not provide for prompt judicial review when licenses were denied. The federal district court in Colorado rejected the challenge and ruled in favor of the city. On appeal, the Tenth Circuit reversed the lower court, holding that Littleton’s preapplication procedures and judicial review requirements constituted unconstitutional restraints under the First Amendment.

The fractured decision in FW/PBS Inc. v. City of Dallas (1990) generated uncertainty and divisions among the circuit courts regarding judicial review in regulatory regimes of adult businesses. As the Tenth Circuit framed it, one unsettled issue was whether the constitutional standard for ‘‘prompt judicial review’’ based on Freedman v. Maryland (1965) meant a ‘‘prompt decision’’ or according to FW/PBS v. City of Dallas the ‘‘possibility of prompt judicial review’’ or access to judicial review if a license were denied. The circuit court unanimously concluded that ‘‘we are not persuaded by those circuits that have concluded that mere ‘access’ to judicial review is sufficient in licensing cases. Following the Fourth, Sixth, and Ninth Circuits, we hold that, in the event that an adult-business license is denied, FW/PBS requires a prompt final judicial decision regarding the validity of the denial.’’ [Emphasis in original.]

A unanimous Supreme Court reversed the Tenth Circuit. Writing for the Court, Breyer concluded the ‘‘ordinance before us, considered on its face, was consistent with the First Amendment’s demands.’’ Breyer dismisses the distinction made between Freedman and its requirement that regulatory regimes involving the First Amendment ‘‘assure a prompt final judicial decision’’ and O’Connor’s plurality opinion in FW/PBS where she referred to the ‘‘possibility of judicial review.’’ The distinction ‘‘makes too much of too little,’’ Breyer notes; both cases, properly interpreted, require ‘‘a prompt judicial decision.’’

The crux of Breyer’s opinion is that ‘‘nothing in FW/PBS or in Freedman requires a city or a State to place judicial safeguards all in the city ordinance that sets for a licensing scheme.’’ Littleton’s ordinance remains constitutionally valid because ‘‘In our view, Colorado’s ordinary judicial review procedures suffice as long as the courts remain sensitive to the need to prevent First Amendment harms and administer those procedures accordingly.’’ Colorado’s courts, Breyer writes, are ‘‘aware of the constitutional need to avoid ‘undue delay’’’ that may arise from licensing adult businesses that lead to ‘‘unconstitutional suppression of protected speech.’’ If problems should arise, he advises, ‘‘federal remedies would provide an additional safety valve.’’

ROY B. FLEMMING

Cases and Statutes Cited

• City of Littleton v. Z.J. Gifts D-4, L.L.C., 2003-058 (2004)
• FW/PBS Inc. v. City of Dallas, 493 U.S. 215 (1990)
• Freedman v. Maryland, 380 U.S. 51 (1965)