FW/PBS v. City of Dallas
493 U.S. 215

Annotate this Case

U.S. Supreme Court

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

FW/PBS, Inc. v. City of Dallas

Nos. 87-2012, 87-2051 and 88-49

Argued Oct. 4, 1989

Decided Jan. 8, 1990

493 U.S. 215

Syllabus

Respondent City of Dallas adopted a comprehensive ordinance regulating "sexually oriented businesses," which are defined to include "adult" arcades, bookstores, video stores, cabarets, motels, and theaters, as well as escort agencies, nude model studios, and sexual encounter centers. Among other things, the ordinance requires that such businesses be licensed, and includes civil disability provisions prohibiting certain individuals from obtaining licenses. Three groups of individuals and businesses involved in the adult entertainment industry filed separate suits challenging the ordinance on numerous grounds and seeking injunctive and declaratory relief. The District Court upheld the bulk of the ordinance, but struck down several subsections, and the city subsequently amended the ordinance in conformity with the court's judgment. The Court of Appeals affirmed, holding, inter alia, that the ordinance's licensing scheme did not violate the First Amendment despite its failure to provide the procedural safeguards set forth in Freedman v. Maryland,380 U. S. 51 (1965), and that its civil disability provisions and its provision requiring licensing for "adult motel owners" renting rooms for fewer than 10 hours were constitutional.

Held: The judgment is affirmed in part, reversed in part, and vacated in part, and the cases are remanded.

837 F.2d 1298, (CA 51988), affirmed in part, reversed in part, vacated in part, and remanded.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts III and IV, concluding that:

1. No petitioner has shown standing to challenge (1) the ordinance's provision which prohibits the licensing of an applicant who has resided with an individual whose license application has been denied or revoked, or (2) the civil disability provisions, which disable for specified periods those who have been convicted of certain enumerated crimes, as well as those whose spouses have been so convicted. The record does not reveal

Page 493 U. S. 216

that any petitioner was living with an individual whose application was denied or whose license was revoked. Moreover, although the record reveals one individual who potentially could be disabled under the spousal conviction provision, that person is not herself a license applicant or a party to this action. Even if she did have standing, however, her claim would now be moot, since the city council deleted from the statutory list the crimes of which her husband was convicted after the District Court ruled that the inclusion of such convictions was unconstitutional. Furthermore, although one party stated in an affidavit that he had been convicted of three enumerated misdemeanors, he lacked standing, since he failed to state when he had been convicted of the last misdemeanor or the date of his release from confinement and, therefore, has not shown that he is still within the statutory disability period. This Court cannot rely on the city's representations at oral argument that one or two of the petitioners had been denied licenses based on convictions, since the necessary factual predicate must be gleaned from the record below. Similarly, the city's affidavit indicating that two licenses were revoked for convictions is unavailing, since the affidavit was first introduced in this Court and is not part of the record, and, in any event, fails to identify the individuals whose licenses were revoked. Because the courts below lacked jurisdiction to adjudicate petitioners' claims, the Court of Appeals' judgment with respect to the disability provisions is vacated, and the court is directed to dismiss that portion of the suit. 493 U. S. 230-236.

2. The ordinance's provision requiring licensing for motels that rent rooms for fewer than 10 hours is not unconstitutional. The motel owner petitioners' contention that the city has violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for fewer than 10 hours results in increased crime or other secondary effects is rejected. As the Court of Appeals recognized, it was reasonable to believe that shorter rental time periods indicate that the motels foster prostitution, and that this type of criminal activity is what the ordinance seeks to suppress. The reasonableness of the legislative judgment, along with the Los Angeles study of the effect of adult motels on surrounding neighborhoods that was before the city council when it passed the ordinance, provided sufficient support for the limitation. Also rejected is the assertion that the 10-hour limitation places an unconstitutional burden on the right to freedom of association recognized in Roberts v. United States Jaycees,468 U. S. 609, 468 U. S. 618. Even assuming that the motel owners have standing to assert the associational rights of motel patrons, limiting rentals to 10 hours will not have any discernible effect on the sorts of traditional personal bonds considered in Roberts: those that play a critical role in the Nation's culture and traditions by cultivating and transmitting shared ideals and beliefs. This Court

Page 493 U. S. 217

will not consider the motel owners' privacy and commercial speech challenges, since those issues were not pressed or passed upon below. 493 U. S. 236-238.

Justice O'CONNOR, joined by Justice STEVENS and Justice KENNEDY, concluded in Part II that the ordinance's licensing scheme violates the First Amendment, since it constitutes a prior restraint upon protected expression that fails to provide adequate procedural safeguards as required by Freedman, supra. Pp. 493 U. S. 223-230.

(a) Petitioners may raise a facial challenge to the licensing scheme. Such challenges are permitted in the First Amendment context where the scheme vests unbridled discretion in the decisionmaker and where the regulation is challenged as overbroad. Petitioners argue that the licensing scheme fails to set a time limit within which the licensing authority must act. Since Freedman, supra, 380 U.S. at 380 U. S. 56-57 held that such a failure is a species of unbridled discretion, every application of the ordinance creates an impermissible risk of suppression of ideas. Moreover, the businesses challenging the licensing scheme have a valid First Amendment interest. Although the ordinance applies to some businesses that apparently are not protected by the First Amendment -- e.g., escort agencies and sexual encounter centers -- it largely targets businesses purveying sexually explicit speech, which the city concedes for purposes of this litigation are protected by the First Amendment. While the city has asserted that it requires every business -- regardless of whether it engages in First Amendment-protected speech -- to obtain a certificate of occupancy when it moves into a new location or the use of the structure changes, the challenged ordinance nevertheless is more onerous with respect to sexually oriented businesses, which are required to submit to inspections -- for example, when their ownership changes or when they apply for the annual renewal of their permits -- whether or not they have moved or the use of their structures has changed. Pp. 493 U. S. 223-225.

(b) Freedman, supra, at 58-60 determined that the following procedural safeguards were necessary to ensure expeditious decisionmaking by a motion picture censorship board: (1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (8) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Like a censorship system, a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where there are inadequate procedural safeguards to ensure prompt issuance of the license. Thus, the license for a First Amendment-protected business must be issued in a reasonable period of time, and, accordingly, the first two Freedman safeguards are essential. Here, although

Page 493 U. S. 218

the Dallas ordinance requires the chief of police to approve the issuance of a license within 30 days after receipt of an application, it also conditions such issuance upon approval by other municipal inspection agencies without setting forth time limits within which those inspections must occur. Since the ordinance therefore fails to provide an effective time limitation on the licensing decision, and since it also fails to provide an avenue for prompt judicial review so as to minimize suppression of speech in the event of a license denial, its licensing requirement is unconstitutional insofar as it is enforced against those businesses engaged in First Amendment activity, as determined by the court on remand. However, since the licensing scheme at issue is significantly different from the censorship system examined in Freedman, it does not present the grave dangers of such a system, and the First Amendment does not require that it contain the third Freedman safeguard. Unlike the Freedman censor, Dallas does not engage in presumptively invalid direct censorship of particular expressive material, but simply performs the ministerial action of reviewing the general qualifications of each license applicant. It therefore need not be required to carry the burden of going to court or of there justifying a decision to suppress speech. Moreover, unlike the motion picture distributors considered in Freedman -- who were likely to be deterred from challenging the decision to suppress a particular movie if the burdens of going to court and of proof were not placed on the censor -- the license applicants under the Dallas scheme have every incentive to pursue a license denial through court, since the license is the key to their obtaining and maintaining a business. Riley v. National Federation of Blind of N.C., Inc.,487 U. S. 781 (1988), is not dispositive of this litigation, since, although it struck down a licensing scheme for failing to provide adequate procedural safeguards, it did not address the proper scope of procedural safeguards with respect to such a scheme. Since the Dallas ordinance summarily states that its terms and provisions are severable, the Court of Appeals must, on remand, determine to what extent the licensing requirement is severable. Pp. 493 U. S. 225-230.

Justice BRENNAN, joined by Justice MARSHALL and Justice BLACKMUN, although agreeing that the ordinance's licensing scheme is invalid as to any First Amendment-protected business under the Freedman doctrine, concluded that Riley mandates application of all three of the Freedman procedural safeguards, not just two of them. Riley v. National Federation of Blind of N.C., Inc.,487 U. S. 781, 487 U. S. 802, applied Freedman to invalidate a professional licensing scheme with respect to charity fundraisers who were engaged in First Amendment-protected activity, ruling that the scheme must require that the licensor -- i.e., the State, not the would-be fundraiser -- either issue a license within a specified brief period or go to court. The principal opinion's grounds for declining

Page 493 U. S. 219

to require the third Freedman safeguard -- that the Dallas scheme does not require an administrator to engage in the presumptively invalid task of passing judgment on whether the content of particular speech is protected, and that it licenses entire businesses, not just individual films, so that applicants will not be inclined to abandon their interests -- do not distinguish the present litigation from Riley, where the licensor was not required to distinguish between protected and unprotected speech, and where the fundraisers had their entire livelihoods at stake. Moreover, the danger posed by a license that prevents a speaker from speaking at all is not derived from the basis on which the license was purportedly denied, but is the unlawful stifling of speech that results. Thus, there are no relevant differences between the fundraisers in Riley and the petitioners here, and, in the interest of protecting speech, the burdens of initiating judicial proceedings and of proof must be borne by the city. Pp. 493 U. S. 239-242.

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and IV, in which REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and KENNEDY, JJ., joined, the opinion of the Court with respect to Part III, in which REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part II, in which STEVENS and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 493 U. S. 238. WHITE, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C.J., joined, post, p. 493 U. S. 244. STEVENS, J., post, p. 493 U. S. 249, and SCALIA, J., post, p. 493 U. S. 250,filed opinions concurring in part and dissenting in part.

Page 493 U. S. 220

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