FW/PBS, Inc. v. Dallas
493 U.S. 215 (1990)
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Rule of Law:
A licensing scheme for businesses engaged in First Amendment-protected activity must contain two procedural safeguards: (1) the licensor must make a decision whether to issue the license within a specified and reasonable time period, and (2) there must be the possibility of prompt judicial review of an adverse decision.
Facts:
- The city of Dallas, Texas, enacted an ordinance regulating 'sexually oriented businesses' to combat secondary effects like crime and urban blight.
- The ordinance defined businesses such as adult bookstores, adult cabarets, and adult theaters as sexually oriented businesses and required them to obtain a license to operate.
- To obtain a license, the premises had to pass inspections by the health department, fire department, and a building official.
- While the ordinance required the chief of police to approve a license within 30 days of receiving an application, it set no time limit for the prerequisite inspections to be completed.
- The ordinance also included a 'civil disability' provision, prohibiting individuals with certain criminal convictions from obtaining a license for a specified period.
- Additionally, the ordinance classified any motel that rents rooms for fewer than 10 hours as an 'adult motel,' subjecting it to the licensing requirements.
- Owners of adult bookstores, cabarets, and motels brought a legal challenge against the ordinance.
Procedural Posture:
- Three groups of petitioners, including owners of adult bookstores, cabarets, and motels, filed separate suits in the U.S. District Court for the Northern District of Texas.
- The petitioners sought preliminary and permanent injunctions and declaratory relief against the Dallas ordinance.
- On cross-motions for summary judgment, the District Court upheld the majority of the ordinance but struck several subsections as unconstitutional.
- The petitioners (as appellants) appealed to the U.S. Court of Appeals for the Fifth Circuit, and the City of Dallas (as appellee) cross-appealed.
- The Court of Appeals affirmed the District Court's judgment, holding the ordinance was a valid time, place, and manner regulation and that Freedman's procedural safeguards were not required.
- The petitioners sought and were granted a writ of certiorari by the U.S. Supreme Court.
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Issue:
Does a municipal ordinance requiring a license for sexually oriented businesses, which fails to place a time limit on the required inspections and fails to provide for prompt judicial review, constitute an unconstitutional prior restraint under the First Amendment?
Opinions:
Majority - Justice O'Connor
Yes. A licensing scheme that lacks adequate procedural safeguards constitutes an unconstitutional prior restraint. The Dallas ordinance fails because it allows for the indefinite postponement of a license issuance. By not setting a deadline for the required inspections, the city creates an impermissible risk of suppressing protected speech through unconstitutional delay. The scheme must provide for a specified and reasonable time period for the decision and the possibility of prompt judicial review. However, the full procedural protections of Freedman v. Maryland are not required; specifically, the city does not have to bear the burden of initiating judicial proceedings to deny a license, as the business owner has a significant economic incentive to challenge any denial.
Concurring - Justice Brennan
Yes. While the judgment to invalidate the licensing scheme is correct, the majority errs by not requiring all three Freedman safeguards. Citing Riley v. National Federation of Blind of N.C., Inc., this opinion argues that the city must bear the burden of going to court and the burden of proof to deny a license. The danger of stifling speech is the same regardless of whether the scheme is content-based censorship or a ministerial licensing process, and the presumption against prior restraints requires placing the litigation burden on the state. The majority's extensive discussion of standing is unnecessary dictum.
Dissenting - Justice White
No. The licensing ordinance is a content-neutral time, place, and manner regulation aimed at the secondary effects of sexually oriented businesses, not a form of censorship. Therefore, the procedural safeguards required by Freedman v. Maryland are inapplicable. The ordinance regulates the nonspeech elements of the businesses' conduct and, because it does not vest unbridled discretion in the licensor, it should be upheld without imposing Freedman's requirements.
Concurring - Justice Stevens
Joins the majority in finding the licensing scheme unconstitutional. However, this opinion dissents from the majority's conclusion that petitioners lacked standing to challenge the civil disability provisions, arguing that the case should be remanded for an evidentiary hearing on that issue. It also rejects the reasoning in Justice Scalia's dissent regarding the unprotected nature of the businesses.
Dissenting - Justice Scalia
No. The businesses regulated by the Dallas ordinance are engaged in 'the sordid business of pandering,' an activity not protected by the First Amendment under the precedent of Ginzburg v. United States. Because the city could constitutionally prohibit these businesses entirely, it is certainly permitted to regulate them through a licensing scheme. Consequently, the details of that licensing scheme do not need to comply with the stringent procedural safeguards required for protected speech.
Analysis:
This decision refines the application of the Freedman doctrine, creating a modified, two-part test for licensing schemes that are prior restraints on First Amendment-related businesses but do not involve direct censorship of content. By requiring a definite time limit for decisions and prompt judicial review, the Court protects against suppression of speech through administrative delay. However, by removing the third Freedman requirement—that the government bear the burden of litigation—the Court lessened the procedural burden on municipalities regulating the secondary effects of such businesses, distinguishing these regulations from classic censorship boards.
