Readers of this column certainly are painfully aware of the trench warfare in the battle against censorship at the retail level. First Amendment attorneys, including the author of this column and his law firm, spend an enormous amount of time battling adult zoning ordinances, 3-foot rules, licensing regulations, and the infinity of other tricks used by local governments in an attempt to shut down adult bookstores, gentlemen’s clubs, and even love boutiques—or at least render them unprofitable. Brick-and-mortar folks know this.
Thus, retailers and local governments square off in court on a very regular basis. The topic here is which court.
There are two key pieces of legislation that help enforce constitutional rights. The first is the Civil Rights Act of 1871, which gives both federal and state courts the power to remedy violations of such rights by whatever means is appropriate. That includes, damages, injunctions, declaratory judgments, or whatever the court thinks is appropriate to undo the wrong committed by government. This puts some teeth in the Bill of Rights—if you have a ton of money, which many victims of constitutional violations do not. The Attorneys Fees Award Act of 1976 corrected that. Detractors of that legislation claimed it would create a flood of litigation and bankrupt cities. Time has proven that, while it did create a great deal of litigation, it has not bankrupted any cities. Rather, the law has accomplished exactly what its proponents predicted: Gross violations of civil rights have been punished, and local governments thereby have tended to be a great deal more careful when attempting to steamroll citizens’ individual liberties.
Significant here is that the reason for the 1876 Act was that people—especially minorities in the South—were not getting much of a fair shake in state courts when attempting to redress constitutional violations. And adult businesses do not do so well in state courts, either.
Universally, a state judge has just as much power to enforce the First Amendment as a federal one. The question is the state judge’s willingness to do so, and the answer to that is politics.
In most states, judges get their jobs through popular election. A somewhat more enlightened approach is where the state judges run unopposed—“against their record.” If voted out, a replacement is appointed. Federal judges, on the other hand, are appointed for life. That is an extremely important component of the ingenious checks and balances system created by our national constitution. So, whom do you want deciding whether the First Amendment gives you a right to operate your adult business as you wish? A local state judge who has lunch with the mayor once a month and is gearing up for a reelection campaign, or the federal judge downtown who is appointed for life? The answer is generally obvious.
Other reasons why federal court is often a better place to be is because the judges do not have such a heavy workload, and they are generally equipped with a better array of staff attorneys and are more familiar with constitutional principles. State judges, on the other hand, are overwhelmed with criminal cases, auto accidents, divorces and business disputes, and frequently do not have the luxury of a staff comparable to that given to federal judges.
If you have been stopped cold by the city in your adult-business effort (such as by an unconstitutional regulatory, licensing or zoning ordinance), the answer is simple: You file a complaint in federal court seeking an injunction and attorneys’ fees (as well as damages if the city has kept you closed too long) and go forward. Generally speaking, there are only two things that can knock you out of federal court under those circumstances. One, which rarely applies, is called the “Pullman Abstention” (arising from a 1940s case in the Supreme Court called Pullman v. Railroad Commission). The Pullman Abstention applies when a law is ambiguous and therefore might or might not be constitutional. Under those circumstances, the federal judge is supposed to send you back to state court to figure out which way to interpret the law. Once the interpretation issue is resolved, you can come back to federal court if you still need relief. Case law, however, supports the proposition that an injunction can be ordered by the federal court pending a Pullman Abstention, which means that you can get your business open during the period when the state court is stumbling around trying to figure out what its own ordinance means. That does not happen very often.
The second and by far most frequently occurring reason why lawsuits by those attempting to open new adult businesses wind up in state court is availability and quality of lawyers. The quantity of civil litigation in federal court is dwarfed by the amount that takes place in state courts. As a result, an attorney selected at random is much more likely to be experienced in litigation in local courts than in federal ones. First Amendment specialists can tell endless horror stories of the nightmarish experiences of taking over cases filed in state court and, as a result, finding themselves in front of some local judge who once was the mayor’s campaign manager and in a courthouse two blocks away from the place where the plaintiff wants to open his adult business. As unfortunate as this is, it happens constantly.
There is one other obvious question about the choice to file in federal court: What if you also have a solid argument under state law? The answer is that federal courts have something called supplemental jurisdiction, which allows the federal court to also enforce state-law claims that are intertwined with the federal ones. So if the city ordinance violated the First Amendment and a state statute to boot, you could advance both of those claims in your federal action.
Thus, there is no reason not to be in federal court unless you are totally bereft of any claim of a constitutional violation.
The more common situation in which legal battles over retail adult businesses are blown out of federal court is where a new ordinance is enacted after the business is already in place, or the city tries to blow the dust off an old ordinance that nobody knew about. There is a case called Younger v. Harris, which says that, as a general proposition, if there is litigation going on against you in state court and the objections raised by your federal lawsuit could be addressed in that court, the federal court loses jurisdiction to the state court. It is a matter of comity and deference to state courts.
What that means in practice is simply that if the city passes a new ordinance and files a misdemeanor citation against your business or one of its employees for violating the new ordinance, you are out of federal court. The same is true if they bring a zoning-abatement action, or some other civil action to prevent you from violating the ordinance. There are even cases which stand for the proposition that an order to comply notice triggers a Younger Abstention. The reason for all of that is because, for example, if you are charged with a criminal offense for violating the new ordinances you wish to challenge, you have the right, in defense of your criminal case, to claim that the ordinance is unconstitutional—exactly the same claim that you were seeking to make in federal court. The theory of Younger v. Harris is that the federal court system should not do anything to interfere with decisions of state judges.
Younger v. Harris is an enormously potent weapon for local governments. And they love it! It gives them enormous fire superiority.
For example, say the city passes an ordinance prohibiting any advertisement whatsoever of any sexually oriented business. You find this obviously disconcerting because you attract a great deal of business with your daily advertisement in the sports section of the local fish wrap. If you do it right, what you will do is file a lawsuit in federal court before the ordinance becomes effective, seeking an emergency injunction. That gives you immediate fire superiority. You stand to recover attorneys’ fees; you have no risk of going to jail; and you are in the court where you believe you have the best odds of success. Looking down the barrel of a fee award, the city might well back down. If not, you go forward with your litigation.
Compare that to the alternate nightmare scenario, which happens all too often: “Screw the city—I’m going to run my advertisement anyway and I’m not about to pay all that money to hire a lawyer!” What happens next is a catastrophe. The vice squad comes down and gives you a criminal citation for putting your advertisement in the Sunday rag. Now you are out of federal court because of Younger, and in front of the police chief’s friend and the local criminal misdemeanor judge (who runs for election next year) in a courthouse down the street from your business. Worse yet, you have no right to recover attorneys’ fees. When the judge throws out your challenge to the constitutionality of the statute, you stand to be tossed in jail, and the conviction might supply the basis for the revocation of your license. Not only can you not recover attorneys’ fees but also the attorneys’ fees you will incur probably will exceed those in a federal lawsuit. All in all, this is a disaster.
The lesson to be learned here is twofold. First, be sure that your legal advice is coming from someone who knows enough about the First Amendment so that you can avoid dilemmas like this. Second, keep your ear to the ground. Know what is cooking down at city hall. Subscribe to the city council agendas. And if the city passes an ordinance that catches you napping, close your business if you have to, until you can get into federal court. Be the plaintiff, not the defendant!
Clyde DeWitt is a Las Vegas and Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
This article originally ran in the February 2010 issue of AVN.
