According to all sources, the question before the U.S. Supreme Court in the case of City of Littleton, Colorado v. Z.J. Gifts D-4, LLC was whether the concept of "prompt judicial review" simply means mere access to a judicial forum (i.e., a court), or does it go farther than that, and include the right to a prompt judicial decision on the merits of the case at hand?
But from the numerous questions asked by the nine high court judges in argument today that ranged far afield from that concept, it's unclear whether that initial question, which was last presented to (and avoided by) the court in late 2001 in Thomas v. Chicago Park District, will be resolved this time either – and if it is, will it be a solution that's favorable to the adult business community?
"I think the court was very vigorous and reflected a surprisingly – at the end I think – hostile view of the position that was being presented for the adult business," assessed prominent First Amendment attorney John Weston, who has himself argued numerous cases before the high court justices, and who was among several First Amendment attorneys who were present to observe the proceedings. "You never know what the court's going to do, but I would say that we were not buoyed by the final indications from any of the justices of the Court."
In fact, it was an uphill battle for both sides of the issue, with the petitioner's case being argued by both Littleton's attorney J. Andrew Nathan and Ohio State Solicitor Douglas R. Cole, representing several cities around the country which had collectively filed an amicus brief in support of Littleton's position. Denver attorney Michael Gross, who works with legendary free speech defender Arthur Schwartz, represented the business owners.
The case is exceptionally complex, with Z.J. Gifts having won several victories in the lower state courts, such as not being held in contempt for opening its store for business without first obtaining a business license. But Littleton's position has always been that Z.J. Gifts, doing business as Christal's, is an adult business under the somewhat vague definition in its adult zoning ordinance, and much of the litigation has centered around whether Christal's in fact meets that definition, since estimates of the adult portion of Christal's stock has varied between 33 and 18 percent – that latter evaluation having been approved by the Colorado Court of Appeals – neither of which estimates would seem to the untrained eye to meet Littleton's requirement that a "significant or substantial" portion of the business be devoted to adult.
But Nathan denied that Littleton's definition was unconstitutionally vague.
"Yes, there's a complete definition: 'A significant, substantial portion of its stock in trade, floor space, revenues or advertising devoted to adult materials' which are described in excruciating detail in the ordinance," Nathan explained. "'Significant' or 'substantial' aren't defined, but the point is that that was the same language used in the ordinance in Detroit in Young [v. American Mini-Theaters] that the court found constitutional."
Trouble is, the Young case is more than 30 years old at this point, and several lower courts have taken the position that vague terms like "significant" and "substantial" need explanation in the ordinance itself in order to pass constitutional muster.
But while that disagreement formed part of the backdrop for today's argument, and may eventually return the case to the Supreme Court on a different set of facts, it wasn't probative of the central "prompt judicial review" question.
Another problem that consumed some of the argument time – each side gets 30 minutes to argue its case – was the question of whether Z.J. Gifts even has standing to bring the case, and that question may yet be the factor that allows the court to sidestep the central question yet again.
The question of standing has two elements here: For one thing, Christal's has been open for business since Day 1, and has even won several court victories, so it was more difficult for Gross to get across the idea that his client had been harmed by the fact that city officials delayed giving it a (non-adult) business license. Of course, the fact that the city has handed the store over 2,000 criminal citations in municipal court, with a potential exposure of several million dollars, might be evidence of at least potential harm to the business. The other question that might impact standing is, if Christal's is in fact an adult business, its application for a non-adult business license might be seen as frivolous, and the case dismissed on that basis, even though it has now been argued.
But while prompt judicial review would seem to be a simple right of any business, and while the concept has a long history of being upheld in previous high court decisions, starting with Freedman v. Maryland – even without the court providing an actual definition of the term, though Freedman comes close with its list of three procedural safeguards to protect speech – the concept hasn't previously been applied to whether non-judicial municipal administrative officers must make prompt decisions on, for instance, acceptance or denial of business license applications.
Littleton opposes extending the prompt judicial review concept to non-judges on essentially two bases: 1) That in this case, no harm came to the business because of the delay, and 2) that for the court to set time limits within which decisions must be made would violate the separation of powers between the judiciary (the courts) and the executive (the licensing administrators).
Both Justices David Souter and Sandra Day O'Connor presented a hypothetical solution to the petitioner and the amici, suggesting that perhaps an automatic license, either temporary or permanent, should be granted to the license applicant if the city officials don't make a decision on whether to grant the license within a specified period. Both Nathan and Cole rejected that solution, arguing that the automatic granting of a license would trigger the exact secondary effects that withholding the license was meant to prevent. (There was no discussion held as to whether adult businesses actually create secondary effects; for this argument, it was apparently presumed that they do.)
"I think that the cities identified the problem," said Florida attorney Luke Lirot of the temporary license idea, "and what their position was, surprisingly, was that a conditional permit wouldn't serve the city's purpose because then you're allowing the secondary effects. Souter's solution was, if you can't make your deadline, and it's clear that what you're trying to do is censor these businesses, then the solution should be the issuance of a license, and that should be a permanent license. That's what I found to be the most encouraging aspect of any of the statements made by any of the justices."
When Gross's turn came, however, he was hit from many sides, including barbs from some justices who had previously appeared to be friendly to First Amendment cases.
"Justice [Stephen] Breyer did strike me as being somewhat antagonistic to our side," Lirot noted, "and it was very surprising to see him take that position. I also thought that Justice [John Paul] Stevens would be more sensitive to the First Amendment issues involved, and he didn't seem to have been taken by the argument or the issues."
Among the issues the justices raised with Gross was the question of whether Christal's, absent the delay in the licensing procedure, was located in an area that adult businesses were allowed to locate under the zoning code; whether, since Gross had already taken the store into various state and federal judicial jurisdictions, he'd indicated by those actions that he already had prompt judicial review; and whether an adult store deserved any special expediency in obtaining a business license over, for example, a homeowner wanting to add an extra bedroom to his house? (That last was the contribution of Justice Antonin Scalia, who further opined that, "If that's where we've arrived at, we ought to retrace our steps.")
"I think there's clearly some antagonism on the part of the court that adult businesses even deserve the same types of protections as non-adult businesses," Lirot commented. "Scalia couldn't have been more clear, comparing adult businesses to a sulfur factory or a slaughterhouse. I don't think he recognizes the true First Amendment freedoms that are inherent in adult businesses."
"All in all, though, I think Michael [Gross] did an outstanding job," Lirot continued. "He stood up well to some pretty tough questioning."
But asked whether the court might again sidestep the issue as it did in Thomas, Lirot replied, "I certainly hope not. I think they will definitely make a statement on this issue, and I think what they will ultimately say is that access to the courts is sufficient, and unfortunately, I just don't think that it is. I've got cases now that have been in the court system for probably going on 10 years, and without a directive from a higher authority that there has to be a decision, there's no incentive either on the part of the courts to make a controversial decision, or on the parts of any of the judges involved, so if they don't have to make a decision, it's unlikely that they would; especially a state court judge, who has all the outside influences of having to be elected by a majority of the people and the different perceptions involved in that. But I'm hopeful; I'm really hopeful today
