Michael Gross, attorney for Z.J. Gifts D-4, the corporation doing business as Christal’s in Littleton, Colorado, is of two minds regarding today’s U.S. Supreme Court decision on the case he argued three months ago.
“It’s a 9-0 reversal, so that’s not a good thing,” Gross admitted. “But it’s a little bit of a consolation, because we actually prevailed on the question presented to the court, the question they granted cert on, which is ‘Whether the requirement of prompt judicial review imposed by FW/PBS v. City of Dallas entails a prompt judicial determination or prompt commencement of judicial proceedings?’ And their ruling essentially went the way we wanted them to on that particular point; they affirmed the prompt judicial determination.
"But then they turn around and say, ‘We’re not going to enforce that based upon what we had previously said in Freedman v. Maryland,’ and so, I guess prompt judicial determination is the law now, which wasn’t clear before, but unfortunately, it’s up to each court on a case-by-case basis to decide what that means.”
City of Littleton v. Z.J. Gifts is one of the most convoluted First Amendment cases in recent memory, involving actions in both state and federal courts, and with the city changing its zoning ordinance in midstream, mooting some aspects of the case and giving rise to others. It involves the city’s vague standard as to what constitutes an adult business; whether Christal’s was in violation of the city’s zoning ordinance even before it lowered its percentage of adult merchandise from 33 percent to 18 percent; whether even 18 percent is too high to avoid the “adult” designation; and the aspect that gave rise to the Supreme Court argument, which is how quickly the city administration has to decide whether to issue a business license for Christal’s as a non-adult business or try to shut it down as a non-conforming adult venue.
“The city of Littleton's claims rest essentially upon two arguments,” wrote Associate Justice Stephen Breyer for the Court. “First, this Court, in applying the First Amendment's procedural requirements to an 'adult business' licensing scheme in FW/PBS, found that the First Amendment required such a scheme to provide an applicant with 'prompt access' to judicial review of an administrative denial of the license, but that the First Amendment did not require assurance of a 'prompt judicial determination' of the applicant's legal claim. Second, in any event, Colorado law satisfies any 'prompt judicial determination' requirement. We reject the first argument, but we accept the second.
“The big issue, which the court didn’t deal with in this case, was whether the store is an adult business or not an adult business,” Gross summarized, “and at one point – part of what was held against us is, we won a lot of parts of the case in state court. They moved to hold them [Z.J.] in contempt; they [Littleton] got an injunction against them [Z.J.] operating an adult business. They changed their inventory from 33 percent to 18 percent and the [state court] judge said he didn’t think that would constitute an adult bookstore, and therefore, they weren’t in violation of the court order.
"We appealed the underlying injunction to the state court of the appeals as well, and the state court of appeals reversed the underlying injunction, and said it was too broad. So right now, there’s no injunction against the store. And then the Tenth Circuit ruled in our favor on the judicial review issue, which is what was decided today. So the case has been kind of on hold pending the Supreme Court.
“I anticipate there may be some further activity by the City, but we’re essentially back to square one in trying to figure out whether or not this is an adult bookstore,” Gross continued. “They say it is. They won’t tell us what that means. It’s our position that it’s discretionary whether we even need an adult license. It’s like the Aurora case [involving another alleged adult bookstore]: ‘Substantial and significant,’ what does that mean? Some places it means, 5 percent; other places it means 40 percent or 50 percent.
"In the Supreme Court case, they assume [Christal’s] is an adult business; they make that absolutely clear. The lower courts did rule it’s an adult business but that was back in 1999 and 2000 when we were litigating that. This case has been going on for five years now.”
Part of Gross’ problem now is that the Supreme Court, while affirming the requirement for a prompt judicial determination, ruled that Colorado’s existing bureaucratic and court systems were sufficiently well constituted to provide that prompt determination without any necessity to change any current procedures.
“First, ordinary court procedural rules and practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm,” wrote Justice Breyer. “Indeed, where necessary, courts may arrange their schedules to 'accelerate' proceedings.”
But after his experiences in this case, Gross isn’t about to trust the historical “promptness” of the courts on issues involving adult venues.
“They’re kind of trying to have it both ways,” Gross explained. “They say prompt judicial review means prompt judicial determination but they’re not going to enforce prompt judicial determination as set forth in Freedman; they’re going to leave that up to state courts and the municipalities on a case-by-case basis, which is going to lead to more litigation in the state courts. They do caution the cities that they have to be careful, and they do admonish the lower courts to enforce this rigorously, but then they put a lot of faith in them.
“It could have been worse,” he continued. “They could have just said ‘Access is good enough and we don’t care,’ but they did pay lip service; they did give us that point. Right up front there, they say, ‘We reject the city’s argument.’ And that’s where the municipalities have been going all over the country: ‘Access is good enough and determination’s not.’ They didn’t say that. They said ‘Determination is required but it’s not our problem,’ so it’s a very narrow decision, and that’s kind of the trend of the court anyway: Let the states and the lower courts deal with these issues. I don’t think that’s the best approach and I don’t think it’s good for free speech but it wasn’t a complete debacle.”
“So it’s a loss, but it could have been worse, I guess, to sum it up. Any time you lose 9-0, it’s not a good day.”
Gross believes this decision may embolden Littleton to press forward with its claim that, even at 18 percent adult, Christal’s is an adult store, but for now, it’s a waiting game – but at least it’s a waiting game with Christal’s still open for business.
