Free Speech Defeat: Supreme Court Sides With Littleton, Colorado

A recent unanimous U.S. Supreme Court decision -- in a case in which chain store Christal's challenged a Littleton adult-business licensing ordinance on the grounds that it violated the retailer's First Amendment rights by not allowing for prompt judicial review -- ruled in favor of the city ordinance. And, while the judges' decision confirmed that First Amendment cases required a prompt review and ruling, they noted that accelerated procedures with two-to-three day time limits do not apply to city ordinance licensing.

The Supreme Court ruled that the Littleton city ordinance satisfied the First Amendment requirement for prompt judicial determination, without defining a timeframe for licensing cases. The result, the groups contend, is that the speed of a judicial review is left up to the discretion of the judges involved in a particular case, and that this could impact a retailer's right to free speech because, when denied a permit, retailers are generally either facing closure or are being prevented from opening.

"The decision is very disappointing," said Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), one of the groups that filed an amicus brief on behalf of plaintiff Z.J. Gifts, owner of Christal's bookstore. "It ignores the fact that a general bookstore could one day find itself denied a license to operate as an 'adult' business. If this happens, the store must have the right to a prompt resolution of its appeal by the courts. The Supreme Court is satisfied that this would occur, but we will continue to worry. Obviously, ABFFE will try to help any bookstore in those circumstances."

In 1999, Christal's bookstore -- a portion of which is adult-oriented -- opened in Littleton, Colorado, in an area not zoned for adult bookstores. Instead of seeking a license under the city's adult bookstore ordinance, Z.J. Gifts went to court to challenge the ordinance on its face, claiming it violated the First Amendment, according to the First Amendment Center. The store also argued that it was not a so-called sex shop since only part of its merchandise was adult in nature, as reported by www.TheDenverChannel.com.

The 10th U.S. Circuit Court of Appeals ruled in favor of Christal's. While recognizing that First Amendment harm can be done when the government delays or restricts free expression, the court noted that the city's judicial procedures did not guarantee a prompt judicial decision on zoning appeals when license applications were rejected, as reported by the First Amendment Center. The U.S. Supreme Court agreed to review the case to clarify whether or not the First Amendment guaranteed a prompt ruling from the courts, or simply prompt access.

In the amicus brief -- filed on behalf of Z.J. Gifts by ABFFE, Association of American Publishers, Comic Book Legal Defense Fund, Freedom to Read Foundation, International Periodical Distributors Association, Publisher's Marketing Association, and Video Software Dealers Association -- the groups wrote:

"Prompt access [to courts] alone is a meaningless right. When a retailer is faced with closing or is being prevented from opening, the ability promptly to file for judicial review has little value unless accompanied by a prompt decision and an intermediate stay. A prompt filing followed by a judicial reversal two years later does not adequately protect the First Amendment rights of the vindicated business."

The higher court handed down its unanimous decision, which reversed the Appeals Court ruling, on June 7, 2004. According to First Amendment Center, it is expected that there will be a new round of litigation to sort out the meaning of the high court's decision as it applies to efforts by local governments to restrict or eradicate adult bookstores. --David Grogan