As it has in terms past, the U.S. Supreme Court will again walk up to the opaque doors and soaped windows of adult businesses, and look around the neighborhood. As they do, the justices will try to determine how and where government is allowed to restrict adult sexual expression.
In one of two cases this term, Ashcroft v. ACLU, No. 03-218, the neighborhood is the cyberspace global village of the World Wide Web. The second case, City of Littleton v. Z.J. Gifts, No. 02-1609, involves a more traditional locale.
The justices venture into those neighborhoods because First Amendment issues keep coming before them. Last term, for example, the court decided cases involving Internet speech, computer child pornography and the location of adult bookstores.
“This is a cutting-edge area of First Amendment law,” says Tom Goldstein, a Washington, D.C.-based attorney who regularly practices before the Supreme Court. “Most of the cases come as a result of lower court decisions invalidating a federal statute in whole or in part.
The Supreme Court will always grant cert in those circumstances.” Others hold a broader view. “Regulating human sexuality and the adult business community is one of the battle lines drawn in the culture wars,” says First Amendment expert Lawrence Walters, a Florida-based attorney who regularly represents adult business clients. “The religious right has made an issue of trying to enforce morality in our society. They have forced the issue, and the courts are feeling the necessity to resolve this battle.”
Observers on the other side of the debate would agree. “The court is taking these cases because they are important to the country,” says Paul J. McGeady, general counsel for the conservative Morality in Media, a New York City-based group that monitors obscenity issues. “We have the lives and souls of our children and our nonconsenting adults at heart in these matters.”
Licensing Adult Businesses
This term, in City of Littleton v. Z.J. Gifts, the court will attempt to resolve an issue that has divided the lower courts for years–the meaning of “prompt judicial review” in adult business licensing laws.
In a 1990 decision, FW/PBS Inc. v. City of Dallas, 493 U.S. 215, the court determined that such laws must include certain procedural safeguards. They include a specified and reasonable time period for decisions on whether to issue or deny a license and the possibility of prompt judicial review if a license is denied.
But the question that has divided both sides is what step in the review process must be prompt. City officials contend that mere access to a judicial forum is sufficient. Adult business litigants counter that prompt review is meaningless unless there is a quick judicial decision.
The court has agreed to tackle the issue in the case of a Littleton, Colo., business called Christal’s, which opened in 1999. The city and the store have been embroiled in litigation over the city’s adult business licensing law. A federal district court granted summary judgment to the city, finding that the law provided sufficient review. But in 2002, the Denver-based 10th U.S. Circuit Court of Appeals ruled that the law violated the First Amendment, adding that prompt judicial review meant a judge must issue a decision. “Given the strong feelings that adult businesses can engender, there must be a prompt judicial determination to ensure that licensing officials do not exceed their authority in their zeal to protect the local community,” the appeals court wrote.
Denver attorney J. Andrew Nathan, who represents Littleton, says, “The problem is that there is no guidance for cities as to how to meet the requirements of prompt judicial review. And if the cities do need to ensure a prompt judicial determination, how do they get one?” Nathan says prompt access to a court is sufficient.
But Michael Gross, the Denver attorney for Z.J. Gifts, disagrees. “The bottom line is that speech cannot wait. Every minute speech is illegally denied, it is a violation of the Constitution. In order for there to be meaningful judicial review, there must be a prompt judicial decision on the merits or a mandatory stay or the issuance of a provisional license before the judicial decision.”
Adds Gross: “The burden should always remain on the government to deny the expression. They can still go get an injunction against any bookstore for many reasons: rats, faulty electrical lines or other health problems. They can go to court and try to shut it down.
But this case deals with a blanket restriction on a certain type of bookstore.” But, says Chattanooga, Tenn., attorney Scott Bergthold, an expert on adult business ordinances, requiring a prompt judicial decision would violate separation of powers.
“It is impossible for cities to guarantee a prompt judicial decision,” says Bergthold, who filed an amicus brief on behalf of the International Municipal Lawyers Association in support of Littleton. “A city council cannot tell a state or federal judge when to rule.”
Nathan and Bergthold say that an inability to resolve the issue hits cities in their pocketbooks. Bergthold points to a 2001 ruling of the Cincinnati-based 6th U.S. Circuit Court of Appeals, which upheld every substantive requirement of a Nashville, Tenn., adult business licensing law except for the issue of prompt judicial review. Deja Vu of Nashville v. Metropolitan Government, 274 F.3d 377. “This resulted in an invalidation of the entire ordinance and forced the payment of substantial attorney fees,” Bergthold says.
Sex on the Web
Adult content comes before the court again in Ashcroft v. ACLU, where the justices will examine the constitutionality of the Child Online Protection Act–for the second time. Congress passed the law in October 1998 in response to the Supreme Court’s 1997 decision in Reno v. ACLU, 512 U.S. 844. In that decision, the high court invalidated key portions of the Communications Decency Act, which criminalized speech on the Internet that was indecent and patently offensive.
Congress came back with a narrower version of COPA that applied to communications made on the World Wide Web that are harmful to minors. However, the Philadelphia-based 3rd U.S. Circuit Court of Appeals, applying the long-established guidelines for obscene speech, ruled in 2000 that the law was unconstitutional because it applied local community standards to a global medium and would force the standards of the most restrictive community upon every other. Reno v. ACLU, 217 F.3d 162.
In 2002, the Supreme Court said that the 3rd Circuit jumped the gun by ruling that COPA was unconstitutional solely on the community standards problem. Ashcroft v. ACLU, 535 U.S. 564. The court remanded the case to the 3rd Circuit, telling the appeals court to consider the other First Amendment challenges. On remand, the 3rd Circuit again invalidated COPA.
For example, the 3rd Circuit ruled that the law’s definition of “harmful to minors” would apply the same standard for 16-year-olds as to 6-year-olds. The court reasoned that some material that would be harmful to young minors would not be harmful for older kids. The court also determined that there were less speech-restrictive means available to protect children from pornography on the Internet, including filtering software.
Now, the case returns to the Supreme Court. Chris Hansen, a senior staff attorney for the ACLU, says the law is unconstitutional for the same reasons that the CDA was struck down. “This is a law that criminalizes speech on the Internet and deprives adults of speech that they are entitled to read.”
McGeady, who filed amicus briefs on behalf of the Justice Department, says the concerns about adult free speech are overblown. “There are provisions in there for adults to get their material. Adults are not deprived at all as long as they prove they are adults. There is only a minimal intrusion, if any intrusion at all. The U.S. Supreme Court has said that minimal intrusions are permitted for the greater good, and the greater good is protecting children from harmful material.”
Many First Amendment advocates believe the ACLU will prevail. “There never has been a law that restricted content/speech on the Internet that has been upheld,” Walters says. “At least six state laws and the Communications Decency Act, Congress’ first attempt at regulating speech on the Net, were all struck down. And last time with COPA, the court did not uphold [the statute]. So I would be surprised if the court upheld COPA this time around.”
Child-protection advocates counter that the Supreme Court will rule that the more narrowly drafted COPA will survive constitutional review. “I have a gut feeling that the court will uphold COPA because we cured all the so-called defects,” McGeady says. Whatever the outcome of these two cases, it is likely the court will continue to take cases involving adult sexual expression.
“There is a constant need of government officials to limit speech,” Gross says. “Censorship has become a lot more sophisticated.”