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1 IN THE SUPREME COURT OF THE UNITED STATES

2 - - - - - - - - - - - - - - - -X

3 CITY NEWS AND NOVELTY, INC., :

4 Petitioner :

5 v. : No. 99-1680

6 CITY OF WAUKESHA :

7 - - - - - - - - - - - - - - - -X

8 Washington, D.C.

9 Tuesday, November 28, 2000

10 The above-entitled matter came on for oral

11 argument before the Supreme Court of the United States at

12 10:11 a.m.

13 APPEARANCES:

14 JEFF S. OLSON, ESQ., Madison, Wisconsin; on behalf of

15 the Petitioner.

16 CURT MEITZ, ESQ., City Attorney, Waukesha, Wisconsin; on

17 behalf of the Respondent.

18 JAMES A. FELDMAN, ESQ., Assistant to the Solicitor

19 General, Department of Justice, Washington, D.C.; on

20 behalf of the United States, as amicus curiae,

21 supporting the Respondent.

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1 C O N T E N T S

2 ORAL ARGUMENT OF PAGE

3 JEFF S. OLSON, ESQ.

4 On behalf of the Petitioner 3

5 ORAL ARGUMENT OF

6 CURT MEITZ, ESQ.

7 On behalf of the Respondent 24

8 ORAL ARGUMENT OF

9 JAMES A. FELDMAN, ESQ.

10 On behalf of the United States, as amicus curiae,

11 supporting the Respondent 39

12 REBUTTAL ARGUMENT OF

13 JEFF S. OLSON, ESQ.

14 On behalf of the Petitioner 50

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2

1 P R O C E E D I N G S

2 (10:11 a.m.)

3 CHIEF JUSTICE REHNQUIST: We'll hear argument

4 now in Number 99-1680, City News and Novelty, Inc. v. the

5 City of Waukesha.

6 Mr. Olson.

7 ORAL ARGUMENT OF JEFF S. OLSON

8 ON BEHALF OF THE PETITIONER

9 MR. OLSON: Mr. Chief Justice and may it please

10 the Court:

11 This case is controlled by the interaction of

12 four principles, all designed to eliminate the danger of

13 censorship by delay, from this Court's decisions on speech

14 licensing schemes. First, in order to comply with the

15 First Amendment, a speech licensing scheme that acts as a

16 prior restraint must guarantee an applicant a prompt final

17 administrative decision in a short, fixed period of time.

18 QUESTION: Mr. Olson --

19 MR. OLSON: Yes.

20 QUESTION: -- is this a speech licensing scheme?

21 MR. OLSON: It is a speech licensing scheme

22 because it requires a license to operate an adult book

23 store.

24 QUESTION: But it's different than Freedman, in

25 the sense that Freedman was expressly designed to permit

3

1 or not permit speech based solely on its content.

2 MR. OLSON: You're correct.

3 QUESTION: And it seems to me this is not that

4 at all. I recognize the analogy, but Freedman is not

5 directly controlling, it seems to me.

6 MR. OLSON: You're right that the Waukesha

7 ordinance doesn't permit licensing decisions on its face

8 to be made on the basis of content, but the Court I

9 believe has recognized in City of Lakewood and in FW/PBS

10 that licensing decisions that are not expressly content-

11 based can still be used for covert content-based

12 censorship.

13 QUESTION: Are you claiming that any of the

14 reasons that were given -- this is a case of a license

15 that was in existence, and it was -- it's a nonrenewal

16 case, right?

17 MR. OLSON: Yes.

18 QUESTION: And the nonrenewal was based on

19 violation, alleged violation of the terms of the license.

20 Are you contesting that any of those terms, like no minors

21 on the premises, open booths, that any of those terms

22 violate the First Amendment?

23 MR. OLSON: Not in this case. We will do that

24 in some future case, but we have not made that argument in

25 this case and we don't think the Court should reach that

4

1 argument in this case. This is a case about procedures,

2 not about the substantive disqualification criteria.

3 QUESTION: I suppose a book store, or a

4 newspaper has to -- they're in a building, and I guess

5 they can't have holes in the floors and unsafe electricity

6 and maybe they wouldn't be able to run a business if they

7 did. They don't have to meet -- for that safe electricity

8 or working conditions and so forth there isn't some

9 special test, is there?

10 MR. OLSON: Oh, all of those laws of general

11 application that don't act as prior restraints targeted at

12 speech can be enforced.

13 QUESTION: How are the violations here targeted

14 at speech? I believe that the accusation was they were --

15 involve conduct, nothing to do with speech in the books in

16 the store.

17 MR. OLSON: They're targeted at speech in the

18 sense that they're tied to the license, and they're tied

19 to the permission to continue your ongoing speech.

20 QUESTION: Well, so you have a book store, and

21 it says you can have a license to sell a book store, open

22 your book store provided there isn't electricity running

23 all over the floor and electrocuting people.

24 MR. OLSON: Those --

25 QUESTION: Is that then subject to some special

5

1 test because it's a book store?

2 MR. OLSON: If the requirement to have the

3 electricity only applies to book stores, yes, it would be

4 subject to the Freedman guarantees. If it applies to

5 everybody, as all those building code requirements do as

6 far as I know, then they're not subject to the Freedman

7 guarantees, and that's what the Court said in Lakewood.

8 The second principle that I think controls the

9 Court's disposition of this case is that a speech

10 licensing scheme violates the First Amendment if it

11 permits the status quo to be altered to the applicant's

12 detriment during the administrative proceedings.

13 QUESTION: How do you get that from Freedman,

14 because Freedman, the status quo was no speech. That is,

15 the Court said you must have a graphic procedure, because

16 you're not allowing someone to speak. Here, a speaker has

17 been permitted to speak, has a license, and the question

18 is whether it will be renewed. So --

19 MR. OLSON: That's --

20 QUESTION: So you're asking for, the continued

21 speech is the status quo, as distinguished from Freedman,

22 where no speech was the status quo.

23 MR. OLSON: That's absolutely correct. In

24 Freedman and in Southeastern Promotions the Court said

25 that a prior restraint before judicial review can be

6

1 imposed only where it maintains the status quo.

2 Where the status quo is speech, obviously you

3 can't impose a prior restraint prior to judicial review,

4 and in the tail-end of Southeastern Promotions the Court

5 listed the constitutional deficiencies with the law at

6 issue there, and one of the deficiencies listed was that

7 it permitted the status quo to be altered to the

8 applicant's detriment before judicial review.

9 QUESTION: That was another Freedman-type case,

10 wasn't it, where the performance could not go on under the

11 existence.

12 MR. OLSON: It was a new speech case, that's

13 correct, but I believe the Court found that the status quo

14 was altered to the applicant's detriment because the show

15 in the presentation of Hair in Southeastern Promotions had

16 to be postponed and they lost their date for the

17 presentation.

18 We believe that the third principle governing

19 this case is that a licensing scheme that acts as a prior

20 restraint must confer upon an unsuccessful applicant the

21 right to prompt judicial review, and the fourth principle

22 is that --

23 QUESTION: Do you really -- is that really your

24 principle? As I understand your case, it's not prompt

25 judicial review as such, as was the case in Freedman, but

1 here you would be delighted to have delayed judicial

2 review as long as you keep your license until judicial

3 review is over, so what you're really saying, it's not a

4 question of prompt, it's a question of until the end of

5 the judicial road, however long that road is, your license

6 can't be revoked.

7 MR. OLSON: We believe that's what Southeastern

8 Promotions requires, and we believe that's the only way to

9 prevent injury from lack of prompt judicial review.

10 QUESTION: But then if that's the case it's

11 nothing to do with the promptness of judicial review.

12 It's simply that you retain your license until judicial

13 review is over, however long it takes.

14 MR. OLSON: It's right that that's the rule

15 we're urging the Court to find in Southeastern Promotions

16 and FW/PBS and apply in this case, but it's wrong to say

17 that it has nothing to do with the promptness of judicial

18 review, I think, because the question on which the Court

19 granted certiorari is does the licensing ordinance have to

20 contain language to prevent injury from want of prompt

21 judicial review, and the only way to prevent injury from

22 want of prompt judicial review when you're enacting city

23 licensing ordinance is to maintain the status quo,

24 guarantee the status quo --

25 QUESTION: But that can be done by the court.

8

1 If that's constitutionally required, as you say, when you

2 have the ordinance providing for prompt commencement of

3 judicial review, what would go along with the prompt

4 commencement of judicial review is the ability of the

5 court, indeed the obligation of the court, if the

6 Constitution is as you say it is, to immediately issue a

7 stay order preventing the cancellation of the license.

8 Why isn't that sufficient? Why does it have to

9 be in the statute if you provide for judicial review and

10 if, as you tell us, the court having judicial review must

11 maintain the status quo?

12 MR. OLSON: Justice Scalia, it's not sufficient

13 for five reasons. First, the timing of that sort of

14 temporary relief is in the discretion of the circuit court

15 and can depend on lots of factors, including docket

16 pressure --

17 QUESTION: Not if it's constitutionally

18 required, as you tell us. You tell us that the status quo

19 has to be maintained. If that's so, you have a -- you

20 know, a lock on a stay order from the court as soon as the

21 case gets there.

22 MR. OLSON: Well, that really depends on what

23 this Court says in this case. If the Court says in this

24 case, as we urge it to say, that the status quo through

25 judicial review must be guaranteed, then I suppose we

9

1 could go into circuit court and get on the schedule for a

2 motion and have the judge receive briefs and decide our

3 motion and, after a period of time, issue an order

4 implementing this Court's decision.

5 QUESTION: It would also mean that you've

6 brought this case before you have any reason to believe

7 you've been harmed.

8 MR. OLSON: No.

9 QUESTION: I mean, why should we pronounce that

10 advisory opinion? If it is indeed the case, as you say it

11 is, that the court must issue a stay order, why can't we

12 await that event? If and when a court doesn't issue a

13 stay order, then you've been harmed.

14 MR. OLSON: I don't think that a stay order, the

15 possibility of a stay order in the circuit court is an

16 adequate substitute for Freedman safeguards, including

17 maintenance of the status quo as written into the

18 ordinance.

19 QUESTION: Well, the supreme court of Wisconsin

20 held -- was it the supreme court, or the court of appeals?

21 MR. OLSON: Court of appeals.

22 QUESTION: The court of appeals held that what

23 you're asking for was not required here, didn't it?

24 MR. OLSON: The court of appeals believed that

25 the status quo would be maintained through the

10

1 administrative proceedings automatically, and the court of

2 appeals held that it wasn't necessary to maintain the

3 status quo through the termination of judicial

4 proceedings.

5 QUESTION: So under that holding, if you went

6 into the Circuit Court of Waukesha County you might get a

7 stay and you might not.

8 MR. OLSON: Well, we wouldn't have much of a

9 claim on a stay today except by making the arguments from

10 Freedman and Southeastern Promotions that we're making

11 here today.

12 QUESTION: Well, couldn't you argue that the

13 administrative determination by the city was arbitrary or

14 capricious? Isn't that a ground for judicial review of an

15 administrative order?

16 MR. OLSON: We could. That would be an argument

17 going to the merits of the claim and, of course, it would

18 be relevant to the issuance of a stay, because we have to

19 show probability of success.

20 QUESTION: Your position basically is, even

21 though your claim substantively has no merit, you're still

22 entitled to an automatic stay.

23 MR. OLSON: I don't even get to whether we're

24 entitled to an automatic stay in my thinking, because I

25 don't think that the possibility of a stay being imposed

11

1 in a discretionary manner in the circuit court is

2 sufficient to satisfy Southeastern Promotions, Freedman,

3 FW/PBS.

4 QUESTION: It is sufficient if they decide your

5 case -- if the circuit -- you have some claim on the

6 merits. You say they're arbitrary in taking away my

7 license.

8 MR. OLSON: Or some provision is

9 unconstitutional.

10 QUESTION: Yes, all right, you say this, we have

11 a claim on the merits, and you say, judge, decide it.

12 Decide it before we have to close down. Now, if they do,

13 it's fine, right? You have no complaint as long as the

14 judge decides your claim on the merits before you have to

15 shut the door.

16 MR. OLSON: In an as-applied challenge that

17 would be correct, but this is a facial challenge.

18 QUESTION: No, but I'm not saying about this

19 case. Suppose it was always true that the judges would

20 decide on the merits before anyone had to shut the door.

21 MR. OLSON: If that were always true, then --

22 QUESTION: No problem, all right.

23 MR. OLSON: -- the court wouldn't have to worry

24 about a specific guarantee --

25 QUESTION: Fine, then why aren't you better off,

12

1 not worse off, if the court decides a stay before you have

2 to shut down, for after all, a court will give you the

3 stay as long as there's a reasonable probability of

4 success, but the court will allow you to stay open on the

5 merits only if you're right.

6 MR. OLSON: Getting that stay does require us to

7 show a reasonable probability of success on the merits.

8 QUESTION: But to win, you have to win, so

9 you're easier -- it's easier for you to get the stay than

10 it is to win.

11 MR. OLSON: Not -- not really, in terms of

12 timing especially. We can't show a reasonable probability

13 of success on the merits in an administrative review until

14 that administrative record gets to the court, and there's

15 no time limit on that under the unamended ordinance.

16 QUESTION: This case has an air of unreality to

17 it, because in fact your client did get a stay until the

18 end of the judicial road without making a showing of

19 probability of success on the merits and, in fact, the

20 entire case has been now adjudicated on the merits, is

21 that not so?

22 MR. OLSON: That's correct, and we have no as-

23 applied challenge here. This is strictly a facial

24 challenge case.

25 QUESTION: But isn't it also have an air of

13

1 unreality because your client is not in business any more

2 and doesn't intend to go back into business, as I

3 understand the proceedings.

4 MR. OLSON: Our client is still just barely in

5 business operating as a nonadult store, and intending to

6 close even that operation within a matter of days, but as

7 we pointed out in our brief --

8 QUESTION: Why isn't the case moot?

9 MR. OLSON: The case isn't moot because there's

10 a disability from licensure that flows from having

11 violated the ordinance by operating without a license,

12 which I told them they were entitled to do under

13 Shuttlesworth, because --

14 QUESTION: But there's a disability for

15 licensure for a business he has no intention of engaging

16 in, as I understand it.

17 MR. OLSON: Well, there's no showing that they

18 intend to engage in this business, or that they have not

19 applied for a new license and they don't have an

20 application pending now, but they haven't foresworn any

21 intention to apply for a license at some other location in

22 the future.

23 QUESTION: I have the impression -- I may be

24 unfair to you -- that you may be representing interests

25 other than the named party to the case here.

14

1 MR. OLSON: Not -- my client has a real,

2 concrete interest in having a facially valid,

3 constitutional ordinance on the book in Waukesha. City

4 News and Novelty and its officers have real interests in

5 that --

6 QUESTION: Sufficient interest to finance

7 extensive litigation in the United States Supreme Court.

8 I guess that's the answer, right, and of course he's

9 paying the bills, I suppose.

10 MR. OLSON: Yes. The City News and Novelty is

11 footing the bill for this case because they believe

12 they're right, they believe in it's important principle,

13 and they don't want the 5-year disability from licensure

14 that will fall on the corporation and its officers. If

15 they're determined to have been operating without a

16 license in violation of a valid ordinance up until

17 February 14, 2000, which is when they stopped operating as

18 an adult book store, they'd be disabled from licensure in

19 Waukesha for 5 years after that, until Valentine's Day

20 2005.

21 QUESTION: That disability has nothing -- I

22 mean, that disability has something to do with a defect in

23 the system that might have produced a merits decision that

24 was contrary to the facts, or contrary to the law, but I

25 don't see how that disability has anything to do with the

15

1 question of timing that you're now bringing before us. I

2 mean, if, indeed, your client was properly found to be in

3 violation of the substantive provisions of the ordinance,

4 then it seems to me he deserves to be disabled from future

5 licensing.

6 What does that have anything to do with the

7 timing question of, you know, he has to be allowed to

8 continue operation before the adjudication is made? I

9 mean, I see that you have some continuing interest, but

10 it's not an interest that depends at all upon the issue

11 that you're bringing before us here.

12 MR. OLSON: Justice Scalia, they do in the

13 following sense. If there is no valid judicial review

14 path in this licensing ordinance, then there's no valid

15 renewal mechanism, and the whole licensing requirement

16 becomes facially invalid. Then they're entitled to

17 operate without a license.

18 QUESTION: But you're not saying that the whole

19 judicial review mechanism is invalid in the sense that it

20 has produced an unjust or incorrect substantive decision.

21 You're saying that there's one feature of it, namely

22 whether your client was allowed to operate in the meantime

23 that rendered it unfair, but I don't see how that has

24 anything to do with your -- the propriety of preventing

25 your client from operating in the future, once a

16

1 substantive violation has properly been found.

2 Or, you say it can't properly be found, that the

3 entire judicial proceeding is invalidated by reason of the

4 fact that your client could not be allowed to continue

5 operation pending the proceeding?

6 MR. OLSON: My client was allowed to continue,

7 but my client was entitled to have that guaranteed on the

8 face of the ordinance, and we contend that the --

9 QUESTION: Well --

10 QUESTION: There is a -- there was a -- I forgot

11 what the title of the case was, but a decision of this

12 Court explaining that if you were entitled to something as

13 a matter of constitutional right, due process, like

14 notice, it doesn't matter that the notice provision isn't

15 in the law itself, as long as the court insists on it.

16 Then you have no constitutional right that has been

17 violated.

18 MR. OLSON: That's right. There are some of the

19 cases going to the requirement of, for example, explicit

20 and specific and objective licensing standards that

21 recognize that these could be -- these could come from

22 usage or authoritative construction, as well as on the

23 face of the legislation, but here there is no usage or

24 authoritative construction that builds a status quo --

25 QUESTION: Well, do you have -- all we know is

17

1 in your case you were allowed to remain in operation until

2 the end of the line. Do you -- is there anything in this

3 record to show that that doesn't routinely happen?

4 MR. OLSON: Well, as far as I know, this is the

5 only establishment ever to be licensed in Waukesha as an

6 adult book store. There's nothing --

7 QUESTION: So you're saying in another case

8 someone else might suffer the violation of a

9 constitutional right, but certainly that has not been your

10 experience, and I don't know why we shouldn't assume that

11 other cases would proceed in this same pattern and not in

12 some other pattern.

13 MR. OLSON: The Court has held in more than one

14 case that license applicants are entitled more to the hope

15 of the grace -- to more than the hope of the grace of the

16 Government. They're entitled to a guarantee. In other

17 words, maybe they will. Maybe they will let the next guy

18 stay open, too, or maybe they'll say that we let Olson's

19 clients stay open because that was test case, raising

20 constitutional issues about our ordinance and we weren't

21 sure how it was going to come out, now we know, so you've

22 got to close with our nonrenewal decision. We're

23 entitled --

24 QUESTION: Mr. Olson, does the fact that you're

25 making a facial constitutional challenge here in your view

18

1 make any difference on the question of mootness or

2 ripeness?

3 MR. OLSON: Yes, I think it does. I think if we

4 were making an as-applied challenge the -- Justice Scalia

5 would be right in the sense that we haven't suffered any

6 injury, because we were allowed to remain open. The fact

7 that we're making a facial challenge, I think first of all

8 it focuses the Court's attention on the ordinance as it

9 stood in 1995, and that's -- in '96, and that it prevents

10 it from being mooted out by the subsequent amendments to

11 the ordinance that have taken place four times this year.

12 QUESTION: Maybe, is it standing? I mean, as I

13 understand it you're saying -- you're complaining about a

14 procedural flaw, call it X.

15 MR. OLSON: Yes.

16 QUESTION: And as far as your client is

17 concerned, X never happened to him.

18 MR. OLSON: Correct.

19 QUESTION: As far as your client was concerned,

20 it's now been determined that he violated the statute on

21 the merits.

22 MR. OLSON: Correct.

23 QUESTION: And your client says, I'm out of

24 business anyway, I've made an agreement not to try to get

25 back into it.

19

1 Now, it sounds as if that should violate some

2 prudential principle. I just --

3 (Laughter.)

4 QUESTION: I'm not totally sure which one.

5 MR. OLSON: Well --

6 QUESTION: You've looked into this more

7 thoroughly.

8 QUESTION: Can I add one fact before you answer

9 Justice Breyer?

10 MR. OLSON: Sure.

11 QUESTION: Generally the purpose of the facial

12 challenge is to protect third parties who may not be

13 before the court, but here, is it not a fact that the

14 third parties are largely, maybe not entirely protected by

15 the amendment to the ordinance, from the very danger that

16 you're seeking -- the very principle you're seeking to

17 vindicate?

18 MR. OLSON: The third parties are protected from

19 a couple of the original problems. They're protected from

20 indefinite time -- indefinite times in the administrative

21 procedure. But they're not protected from lack of prompt

22 judicial review and lack of preservation of the status quo

23 during judicial review. The third parties out there who

24 will apply for renewal in the future under this ordinance

25 will still face those facial problems with the scheme as

20

1 it stands today.

2 QUESTION: But those third parties will be in

3 exactly the position that your client has been in during

4 the course of this litigation, isn't that correct?

5 What I'm getting at is, the kind of the classic

6 third-party right that we recognize is the right in the

7 case in which the individual defendant in effect says,

8 yeah, as applied to me the ordinance is perfectly

9 constitutional, but there are these other people and as to

10 them it would not be.

11 But here your client is in exactly the same

12 position as the other people, and should that make a

13 difference? One reason why it might make a difference is,

14 if it turns out that this supposedly facially invalid

15 ordinance in practice is applied in a perfectly valid way

16 to you, should we therefore assume that it will be

17 different when the ordinance is applied to third parties?

18 MR. OLSON: I --

19 QUESTION: So I'm wondering whether you're

20 really in a situation in which our cases recognize your

21 right to raise a third-party right where you're in the

22 same boat with them.

23 MR. OLSON: I think your cases prevent you from

24 assuming that we are in the same boat with them. I think

25 they prevent you from assuming that they won't be required

21

1 to close pending judicial review, for example, or that --

2 QUESTION: Well, why aren't you in the same boat

3 with them?

4 MR. OLSON: Because --

5 QUESTION: You say our cases prevent me from

6 making that assumption. Why aren't you?

7 MR. OLSON: We got the grace of the Government

8 and a special dispensation to be allowed to remain open.

9 Future applicants, there's no reason to believe that they

10 will get that, and they are entitled --

11 QUESTION: There's also, usually a champion

12 comes forward and says, other people are going to be

13 chilled, but in this case not only aren't others chilled

14 from getting into this business, but you're being edged

15 out not because of any ordinance, but because a bigger

16 player has taken over and there's not -- and has squeezed

17 you out of the market.

18 MR. OLSON: Maybe not totally out of the market.

19 They might want to apply for a license at some other

20 location.

21 QUESTION: But they are perfectly adequate

22 champion of themselves. It's not like the person who is

23 going to be afraid to demonstrate for fear of being

24 arrested. It's -- I don't see any chill of people like,

25 what is it, the B -- whatever the organization that has

22

1 come into this town with a bigger and better adult book

2 shop.

3 MR. OLSON: Setting that particular organization

4 aside and looking at future operations that might be

5 deciding whether or not to locate in Waukesha, I don't

6 think it's beyond the stretch of the imagination to

7 suggest that they might decide to go elsewhere if this

8 Court decides that Waukesha's ordinance is just fine and

9 you can be nonrenewed administratively for popcorn on the

10 floor, and you have to close until you get a judicial

11 decision on the merits that that's an unconstitutional

12 criterion.

13 QUESTION: Maybe we have been misconstruing your

14 argument. Is your argument not that there is a third-

15 party right that you were raising, but an argument that

16 even as to you in this case, in which you were allowed to

17 operate as the proceedings progressed, even as to you in

18 this case, the statute was simply flatly unconstitutional

19 and therefore the entire proceeding was unconstitutional,

20 even though you weren't shut down pending the

21 determination.

22 MR. OLSON: We do contend that, and we do

23 contend that at least on remand the nonrenewal order will

24 have to be vacated because it was issued pursuant to an

25 unconstitutional licensing scheme.

23

1 And with the Court's permission, I'd like to

2 reserve my time.

3 QUESTION: Very well, Mr. Olson. Mr. Meitz,

4 we'll hear from you.

5 ORAL ARGUMENT OF CURT MEITZ

6 ON BEHALF OF THE RESPONDENT

7 MR. MEITZ: Mr. Chief Justice, and may it please

8 the Court:

9 The petitioner in this case was denied a renewal

10 of its adult license for committing nine separate

11 violations of our municipal code, including permitting

12 minors to loiter and allowing sexual activity to both

13 occur on the premises. The City of Waukesha maintains

14 that a guarantee of a prompt judicial determination, as

15 required in Freedman in the context of a censorship

16 scheme, is neither applicable or required for a licensing

17 ordinance that focuses on the secondary effects of such

18 establishments and targets prior misconduct not protected

19 by the Constitution.

20 The specific issue before this Court, which is

21 before the Court today, is that -- whether such an

22 ordinance, which has neither the effect or purpose of

23 limiting or restricting the content of any commutative

24 materials must provide either a guarantee of a prompt

25 judicial determination, versus the availability or access

24

1 to prompt judicial review for administrative decisions

2 that are made concerning conduct which is unprotected by

3 the First Amendment.

4 QUESTION: Well, if we accept your statement of

5 the question, I think it's perhaps an easier case than I

6 believe they mean to bring, because I think part of their

7 point is that even under a scheme which is justified on

8 the secondary effects analysis, so it's not content-based

9 in the classic sense, even under that scheme, there is

10 still going to be a content restriction on speech if this

11 establishment is shut down, and that is true simply

12 because the nature of the establishment is rather content-

13 specific, so you're going to have a content -- you're

14 going to have an effect which is correlated to content, so

15 that's why I wonder if it's fair for you to say that the

16 ordinance does not have the effect, in addition to not

17 having the purpose of a content restriction, because I

18 think they're saying it does have the effect of a content

19 restriction, and that's why you ought to have some

20 safeguards.

21 MR. MEITZ: In answering your question, Justice

22 Souter, this Court said in the seminal cases, in the first

23 and the plurality of American Mini Theatres, and in

24 Renton, that these types of establishments, adult

25 establishments do have a effect on the surrounding

25

1 environments.

2 The Court said in Renton, the majority said that

3 you are capable of regulating, you have a substantial

4 important interest, and as long --

5 QUESTION: No question.

6 MR. MEITZ: As long as your regulations are

7 justified without regard to the content of what they sell,

8 in this case what they sell or rent, that is content-

9 neutral. Certainly --

10 QUESTION: It is content-neutral for certain

11 purposes, but he is saying that there ought to be some

12 procedural safeguard that recognizes the fact that even

13 these so-called content-neutral limitations based on

14 secondary effects do have an effect on speech, and that

15 effect is at least very closely correlated with content,

16 and he's saying that for that reason, even though you can

17 regulate it -- that's not being contested, is it, as a

18 broad proposition -- even though you can regulate it,

19 there ought to be some limits on your regulation because

20 of the damage that you can and do on a content-basis, in

21 effect.

22 MR. MEITZ: And I think that is clear. As the

23 Court -- a plurality stated in FW/PBS, technically this is

24 a -- requires prior restraint analysis, and we do

25 initially, we provide the objective standards for review,

26

1 because if you don't have, as the case was cited in

2 Lakewood, where there are no standards, you have unbridled

3 discretion, and without any standards there's that hidden

4 idea of censorship, and we provide, as the court of

5 appeals determined, objective, definitive standards.

6 The other key here, as FW said, is you must

7 provide, the licensor must provide a determination in a

8 reasonable, specific period of time.

9 QUESTION: But I think, and I don't want to cut

10 you off, but I think what you're saying -- and this may be

11 fine, but I want to make sure I understand it. You're

12 saying, yes, so long as we meet certain conditions, not

13 all the conditions he wants, we can have an effect on

14 content.

15 MR. MEITZ: I think what we're going to find

16 here is certainly --

17 QUESTION: But isn't that your position?

18 MR. MEITZ: There will be what we consider an

19 incidental burden on content. There clearly will be, but

20 this Court on numerous occasions involving time, place,

21 and manner restrictions where you have in place some

22 restrictions, as long as they're incidental, and

23 incidental as this Court has defined on many occasions, is

24 that the regulation is essential to the furtherance of the

25 interest, and clearly here, our interest, our interest in

27

1 protecting the health, safety, and welfare of our

2 citizens, is geared on not what they're selling, not what

3 they're renting.

4 We're concerned about keeping minors out of

5 these establishments. We're concerned about keeping

6 sexual activity from occurring. We're concerned about

7 peep booths not being obstructed, which would discourage

8 sexual activity.

9 QUESTION: We accept that and he accepts that.

10 All he's saying is, if you're going to regulate on that

11 perfectly legitimate basis, you've got to do it promptly.

12 That's the argument. Why can't you do it promptly --

13 MR. MEITZ: And I --

14 QUESTION: -- and therefore why is it a burden?

15 I mean, that seems to me what the issue is in this case.

16 Why is it a burden that you should not carry?

17 MR. MEITZ: We would agree with that. We

18 believe that the argument of administrative determine --

19 of prompt judicial administrative determination is not the

20 issue before the Court.

21 QUESTION: But do you agree that it's required?

22 MR. MEITZ: Absolutely.

23 QUESTION: Well then, what's the difference

24 between an administrative delay, which you concede the

25 Constitution prohibits, and a judicial delay?

28

1 MR. MEITZ: The big difference is this, and I

2 think there were six justices in FW/PBS v. Dallas that

3 recognized the distinction between content-based

4 censorship schemes and the Freedman analysis, which was --

5 required these safeguards to obviate the dangers of a

6 censorship system, and those licensing ordinance that do

7 not pass judgment on the content of any commutative

8 material.

9 QUESTION: But what sense would it make for the

10 Court to have strict rules about administrative expedition

11 but not judicial, other than what Justice -- the line of

12 questions Justice Scalia was indicating, that there is

13 authority to issue a stay? Other than that, what would be

14 the reason?

15 MR. MEITZ: The reason is, is the requirement

16 for a guarantee of a prompt judicial determination in

17 Freedman is because the licensing scheme in Maryland was

18 passing a determination on the content of what is

19 obscenity. This Court has stated, to obviate the risks

20 associated with that the judiciary has the expertise to

21 make determinations concerning the constitutionality or

22 whether a matter is protected or unprotected. That is

23 clear, that an administrative review body is not the final

24 arbiter.

25 If they want to declare something obscene or

29

1 not, the burden is upon them -- the burden upon them of

2 going to court and proving that is there, and the

3 requirement of prompt judicial determination is because

4 the judiciary has the necessary sensitivity towards what

5 is protected or not protected versus an administrative

6 body.

7 QUESTION: Mr. Meitz, if some kind of provision

8 for prompt administrative review is required in these

9 license revocation cases, do you think this Court has ever

10 decided whether the ensuing judicial review, whether it

11 has to provide for a prompt decision or just prompt access

12 to the courts, to courts having a power to maintain the

13 status quo if the appropriate showing is made.

14 MR. MEITZ: We believe that --

15 QUESTION: Is there a difference between access

16 and final decision and what do you think our cases hold in

17 that --

18 MR. MEITZ: For matters involving censorship or

19 content-based situations, it's clear from Freedman and its

20 progeny, Southeastern, that a prompt judicial, guarantee

21 of a prompt judicial determination is necessary to

22 minimize the risk, and the --

23 QUESTION: You mean final determination?

24 MR. MEITZ: Yes.

25 QUESTION: As opposed to access?

30

1 QUESTION: Yes. However, as the plurality

2 stated in FW, the words availability, avenue, and

3 possibility, that that is appropriate considering the fact

4 that what we are doing here, the municipality is not

5 passing judgment on the content. What they sell is

6 irrelevant. We are making determinations that are within

7 our expertise. We do it every other Tuesday in the City

8 of Waukesha.

9 QUESTION: Well, I'm not clear on what you think

10 is necessary. Is it necessary here that there be a

11 provision on the face of the statute for prompt final

12 judicial decision, or just prompt access to the court for

13 judicial review?

14 MR. MEITZ: Prompt access, Justice O'Connor,

15 because we believe that the purpose, the reason for a

16 prompt judicial determination to eliminate that

17 discouraging effect on the individual film exhibitor to go

18 into court and the expertise, which only the judiciary

19 has, that is not applicable.

20 QUESTION: But it seems to me it would go the

21 other way around. If the administrative agency has

22 expertise, and it's required to expedite, in your case,

23 but the judiciary doesn't, then you're allowing the entity

24 without expertise to delay. That seems to me, you have it

25 backwards.

31

1 MR. MEITZ: Not with regard to matters that are

2 not content-based. If you're making a determination on

3 whether minors are loitering or not, that is within the

4 particular realm of municipal body. They make decisions

5 like that all the time, and that decision is, in effect,

6 final, unless there is an appeal taken, and that's clearly

7 unlike the censorship scheme, where you have to go to

8 court Maryland, if you want this to be declared obscene

9 you better get authorization --

10 QUESTION: I go back to my earlier question. If

11 the premise is that the Constitution requires expedition

12 at the administrative level, why doesn't it have the same

13 requirement at the judicial level? Expertise can't be the

14 answer, because that works against you, it seems to me.

15 MR. MEITZ: The reason it would not be required,

16 you have to look at the underlying rationale of Freedman

17 and why Freedman required a prompt judicial determination,

18 because of specifically what the Court said -- filed like,

19 the 37 photographs. You are not in the position,

20 censor -- you are -- you're in the business of censoring,

21 and you are not sensitive to the protected versus

22 unprotected speech.

23 QUESTION: Well, isn't there something, too, to

24 the idea that when you get into court, you're dealing with

25 a neutral tribunal, whereas perhaps the administrative

32

1 tribunal might be thought not to be neutral.

2 MR. MEITZ: This is true, and I think as you

3 pointed out earlier the deferential standard of review

4 exists virtually in every State that I'm aware of. It's

5 pointed out by the Solicitor General, is whether there --

6 whether the administrative body was arbitrary and

7 capricious, exercises will versus its judgment.

8 QUESTION: Mr. Meitz, would you be making this

9 same argument if what was at issue here was not a statute

10 directed at adult book stores but a statute directed at,

11 let's say, radio stations? It's not addressed at all

12 business, just radio stations.

13 It picks them out, and it addresses the external

14 effects of radio stations. If they're found to be in

15 violation of the sanitary code because they're infested

16 with rats, or because the plumbing is unsafe, or because

17 the electricity is unsafe, their license can be revoked.

18 It seems to me a very parallel situation. Now, would you

19 say that you could have a hearing under that statute

20 directed only at radio stations, and shut down the radio

21 station before the opportunity for complete judicial

22 review has been accorded?

23 MR. MEITZ: If you're obviously not trying to --

24 QUESTION: I am worried --

25 MR. MEITZ: -- control the content, but if it's

33

1 like you said --

2 QUESTION: That's right.

3 MR. MEITZ: -- rats, or whatever, I would say,

4 absolutely, because if you -- you have an interest in

5 maintaining the sanitation and health of the community --

6 QUESTION: Yes.

7 MR. MEITZ: -- and if there happened to be a

8 licensing scheme that allowed them to be shut down, I

9 think the municipality would have a real substantial

10 interest in controlling, and as part of its public --

11 QUESTION: A court would want to inquire into

12 why only radio stations were prohibited from having rats

13 in them, as opposed to every other kind of business, I

14 suppose.

15 MR. MEITZ: I would agree with that, but I

16 think, again I bring the Court back to the seminal cases

17 of American Mini Theatres and Renton. The Court

18 recognized that these secondary effects associated with

19 such establishments are important and substantial, and

20 they allow the municipality some flexibility with dealing

21 with these very serious problems, so yes, in a sense --

22 QUESTION: Those cases just dealt with the

23 location of the business. They didn't go into procedures

24 at all, Renton and Mini Theatres.

25 MR. MEITZ: Renton and Mini Theatres was a

34

1 licensing, albeit you're correct, Justice Stevens, it did

2 involve the zoning, but I think there have been other

3 cases since then, and I'll use -- although not in the

4 adult book scheme, but I will mention Ward v. Rock Against

5 Racism, where there was a clear burden, or incidental

6 burden placed upon speech from the standpoint of how loud

7 the music could be in Central Park, and the interests of

8 the municipality being, you know, the neighbors around

9 Central Park had the right to quiet enjoyment --

10 QUESTION: But again, that didn't have anything

11 to do with the timing of the decision, as I remember it,

12 did it?

13 MR. MEITZ: Well, the Court there analyzed that

14 as intermediate scrutiny, time, place, and manner

15 restriction.

16 QUESTION: I'd just like to get quickly your --

17 what's the procedural doctrine that -- is -- look, they're

18 complaining about X. They weren't hurt by X. They've

19 decided definitely they're not entitled to a license

20 anyway and they're going out of business, all right.

21 They've agreed to that, and yet they want to complain

22 about X. What's the procedural doctrine that bars them?

23 MR. MEITZ: I'm not sure if I understand the

24 question.

25 QUESTION: Well, you don't think they ought to

35

1 be here making this argument. You called it moot, or --

2 we just went --

3 MR. MEITZ: Yes.

4 QUESTION: Remember what I just went through

5 with him?

6 MR. MEITZ: Yes.

7 QUESTION: I want to know, what's the procedural

8 doctrine that says we can't get to the merits of this?

9 MR. MEITZ: I -- the reason we brought this

10 issue to the Court's attention, and for the very limited,

11 unique situation, was the issue upon which you granted

12 review, and that is whether you require a prompt judicial

13 determination. The fact whether it was expedited or not,

14 they were not injured. They were allowed to stay open,

15 and that -- again, we would prefer that this matter be

16 litigated on the merits. We have many municipalities --

17 QUESTION: I just want the name of the doctrine.

18 What is the law that stops them from doing --

19 MR. MEITZ: I would cite Asarco from the

20 standpoint at least that you have to have some kind of

21 likelihood of redress that's available from this Court,

22 and it's very speculative at this point in time.

23 QUESTION: But you called it moot. You did

24 label it mootness, as opposed to standing, because I

25 suppose, on the theory that going in, when this whole

36

1 thing started, they appeared to be -- to have a live

2 interest in this, but now at the end of the line they

3 haven't maintained that interest. I thought that's what

4 you were saying, but maybe not.

5 MR. MEITZ: Only since the Court granted this

6 petition for review, we felt it was our obligation to

7 bring it to your attention because of the limited issue

8 upon which you granted the review, not because we amended

9 the ordinance.

10 QUESTION: Well, is the -- is this any more moot

11 than Pap's and Erie was moot?

12 MR. MEITZ: I think it's distinguished from

13 Pap's, because one, as the Court stated in Pap's, they

14 were -- this is clearly not an attempt by us -- they

15 arrived at a favorable decision from the lower court,

16 number 1. Number 2, we don't know what -- as Justice

17 O'Connor said in Pap's, there's some ongoing injury that

18 occurred in that case to the City of Erie --

19 QUESTION: The difference seemed to me to be, in

20 Pap's it's solely a question of mootness. Here there's a

21 different thing. The additional thing is that they were

22 never hurt by the provision of which they're complaining.

23 MR. MEITZ: And that's exactly why we brought

24 that to the attention --

25 QUESTION: I know, and I'm trying to look for

37

1 the doctrinal handle.

2 MR. MEITZ: Yes, and we look at it, if the Court

3 would have granted cert on all issues that would have been

4 a different case, because that might, if you were -- the

5 standards issued, or there was some impartiality question

6 of City of Waukesha panel, then that would maybe undermine

7 the entire licensing process, but this was a very limited

8 issue, and we fail to see how this -- how they are harmed

9 by this, or there's any redress likely by this Court.

10 The Court here is -- there's 21,000

11 municipalities in this country, approximately, all of

12 which have a substantial interest and -- in seeing --

13 preserving the quality of urban life in America.

14 QUESTION: May -- I'm sorry, may I just go back

15 to this other issue, and I want to ask you a question

16 about your ordinance.

17 They're out of business now, I take it. They're

18 not -- they don't wish to operate at the moment.

19 MR. MEITZ: That's my understanding.

20 QUESTION: Okay.

21 MR. MEITZ: They're closing down this week.

22 QUESTION: Now, if they were to win their case,

23 would they be entitled to a license renewal under your

24 ordinance, even though they do not at the present time

25 wish to operate the business?

38

1 MR. MEITZ: We don't believe so, because of the

2 narrow issue before the Court.

3 QUESTION: Well, I'm not -- no, but I'm not

4 asking about the issue before the Court. I'm asking a

5 question about your ordinance. If they were to win this

6 case and they come to you and say, we don't intend to

7 operate this business, but we'd like a license, does your

8 ordinance provide for granting them a license?

9 MR. MEITZ: They could be granted a license if

10 they were -- if they're found not to have committed a

11 violation over the past 5 years. The offices --

12 QUESTION: You license businesses that don't

13 intend to operate?

14 MR. MEITZ: If they don't operate, no, we would

15 not give them a license.

16 QUESTION: Well, that was my question. As I

17 understand it, they don't intend to operate. They say,

18 okay, we've won our case. We don't intend to operate,

19 give us a license. Can they get a license under your

20 ordinance?

21 MR. MEITZ: No.

22 QUESTION: Thank you, Mr. Meitz.

23 Mr. Feldman, we'll hear from you.

24 ORAL ARGUMENT OF JAMES A. FELDMAN

25 ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE

39

1 SUPPORTING THE RESPONDENT

2 MR. FELDMAN: Mr. Chief Justice, and may it

3 please the Court:

4 It's our position that the city's ordinance in

5 this case satisfies First Amendment procedural standards

6 in that prompt judicial review is available and therefore

7 the judgment below should be affirmed.

8 QUESTION: You mean access to review, as opposed

9 to decision-making?

10 MR. FELDMAN: Yes. I think that actually is the

11 question on which the courts of appeals were divided, and

12 that's the question that the Court ought to reach and

13 decide, whether what's necessary is access to prompt

14 judicial review, or a final judicial determination on the

15 merits within a particular period of time.

16 QUESTION: Mr. Feldman, are those cases

17 involving renewals, or initial issuance of licenses?

18 MR. FELDMAN: I think all of the -- at least all

19 of the court of appeals decisions I think were initial

20 licenses.

21 QUESTION: Do you think the considerations are

22 the same in the two situations?

23 MR. FELDMAN: Yes, I do. I think there are

24 differences in a due process analysis between someone who

25 has applied for renewal of a license and hasn't gotten the

40

1 renewal and has a property interest, perhaps, in that

2 license, and that may have due process implications, but I

3 think from the standpoint of the First Amendment the

4 question is, is there going to be a period of time during

5 which the expression doesn't occur, or does occur, and

6 it's just an interest in expression, and it doesn't matter

7 whether before that time the person was licensed and

8 had -- expression occurred or not.

9 QUESTION: Of course, the status quo is entirely

10 different, because in one case the status quo is that the

11 First Amendment materials are being sold, and in the other

12 they're not in -- they're not being sold.

13 MR. FELDMAN: I think that's true. I think that

14 status quo issue has to -- may have to do with a due

15 process analysis.

16 QUESTION: Yes.

17 MR. FELDMAN: From the standpoint of the First

18 Amendment, the Court's references in Freedman and the

19 other cases to maintaining the status quo was -- in the

20 context of those cases what that meant is, there can be a

21 period of time during which the expression doesn't occur,

22 and I think that's the same principle that applies here.

23 There can be a period of time in this case pending

24 judicial review, as long as the judicial review is

25 available, during which the expression doesn't occur.

41

1 I think what's necessary in this context is, the

2 license applicant has to have the availability of -- has

3 to be able to go immediately into court once the

4 administrative decision is made, the licensee has to have

5 the ability to get temporary or preliminary relief if the

6 facts of the case warrant it, and there has to be no

7 particular obstacles that are placed in the licensee's

8 way, and if all of that is satisfied, then the court is in

9 the position to safeguard the licensee's interest and no

10 further requirements are necessary.

11 QUESTION: So you think the availability of

12 temporary relief on a substantial showing is a necessary

13 component of the review?

14 MR. FELDMAN: It's not directly presented here,

15 because that is available under this statute, but yes, I

16 think it's probably -- if you had a scheme -- and they are

17 unusual, but I think they may exist here and there. Where

18 a court doesn't have the power to grant the temporary

19 relief, I think that would raise other -- that would raise

20 First Amendment concerns.

21 I think --

22 QUESTION: Mr. Feldman, does the Government have

23 a position on mootness, or whatever you want to call it,

24 or the justiciability of this case at this time in its

25 current posture?

42

1 MR. FELDMAN: I think it's our position that

2 essentially for the reasons given by the petitioner, that,

3 although it might be a close question, the case is

4 probably not moot. There still is some continuing

5 interest that the petitioner has in the case.

6 QUESTION: Why do these adult book store owners

7 keep going out of business and not intending to get back

8 in? I mean, we had the same question in Pap's. It's an

9 occupational hazard, I gather.

10 (Laughter.)

11 QUESTION: I don't understand.

12 MR. FELDMAN: I'm really not aware of the

13 economics that lead to that.

14 QUESTION: But how does he have the right to

15 raise the claims of people who are not here whom would be

16 affected by this procedural provision, when he himself is

17 not affected by it?

18 MR. FELDMAN: I think that his -- I think his

19 basic claim is this, is this procedure that the city's put

20 into effect, this licensing procedure, is

21 unconstitutional, and therefore I don't really even need a

22 license, or if I need a license, I ought to be able to get

23 one immediately. That's the basic claim that --

24 QUESTION: He's saying the whole thing is

25 unconstitutional because --

43

1 MR. FELDMAN: Right.

2 QUESTION: -- it doesn't have sufficiently quick

3 judicial review, which he himself wouldn't have been

4 affected by.

5 MR. FELDMAN: That's right, but I -- the fact

6 that in this particular case he wouldn't have been

7 affected by it --

8 QUESTION: Can you think of another case where

9 it was that distant and somebody was allowed to raise

10 somebody's First Amendment rights when the other people

11 were perfectly able to raise it themselves?

12 MR. FELDMAN: Well, I think the FW/PBS case, for

13 example, or in the Lakewood case, I think in a couple of

14 those cases you've had people who say, that there are

15 these -- that there are First Amendment procedural

16 safeguards that are required, and the party is able to go

17 into court and say, his claim is that the scheme is

18 unconstitutional. Now, I'm not -- we don't agree that it

19 is --

20 QUESTION: Even though it doesn't affect them at

21 all. Even though they're not affected and the other

22 people --

23 MR. FELDMAN: They're not affected in this case.

24 I suppose the theory would be that when he goes for

25 renewal again he might be affected, or that he --

44

1 QUESTION: Well, if the theory is if he goes for

2 renewal again and he's not going back into the business,

3 it's a little far-fetched, isn't it?

4 MR. FELDMAN: Right. I think -- yes.

5 QUESTION: Well, I take it that the classic

6 Thornhill doctrine, where I'm allowed to raise somebody

7 else's rights, is because it's a content-based statute,

8 and this is not content-based.

9 MR. FELDMAN: That's right, and I think that's

10 the crucial -- this is not contents-based, it's true, but

11 although in the FW/PBS case, which was identical to this

12 in terms of whether it was content-based, the Court said

13 the party could also raise these procedural interests,

14 First Amendment interests, could make a challenge to the

15 constitutionality of that scheme.

16 I do think that on the merits the important --

17 the crucial point here is that the decisions the city

18 makes are not content-based. Unlike in a situation like

19 Freedman, where the Court said, this Court said that a

20 reviewing court has to be able -- has to -- is necessary,

21 because what the State was doing was looking at the

22 particular movie and making a judgment based on that

23 content about whether that movie should be allowed.

24 QUESTION: Can you explain to me why the

25 administrator must act promptly, but the judiciary does

45

1 not?

2 MR. FELDMAN: Yes, I hope so. I think in -- in

3 FW/PBS what the Court held was that some of the Freedman

4 requirements are not necessary in this context and, in

5 particular, it said the city doesn't have to go to court.

6 You can let the other party go to court and the city

7 doesn't have to bear the burden of proof when it goes to

8 court, and I think the point of that decision was that the

9 municipal decision here, since it's not content-based, can

10 be allowed to go into effect and have final effect even

11 with no judge ever looking at it.

12 In the Freedman context, it's quite different.

13 In the Freedman context, what the Court was saying, we

14 don't want this censor's decision to go into effect for

15 any significant period of time without a judge looking at

16 it. It's not really a final determination of law until

17 you go into court, until a judge has a chance to look at

18 it and decide whether the material --

19 QUESTION: I thought --

20 MR. FELDMAN: -- is constitutionally protected.

21 QUESTION: Am I wrong, I was thinking, look,

22 normally where your courts are at stake a preliminary

23 injunction is good enough, but that isn't good enough

24 where it's the administrator, because the administrator

25 might not be as fair.

46

1 MR. FELDMAN: I'm not sure I understand the

2 question.

3 QUESTION: Well, the reason that you have to

4 protect them more about -- against the administrator than

5 a judge is, you think, well, the judge will be fair. He

6 sees irreparable injury, and if there's some probability

7 of success he'll give you the injunction.

8 MR. FELDMAN: That's correct.

9 QUESTION: But you have to be tougher than that

10 on administrators, because they're already taken a side

11 and they're not judicial and so forth.

12 MR. FELDMAN: That's correct. I was only making

13 the point that there was a unique feature present in a

14 Freedman-type case, which is, you don't want any effect to

15 be given, or any substantial effect to be given to the

16 administrative decision because it's a content-based

17 decision on the content of that speech. You don't want

18 any effect to be given to that, basically, until it gets

19 into court.

20 Here, the point of FW/PBS was, that can have

21 some effect as long as the proper procedures are required,

22 and --

23 QUESTION: Excuse me, until it gets to the

24 court? Are you saying that if it's a content-based

25 restriction you cannot impose it until the judicial review

47

1 is complete?

2 MR. FELDMAN: No. No, but I do think that the

3 Freedman safeguards were designed so that it has a very

4 limited effect, and that was the reason why in Freedman

5 you needed the judicial determination, not just the access

6 to the judge, to be within a very prompt period of time,

7 because there was a concern that that administrative

8 decision just shouldn't have a final effect until -- not

9 for a very long time, only for the minimum possible time,

10 until the judge decides the --

11 QUESTION: Why wouldn't a stay by the judge, if

12 the judge thought there was any question about it, why

13 wouldn't that have sufficed in that context as well?

14 MR. FELDMAN: That would, but I think you could

15 look at the Freedman decision --

16 QUESTION: Yes, but that would be changing the

17 status quo.

18 MR. FELDMAN: Excuse me.

19 QUESTION: That would be changing the status

20 quo. The State problem is different in the two

21 situations.

22 MR. FELDMAN: The stay, in my view, in our view

23 those are really procedural due process issues and not

24 First Amendment issues, but I think that would be

25 sufficient. I think you can look at the Court's decision

48

1 in Freedman as essentially saying that the -- saying that

2 either a judge has to grant a stay in each one of these

3 cases regardless of the merits, or there has to be a

4 prompt judicial determination within a very short period

5 of time.

6 QUESTION: Yes, but the stay in the case

7 involving an initial issue, a stay would be a mandate to

8 grant the license, rather than a stay to maintain the

9 status quo.

10 MR. FELDMAN: That's correct. That's correct.

11 QUESTION: So it's really not a stay, it's more

12 of a mandamus.

13 MR. FELDMAN: That's correct, but I -- that's

14 correct. That's correct, but I do think the difference is

15 that in the initial -- whether, in -- under a procedural

16 due process analysis there is a difference. For the First

17 Amendment the question is, is that speech occurring during

18 that period of time, and how long a period of time can

19 that be allowed to happen.

20 The decisions that the city makes in a scheme

21 like this are decisions about things like whether there

22 were minors in the store, what was the age of the people,

23 were they there, were they not there, were the booths

24 covered or were they not covered so that you could be able

25 to tell what was going on inside them, was there sexual

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1 activity that some of the patrons were engaging in or not.

2 Those are very, very different from the kinds of

3 decisions that were made in the Freedman context, and

4 since those decisions are the kinds of things that

5 municipalities make in generally in enforcing police

6 power-type ordinances, there's no reason for them not to

7 be given, in fact, when they make them.

8 QUESTION: Thank you, Mr. Feldman.

9 Mr. Olson, you have 4 minutes remaining.

10 REBUTTAL ARGUMENT OF JEFF S. OLSON

11 ON BEHALF OF THE PETITIONER

12 MR. OLSON: Thank you. If I'm operating a radio

13 station and the city takes my license away because I've

14 let the fence around my tower get into slight disrepair,

15 and my defense is that the provision of the ordinance that

16 says you can lose your license for having your fence in

17 disrepair slightly is unconstitutional, I can't even raise

18 that defense until I get to court, and if I don't get

19 prompt judicial review or a stay of the status quo and be

20 allowed to operate until my judicial decision, I will in

21 all likelihood be out of business and I won't have any

22 effective judicial review on that constitutional defense,

23 and the administrative process can't touch that

24 constitutional argument.

25 This Court's decisions are clear that delay in a

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1 licensing process can lead to content-based censorship

2 just as easy as lack of standards, even in a situation

3 where licensing decisions are not expressly based on the

4 content of the material.

5 Lakewood I think also warns us that an ongoing

6 business is a more likely target of content-based

7 discrimination in the licensing process at the

8 administrative level. The --

9 QUESTION: Then I don't understand why the

10 proper answer isn't, because there is this danger, the

11 court will look at it case-by-case and if, indeed, this is

12 a situation where the administrator is abusing authority

13 to disguise what is really content-based regulation, the

14 court can say in that situation, we put a freeze on it.

15 We allow you to keep your license pending the decision.

16 But if there's no basis for that, so that it is

17 just a time, place, and manner-type restraint, why should

18 you be able to maintain the status quo, which is, allowed

19 to go on with the business, in face of very serious

20 charges of violations that have nothing to do with the

21 content of the books and tapes that are sold?

22 MR. OLSON: On the face of the ordinance, those

23 violations may or may not be very serious. Nonrenewal is

24 required for one single, trivial violation of a provision

25 of the ordinance that may well be unconstitutional. We

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1 can't test the constitutionality of that provision on the

2 face of the ordinance until we get to court.

3 There are really large numbers of people out

4 there, highly motivated, with influence in municipal

5 affairs, who are waiting for this Court to give them an

6 opening for the covert censorship of sexually explicit

7 speech through delay of licensure, or through any other

8 method that allows room for indirect action.

9 Not only my client, as an adult book store, but

10 other people who are engaging in unpopular speech and

11 mainstream media ask this Court not to create that opening

12 for covert censorship by delay of the judicial review

13 until that delay becomes fatal to many businesses who

14 won't have meaningful judicial review because they'll just

15 die on the vine while they're waiting for a judicial

16 decision.

17 A temporary injunction that they have to take

18 the burden of getting in circuit court is not going to be

19 an answer. First of all, it's the kind of cumbersome and

20 time-consuming and expensive measure that, as Justice

21 Harlan, concurring in Shuttlesworth, said, you shouldn't

22 have to engage in to pursue your free speech rights, and

23 second, it's a flawed process because you have to wait for

24 the administrative record to prove you've got a chance of

25 prevailing.

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1 CHIEF JUSTICE REHNQUIST: Thank you, Mr. Olson.

2 MR. OLSON: Thank you.

3 CHIEF JUSTICE REHNQUIST: The case is submitted.

4 (Whereupon, at 11:12 a.m., the case in the

5 above-entitled matter was submitted.)

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