Sexual License

Sexual License

Sexual License

Oral argument from the court.
Nov. 29 2000 3:00 AM

Sexual License

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Is it just me or has the high court gone a little kooky this week?

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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Small, imperceptible signs: Justice O'Connor has swapped her workaday frilly Beau Brummel cravat for a jaunty, multicolored silk scarf. Justice Breyer is giggling so hard at himself this morning that he can't finish his questions. In decisions handed down today, they're prohibiting the drug-sniffing-dog roadblocks. They're allowing the drug-addled trucker to drive. And they're hearing the medical marijuana case.

Praise the Lord and pass the crystal meth.

Today's case, City News & Novelty Inc. v. City of Waukesha, holds some early promise of kookiness (City News is a purveyor of adult magazines, dirty movies, and sticky-floored "viewing booths"). The case, sadly, offers no smutty books for the justices to peruse and no porn for them to review. It's a boring, vanilla prior-restraint case, on which the Supremes granted certiorari solely to resolve a split among the federal circuit courts.

A prior restraint is not, by the way, the same doctrine Chief Justice Rehnquist invoked when he advised the networks last night that they may not broadcast oral argument of Friday's Florida recount case. That analysis is covered under the long line of "because" jurisprudence for which there are no case citations.

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The Story of Uh-Oh
The first thing you should know about Waukesha (aside from its pronunciation, evidently Walk-e-shaw) is that it involves a Wisconsin adult bookstore that lost its smut-selling license. The bookstore concedes that it violated numerous parts of the city code: It allowed minors to loiter in the store, failed to maintain "an unobstructed view of the booths in the store," and allowed "patrons to engage in sexual acts" inside those booths. So when the city declined to renew City News' annual license, the bookstore did not have much of a substantive defense. So they advanced an argument, claiming the licensing scheme was unconstitutional because it failed to provide "prompt judicial review." Sadly, the constitutional arguments didn't really apply to the facts of this case.

Justice Breyer has a blast with this as he chuckles out a question early in the argument: "You're complaining about X, but X never happened to [your client]. He's out of business on the merits. And he has no plans to go back into business. … It sounds like it should violate some judicial principle [laughing], but I'm not sure which one."

For much of the morning, most of the court grapples with the fact that the petitioner in the case has suffered no harm they might relieve. Nevertheless, as we have learned this week from our aspirants to the White House, you needn't have a real case as long as you have real appellate counsel.

Behind the Green Gore
So, like any other red-blooded American crybaby, City News appealed the city's decision to deny its license, first to the municipality (which affirmed its own decision), and then to the Administrative Review Appeals Board (which affirmed the city's decision), and then to state trial court (which affirmed the city's decision), and then to the Wisconsin Court of Appeals (which, sigh, affirmed the city's decision on all grounds but one), and on to the U.S. Supreme Court. Lesson 1 for Vice President Gore: There is always another bite to be had at that apple as long as someone is willing to bankroll the chewing.

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Today even Justice Stevens finds himself questioning Jeff Olson, the attorney for City News, on just this point. "Why isn't this case moot?" he asks. "Isn't your client out of business?" he asks. "Why is he trying to gain licensure for a business he has no intention to engage in?" he asks.

"My client hasn't forsworn that intention," replies Olson.

"I get the impression you might be representing interests other than the parties to this case," retorts Stevens. "Someone with sufficient interest to finance an appeal to the United States Supreme Court. … I assume he's footing the bills."

In truth, I haven't the faintest notion what Stevens is alluding to here. Perhaps there is some vast right-wing conspiracy of porn purveyors. Regardless, this court doesn't like these facts, this appellant, or this case.

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So why is it hearing it?

Waukesha Does Dallas
There is a split between the circuit courts on a point of prior restraint law left unresolved by a 1990 case called FW/PBS Inc. v. City of Dallas. That case, a patchwork of concurring opinions, raised the issue of what sort of judicial determination is warranted for an adult-business licensing scheme. The court held in the Dallas case that, unlike the cases dealing with prior restraint of movies, dirty book businesses have lesser protections against government licensing schemes. Still, O'Connor wrote in her opinion that smutty bookstores maintain the right to "prompt judicial review in the event the license is denied."

Ten years later, three federal circuit courts have refined FW/PBS to mean that "prompt judicial review" includes a final judicial decision on the merits of the case. Three other circuits have gone the opposite way, holding that "judicial review" means only the right to get into a courthouse. This whole case turns on the court's determination of what "prompt judicial review" might mean, although only Justice O'Connor seems concerned with this fact. So concerned is she that she grills the city attorney from Waukesha, John Meitz, on whether prompt review means "a prompt decision or prompt access," then immediately jumps James Feldman from the U.S. solicitor general's office with the same question.

Feldman replies that this was the question on which certiorari was granted, despite the fact that every one of the justices who speaks today seems inclined to make this case go away on some other grounds.

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Lesson No. 1 to Gov. Bush: Regardless of how compelling the underlying legal issue, this is not a court inclined to decide cases it deems moot, unripe, or otherwise irrelevant. Once these justices decide, as they plainly did this morning, that there is no meaningful relief to be granted, they will make a case disappear.

The Devil in (Paula) Jones or Deep Gloat
The Big Issue underlying this case is time, and it's the real reason amicus briefs have been filed on the side of the bookstore by groups including the Florida Cannabis Action Network and the American Booksellers Foundation for Free Expression. The kicker in these prior restraint cases is that lots of good smutty speech that is otherwise protected under the First Amendment can be suppressed by government entities who delay making decisions, thus forcing the smut purveyors to shut down. This is why prior restraint law shifted the burden of proof from the smut seller to the censor/government in Freedman v. Maryland, the 1965 case setting out the governmental requirements in prior restraint cases.

I quote here from Justice Brennan's concurrence in FW/PBS: "In distributing the burdens of initiating judicial proceedings and proof, we are obliged to place them such that we err, if we must, on the side of speech, not on the side of silence." The idea being that only with a shift in the burden of proof, and with the promise of speedy judicial resolution on the merits, can the porn seller be assured that his speech will continue to be heard while the dispute works its way through the courts. As Justice Scalia points out today: "How many adult bookstore owners keep going out of business? We had this same question in Paps ( City of Erie v. Pap's A.M., Kandyland). It must be an occupational hazard."

"I am not aware of the economics," replies Feldman earnestly.

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The economics are that if a bookseller has to wait around for years for a court to hear her petition, life will roll onward, her store may be shut down, and speech (albeit sexy speech) may have been suppressed by the state. Lesson No. 2 to the vice president: The wheels of justice turn far more slowly than do the wheels of life.

The Good, the Bed, and the Snuggly
If today's oral argument presages anything about Friday's Battle of the Titan-Babies, it's this: The Supreme Court does not want to look stupid. It does not want to get involved in disputes which are either: a) already over; or b) not yet begun. Moreover, the court is not above granting certiorari on a case, then shaming appellate counsel with circuitous questions about how moronic the facts are and how ridiculous it was to have appealed in the first place.

The other life truth underlying today's argument is that this court cannot stop time, and even if it could, it wouldn't. Life goes on in Waukesha, in Tallahassee, and even in places with names that don't sound funny. Like Washington.

The dispatcher wishes to thank the two Alexs (Benn and Lithwick) for their assistance with pornographic film titles.