City of Littleton v. Z. J. Gifts D-4, L. L. C.
The Supreme Court upheld a Colorado city's adult-business licensing ordinance, ruling that ordinary state court review procedures satisfy the First Amendment as long as judges stay alert to the risk of speech-suppressing delay.
The decision clarifies that cities don't need to write special expedited-review deadlines into their licensing ordinances, so long as their state courts' normal rules can, and do, move quickly when a license denial threatens to silence a business.
“A delay in issuing a judicial decision, no less than a delay in obtaining access to a court, can prevent a license from being "issued within a reasonable period of time."”
Explains why the First Amendment requires courts to decide licensing appeals promptly, not just accept them quickly.
How it got here: A federal trial court rejected the store's claims; the Tenth Circuit ruled Colorado law didn't guarantee prompt judicial review, and the city sought Supreme Court review.
The Case in Depth
What happened
Littleton, Colorado required stores selling sexually oriented adult materials to obtain an "adult business license" and denied licenses for reasons like zoning violations or unpaid taxes. A store called Z. J. Gifts opened an adult bookstore in a location not zoned for such businesses, then sued to challenge the licensing ordinance as unconstitutional on its face rather than applying for a license or appealing a denial.
The question before the Court
When a city denies an adult bookstore's license, does the First Amendment require the city to guarantee a fast court decision, or just fast access to a courtroom?
Why it matters
Cities that license adult bookstores, video stores, and similar businesses can rely on their state's regular court procedures instead of drafting special fast-track review rules into local ordinances. Businesses denied a license still have a path to challenge that denial, but must generally do so case-by-case rather than through a broad claim that the ordinance itself is unconstitutional for lacking built-in speed guarantees.
What changes now
The case is reversed, meaning the Tenth Circuit's ruling against the ordinance is undone and the ordinance stands as constitutional on its face. This is a final merits decision, not a temporary order. Individual applicants denied a license can still bring case-specific claims if they experience actual unreasonable delay in getting judicial review, but the ordinance itself no longer faces a facial First Amendment challenge on this ground.
What this does not decide
The Court decided only that Colorado's ordinary court procedures are adequate on the face of this ordinance, given its objective, nondiscretionary licensing criteria. It left open whether delay in a specific future case might still violate the First Amendment, and did not rule on Littleton's separate administrative-delay provision, which the city had already amended.
Concurrences and dissents
Concurrence in part — Justice Stevens
“But the mere possibility of promptness is emphatically insufficient to guard against the dangers of unjustified suppression of speech presented by a censorship system of the type at issue in Freedman”Stevens warns that the majority's reasoning could be misapplied to true censorship schemes.
Justice Stevens agreed with the outcome and most of the opinion but refused to join the part reinterpreting FW/PBS's 'possibility of prompt judicial review' language as equivalent to Freedman's 'prompt judicial decision' requirement. He worried this reinterpretation could be misread as demanding more than a mere possibility of promptness, when ordinary licensing schemes involving neutral criteria differ importantly from true censorship systems.
Concurrence in part — Justice Souter
Justice Souter, joined by Justice Kennedy, agreed the ordinance survives because it isn't full-blown censorship, but declined to join the part of the opinion analyzing that distinction. He stressed that because the ordinance is triggered by the content of what's sold, it's not as harmless as ordinary zoning, so courts must act immediately if there's evidence of foot-dragging in the licensing process.
Concurrence — Justice Scalia
Justice Scalia agreed with the outcome but on a different basis: he does not believe the store's sex-pandering business is protected by the First Amendment at all, so the constitutional judicial-review requirements at issue in this case never should have applied to it in the first place. He argued Littleton could have banned the business outright, so its licensing details didn't need to satisfy First Amendment procedural standards.
How the Court got there
The legal reasoning, step by step
- The Court first addressed whether the First Amendment's licensing rules for businesses require only quick access to a courthouse or also a quick decision once there. It read its prior cases, Freedman v. Maryland and FW/PBS, Inc. v. Dallas, as together requiring assurance of a prompt judicial decision, not merely prompt access, because unexplained judicial delay can suppress speech just as much as delayed access can.
- Having decided that some assurance of promptness is constitutionally necessary, the Court then asked whether Colorado's ordinary court procedures — without any special expedited rules written into the ordinance — could supply that assurance for this kind of licensing scheme.
- The Court found that Colorado's regular civil procedure rules already give judges tools to speed up cases when needed, including the ability to accelerate proceedings and to seek quick review from higher courts, and presumed judges would use those tools to avoid unconstitutional delay.
- The Court distinguished this ordinance from the film-censorship law in Freedman: because Littleton's licensing criteria are objective and nondiscretionary (things like unpaid taxes, zoning compliance, or age) rather than subjective judgments about content, a denial is unlikely to amount to outright censorship of a type of material, reducing the need for rigid, short deadlines.
- Because the ordinance did not need to build detailed judicial-timeline rules into itself — a requirement neither Freedman nor FW/PBS imposed — the Court concluded that Colorado's flexible, ordinary review procedures were constitutionally adequate for a facial challenge, while leaving open the ability of individual license applicants to raise delay problems in specific future cases.
Doctrinal impact
Cases affected by this decision
Limits FW/PBS, Inc. v. Dallas (493 U. S. 215)
The Court narrowed FW/PBS by holding that ordinary court procedures, not special expedited rules, can satisfy its judicial-review requirement.
Distinguishes Freedman v. Maryland (380 U. S. 51)
The Court found this ordinance, unlike Maryland's film-censorship law, uses objective criteria and doesn't need Freedman's strict deadlines.