Deja Vu of Nashville, Inc. v. Metropolitan Government

WELLFORD, Circuit Judge,

concurring in part and dissenting in part.

I concur in the Chief Judge’s opinion in this difficult case in most respects. I write separately to set out my views with respect to part II.F dealing with standing and prompt judicial review. The majority found that prompt judicial review is “re*404quired by Freedman [v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)].” Supra at 398. Freedman, however, involves a very different set of circumstances from the present controversy, because that case presented a First Amendment challenge to the “Maryland motion picture censorship statute.”1 Id. at 52, 85 S.Ct. 734. The Supreme Court pointed out that under the Maryland law in question “there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial review.” Id. at 55, 85 S.Ct. 734 (emphasis added). Furthermore, the Court recognized the unique nature of the film industry, stating that “a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech.” Id. at 57, 85 S.Ct. 734 (emphasis added). Our present case, of course, does not involve freedom of speech in a film, but freedom of expression in a sexually-oriented place of business.

I. STANDING

I would not hold Freedman controlling on the issue of standing because of the circumstances in that case are entirely different from those in the instant controversy. This court has interpreted Freedman broadly to apply to similar types of cases brought by adult “entertainment” operators and performers, such as plaintiffs. For example, G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071 (6th Cir.1994), cited by the majority, involved “threatened revocation” of a liquor license if topless dancing were to occur at an Inkster, Michigan bar and nightclub. G & V Lounge, Inc., 23 F.3d at 1073. With that scenario and the evidence of threatened and imminent action by the state of license revocation, this court held that plaintiff operator had standing to bring a First Amendment claim, citing Supreme Court authority, including Freedman. Standing would be present in such a situation even if no revocation had taken place.

In the instant case, however, the plaintiffs make no allegation of threatened revocation of their licenses (or actual censorship). The majority recognizes Metropolitan Nashville’s argument “that the plaintiff businesses and operators have no standing to challenge the license procedures because they have all been issued licenses.” What it fails to recognize, however, is that no plaintiff has been threatened with revocation under the ordinance. Metropolitan Nashville concedes that “parties not yet affected by actual enforcement of the statute are allowed to challenge actions under the First Amendment.” It is doubtful, however, particularly in light of DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.1997), that the plaintiffs, not operating under any threat of revocation, would have standing to challenge the constitutionality of procedures involved in the Ordinance at issue.

I would hold that plaintiffs have standing to challenge the substantive criteria for the issuance of licenses or permits, but do not have standing to challenge “the licensing scheme.” See DLS, 107 F.3d at 413. In DLS, we reasoned that the plaintiffs lacked such standing because they “already have succeeded in obtaining a license under [the applicable ordinance]. If they are to be subject to any future threat of injury from actions by the City, that threat will arise under the materially different procedures for renewals or revocations of licenses under [different provi*405sions].” Id. I am not persuaded that, in the instant case, the procedures involved for revocation are not different from the procedures required for applying for initial licenses.

I find neither Newsom v. Norris, 888 F.2d 371 (6th Cir.1989), nor Dambrot v. Central Michigan University, 55 F.3d 1177 (6th cir.1995), both cited in the majority opinion, to be particularly helpful to plaintiffs on the issue of standing. New-som involved a prison setting and alleged retaliation against inmate advisors. Dam-brot involved a university’s alleged discriminatory harassment policy in a discharge situation addressing the issue of freedom of speech. Neither ease involved the type of expression here involved, held repeatedly to be subject to reasonable, narrowly drawn state regulation.

FW/PBS is a case much more analogous to this case than Freedman. The city ordinance in FW/PBS purported to regulate businesses similar to those operated by plaintiffs in this case. Plaintiffs were permitted to raise a facial challenge to the ordinance because special inspections and certificates of occupancy were demanded of sexually-oriented businesses. Such provisions are absent from the Metropolitan Nashville ordinance.

II. PROMPT JUDICIAL REVIEW

The Court in Freedman emphasized that the censorship of a film “puts an initial burden on the exhibition.”2 Id. Again, this is not the situation in the instant controversy. In the film censorship area, Freedman mandated a procedure “which must ... assure a prompt final judicial decision.” Id. at 59, 85 S.Ct. 734. The Supreme Court emphasized the need for prompt judicial review of film censorship laws, recognizing that in the Maryland scheme there was “no assurance of prompt judicial determination.” Id. at 60, 85 S.Ct. 734 (emphasis added). Apparently, the scheme contained no provision for judicial review of film censorship, an entirely different circumstance from the instant case. Whether or not there is an adequate provision for prompt judicial review in these circumstances is a legal question and forms a basis for injunctive relief if it is wanting. The legality of prior restraints of freedom of expression in adult sexually-oriented businesses, while not illegal per se, requires the special attention of this court. FW/PBS, 493 U.S. at 225-26, 110 S.Ct. 596. To be constitutional, a prior restraint must place reasonable and prompt time constraints on the administrative process of issuing business licenses and permits and must provide “expeditious judicial review” of administrative decisions. Id. at 227, 110 S.Ct. 596 (citing Freedman, 380 U.S. at 58-60, 85 S.Ct. 734).3

The Court in FW/PBS mandated that any such licensing scheme provide for the “‘possibility of prompt judicial review in the event that the license is erroneously denied.” Id. at 228, 110 S.Ct. 596 (emphasis added). The Court also relied on the specific circumstances of that case in holding that, unlike Freedman, the city did not have the burden of proof once in court. Id. at 230, 85 S.Ct. 734. The question of prompt judicial review of the license permit action was whether there were “ade*406quate bulwarks.”4 Id. Moreover, the Court in FW/PBS raised on its own volition the question of standing of certain plaintiffs who challenged the civil disability-provision of the ordinance. Id. at 234-35, 110 S.Ct. 596. The Court held that there was no standing to challenge revocation on the basis of past criminal conviction or conduct where no petitioner actually demonstrated revocation of a license under the civil disability provision. Id. at 235, 110 S.Ct. 596.

I believe that the Ordinance at issue does meet the standards set out in FW/PBS, because it provides for much more than a “possibility” of prompt judicial review. Sections 6.54.04(E) and 6 .54.070(D) of the ordinance specify certain procedures for obtaining relief from denial of a license or permit. First, a denial “may be immediately appealed to the circuit or chancery courts of Davidson County.” (Emphasis added.) There is no requirement in the ordinance as to the form of relief that may be sought by the unsuccessful applicant.5 There is no reason why an applicant may not pursue a declaratory judgment action or seek injunctive relief if a constitutional issue is claimed to be involved in either state or federal court because of an asserted invalid or improper denial. If the applicant, under the above sections of the ordinance, does choose to appeal by seeking a writ of certiorari, he or she is provided with a prompt record and an opportunity to challenge the procedures involved in a denial. Contrary to the Chief Judge, I believe that State v. Johnson, 569 S.W.2d 808 (Tenn.1978), does support the proposition that Tennessee court would entertain a petition for a writ of certiorari from denial of an application even if the action taken were discretionary in nature.

I respectfully disagree with the statement by the majority in footnote 7, because temporary injunctive relief or mandamus could issue in a § 1983 suit against Metropolitan Nashville if an application were denied based on, for example, racial, sexual, or other illegal discriminatory animus, thus allowing the plaintiff to “speak” pending final adjudication. Furthermore, under the majority holding of FW/PBS, I believe that a rejected applicant has the opportunity for an adequate and expeditious judicial review based upon available remedies, as supported also by the affidavit of the Clerk of the Davidson County Chancery Court. There is a sufficient protection in such an event of denial of a meritorious application under the ordinance and the proof for prompt judicial review; in short, there is an “adequate bulwark” by judicial review available. The majority opinion states in footnote 8 that “[t]he ordinance does preserve the status quo by allowing existing businesses to continue to operate until an adjudication on the merits and by issuing a temporary license to new businesses if the court fails to rule within forty days of the filing of an appeal.” (Emphasis added.) I agree with this interpretation of the effect of the ordinance, and this also presents an adequate and reasonable bulwark constitutionally, in my view.

In sum, I respectfully disagree that there is, in this ordinance, “lack of judicial review provision.” There is not only such a provision but there is also a reasonable *407stay provision to protect a plaintiff pending judicial review. We are not dealing in this case with censorship, or attempted censorship, of speech, books, or films (as in Freedman, supra).

Finally, even if the judicial review provisions were inadequate, I would conclude that the severance provision in the ordinance is effective, and I would not agree to void enforcement of the entire ordinance because of perceived insufficient means of prompt judicial review.6

Accordingly, I respectfully dissent from parts of the majority decision for the reasons indicated.

. Indeed, in Freedman, the state conceded "that the picture [at issue] does not violate the statutory standards.” Freedman, 380 U.S. at 52, 85 S.Ct. 734.

. "Films differ from other forms of expression.” Freedman, 380 U.S. at 61, 85 S.Ct. 734.

. FW/PBS makes it clear that the "licensing scheme” in this type of case "does not present the grave dangers of a censorship system” that was present in Freedman. FW/PBS, 493 U.S. at 228, 110 S.Ct. 596.

. The authority cited for this proposition was Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1962), a book censorship case. The Rhode Island law at issue in Sullivan provided for no judicial review.

. Despite any purported argument made to the effect that appeal by writ of certiorari is the only statutory avenue of relief upon denial of an application, the ordinance speaks for itself in this regard.

. A case cited as giving support to the majority view is a four-to-three decision of the court, Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), which permitted a facial challenge to a municipal ordinance regulating newspaper racks on city streets. The later case of FW/ PBS states the principle applicable in this situation: "Limitation on the time within which the licensor must issue the license as well as the availability of prompt judicial review satisfy the 'principle that the freedoms of expression must be ringed about with adequate bulwarks.’ " FW/PBS, 493 U.S. at 230, 110 S.Ct. 596.