FW/PBS, Inc. v. Dallas/Concurrence Brennan

by William J. Brennan, Jr.

Justice BRENNAN, with whom Justice MARSHALL and Justice BLACKMUN join, concurring in the judgment.

I concur in the judgment invalidating the Dallas licensing provisions, as applied to any First Amendment-protected business, because I agree that the licensing scheme does not provide the procedural safeguards required under our previous cases. ^[1] I also concur in the judgment upholding the provisions applicable to adult motels, because I agree that the motel owners' claims are meritless. I agree further that it is not necessary to reach petitioners' other First Amendment challenges. I write separately, however, because I believe that our decision two Terms ago in Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), mandates application of all three of the procedural safeguards specified in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), not just two of them, and also to point out that Part III of Justice O'CONNOR's opinion reaches a question not necessary to the decision.

* In Freedman v. Maryland, supra, as Justice O'CONNOR notes, we held that three procedural safeguards are needed to "obviate the dangers of a censorship system": (1) any prior restraint in advance of a final judicial determination on the merits must be no longer than that necessary to preserve the status quo pending judicial resolution; (2) a prompt judicial determination must be available; and (3) the would-be censor must bear both the burden of going to court and the burden of proof in court. 380 U.S., at 58-59, 85 S.Ct., at 738-739. Freedman struck down a statute that required motion picture houses to submit films for prior approval, without providing any of these protections. Similar cases followed, e.g., Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S.Ct. 754, 19 L.Ed.2d 966 (1968) (invalidating another motion picture censorship ordinance for failure to provide adequate Freedman procedures); Blount v. Rizzi, 400 U.S. 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971) (invalidating postal rules permitting restrictions on the use of the mails for allegedly obscene materials because the rules lacked Freedman safeguards); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (finding unconstitutional a city's refusal to rent municipal facilities for a musical because of its content, absent Freedman procedures).

We have never suggested that our insistence on Freedman procedures might vary with the particular facts of the prior restraint before us. To the contrary, this Court has continued to require Freedman procedures in a wide variety of contexts. In National Socialist Party of America v. Skokie, 432 U.S. 43, 97 S.Ct. 2205, 53 L.Ed.2d 96 (1977), we held that even a court-ordered injunction must be stayed if appellate review is not expedited. Id., at 44, 97 S.Ct., at 2206. And in Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), we held that a general public nuisance statute could not be applied to enjoin a motion picture theater's future exhibition of films for a year, based on a presumption that such films would be obscene merely because prior films had been, when such a determination could be constitutionally made only in accordance with Freedman procedures. 445 U.S., at 317, 100 S.Ct., at 1162.

Two Terms ago, in Riley, this Court applied Freedman to a professional licensing scheme because the professionals involved, charity fundraisers, were engaged in First Amendment-protected activity. We held that, even if North Carolina's interest in licensing fundraisers was sufficient to justify such a regulation, it "must provide that the licensor 'will, within a specified brief period, either issue a license or go to court.' " 487 U.S., at 802, 108 S.Ct., at 2680, quoting and applying Freedman, supra, 380 U.S., at 59, 85 S.Ct., at 739. The North Carolina statute did not so provide, and we struck it down. 487 U.S., at 802, 108 S.Ct., at 2681.

In Riley, this Court, to be sure, discussed the failure of the North Carolina statute to set a time limit for actions on license applications, but it also held that the licensor must be required to go to court, not the would-be fundraiser. Because I see no relevant difference between the fundraisers in Riley and the bookstores and motion picture theaters in these cases, I would hold that the city of Dallas must bear the burden of going to court and proving its case before it may permissibly deny licenses to First Amendment-protected businesses.

Justice O'CONNOR bases her disinclination to require the third Freedman procedure on two grounds: the Dallas licensing scheme does not involve an administrator's passing judgment on whether the content of particular speech is protected or not; and the Dallas scheme licenses entire businesses, not just individual films. Justice O'CONNOR finds the first distinction significant on the theory that our jurisprudence holds only that suppression of speech on the ostensible ground of content is presumptively invalid. She finds the second significant because it anticipates that applicants with an entire business at stake will pursue their interests in court rather than abandon them.

While Justice O'CONNOR is certainly correct that these aspects distinguish the facts before us from those in Freedman, neither ground distinguishes these cases from Riley. The licensor in Riley was not required to distinguish between protected and unprotected speech. He was reviewing applications to practice a particular profession, just as the city of Dallas is acting on applications to operate particular businesses. Similarly, the fundraisers in Riley had their entire livelihoods at stake, just as the bookstores and others subject to the Dallas ordinance. Nonetheless, this Court placed the burden of going to court on the State, not the applicant. ^[2] 487 U.S., at 802, 108 S.Ct. at 2680.

Moreover, I believe Riley was rightly decided for the same reasons that the limitation set forth in Justice O'CONNOR's opinion is wrong. The danger posed by a license that prevents a speaker from speaking at all is not derived from the basis on which that license was purportedly denied. The danger posed is the unlawful stifling of speech that results. As we said in Freedman, it is "the transcendent value of speech" that places the burden of persuasion on the State. 380 U.S., at 58, 85 S.Ct., at 738-739. The heavy presumption against prior restraints requires no less. Justice O'CONNOR does not, nor could she, contend that those administering this ordinance will always act according to their own law. Mistakes are inevitable; abuse is possible. 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.

In Part III of the opinion, Justice O'CONNOR considers at some length whether petitioners have made an adequate showing of standing to bring their claims against the cohabitation and civil disability provisions of the licensing scheme. Were it of some precedential value, I would question this Court's reversal of the findings of both the District Court and the Court of Appeals ^[3] that petitioners had standing to bring their claims, where the basis for reversal is an affidavit that is at worst merely ambiguous. But because the discussion is wholly extraneous to the actual holding in this case, I write only to clarify that Part III is unnecessary to the decision and is pure dictum.

The first claim for which the Court fails to find a petitioner with standing-an unspecified objection to the provision denying a license to any applicant residing with someone whose own application has been denied or revoked within the past year-is not directly presented by the parties, was not reached by the court below, and is not among the questions on which certiorari was granted. The second claim for which the Court fails to find a petitioner with standing-petitioners' objection to the ordinance's civil disability provisions-is clearly before this Court, but consideration of this claim is rendered redundant by Justice O'CONNOR's holding in Part II.

The civil disability claim is an objection to that part of the licensing scheme which provides for denial or revocation of a license because of prior criminal convictions, on the ground that these provisions "impose an impermissible prior restraint upon protected expression." Brief for Petitioners FW/PBS, Inc., et al. 12. ^[4] Because the challenge is based solely on the First Amendment, a victory on the merits would benefit only those otherwise regulated businesses which are protected by the First Amendment.

But since the Court invalidates the application of the entire Dallas licensing scheme to any First Amendment-protected business under the Freedman doctrine, it is unnecessary to decide whether some or all of the same provisions are also invalid, as to First Amendment-protected businesses, on other grounds. Justice O'CONNOR recognizes this and wisely declines to reach petitioners' challenge to various requirements under the licensing scheme, other than the civil disability and cohabitation provisions, on the First Amendment ground that the ordinance impermissibly singles out persons and businesses engaged in First Amendment-protected activities for regulation. ^[5]

For reasons unexplained and inexplicable, the opinion separates the prior restraint and singling out claims and accords them different treatment. Perhaps, if the inquiry had reached the merits of the prior restraint claim, one could infer a motive to take the opportunity to offer guidance in an area of the law badly in need of it. But because the inquiry proceeds no further than jurisdiction, no such explanation is available. Whatever the reason for including Part III, it is superfluous.

Notes

1. Justice SCALIA's opinion concurring in part and dissenting in part, purportedly grounded in my opinion in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), does not persuade me otherwise. In Ginzburg, this Court held merely that, in determining whether a given publication was obscene, a court could consider as relevant evidence not only the material itself but also evidence showing the circumstances of its production, sale, and advertising. Id., at 465-466, 86 S.Ct., at 944-945. The opinion concluded: "It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged." Id., at 475, 86 S.Ct., at 950. As Justice O'CONNOR's opinion makes clear, ante at 220, there is no "obscenity vel non" question in this case.
2. Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980), also involved censorship that threatened proprietors' entire businesses, rather than single films. This Court, notwithstanding, affirmed the Court of Appeals which had held that the statute was unconstitutional because it lacked the procedural safeguards required under Freedman. 445 U.S., at 314, 317, 100 S.Ct., at 1162.
3. Both the District Court and the Fifth Circuit, after finding that plaintiffs had standing to challenge the ordinance, reached the civil disability question. See 837 F.2d 1298, 1301, 1304-1305 (1988); Dumas v. Dallas, 648 F.Supp. 1061 (ND Tex.1986).
4. Petitioners M.J.R., Inc., et al. phrase the same objection slightly differently. They characterize license denial or revocation based on certain listed prior speech offenses as a "classic prior restraint of the type prohibited as facially unconstitutional under the rule of Near v. Minnesota [ex rel. Olson ], 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931)," and they characterize license denial or revocation based on other listed prior offenses as "prior restraints which cannot withstand strict scrutiny and are therefore invalid under the first amendment." See Brief for Petitioners M.J.R., Inc., et al. 22, 33.
5. See Brief for Petitioners FW/PBS, Inc., et al. 21-24.