Decision: FW/PBS, Inc. v. City of Dallas (1990)
Licensing Sexually Explicit Businesses
|
||
|
||
|
||
|
||
Zoning and licensing are common means used by city governments to control and even eliminate sexually oriented businesses, based upon the common assumption that such businesses are inherently immoral and necessarily attract criminal activity. But just how far can local governments go in pursuit of this goal? Just how blatant can they be in using generally applicable laws to regulate or restrict certain types of ideas and speech?
Background Information:
On June 18, 1986, the Dallas city council approved an ordinance regulating sexually oriented businesses, in the expectation of eliminating crime and urban blight. This ordinance imposed zoning, inspection, and licensing requirements on such businesses which were not imposed on any other type of business in the city of Dallas. The ordinance also included a provision which prohibited anyone convicted of a crime from running a sexually oriented business for some specified period.
Court Decision:
Although such "prior restraint" laws on types of expression are not automatically unconstitutional, they do come with a heavy burden of proof - and the Supreme Court found that the Dallas ordinance did not meet that burden. According to the Court, any such licensing of an expressive business (a business invovled in the sale or production of expressive material) can only be allowed when it meets certain criteria.
First, there must be clear limits on the discretion used by the licensing authority when it comes to allowing or denying licenses. Thus, no one person or body can have a completely free reign when it comes to making decision about which expressive businesses are permitted and which ones are prohibited. This also meant that the requirements for a license cannot be vague and depend upon highly subjective judgements of the licensing authority - for example, a license cannot require that the applicant be of "good moral character."
Second, the process invovled in applying for and receiving a license must occur within a specified period of time. This prevents a licensing authority from using constant delays to effectively deny a license from a business which is unliked and unwanted, but which nevertheless meets all of the statuatory requirements. Although the Dallas ordinance provided for a 30-day application process, it also required various fire and health inspections which did not come with any time limit, thus allowing the licensing authority to make use of such delays.
Third, any licensing requirements must also include for a prompt judicial review of the denial of a license so that an applicant can ensure that his or her legal and constitutional rights are protected. The Dallas ordinance failed to provide for any such judicial relief.
Significance:
Zoning and licensing are common means used by city governments to control and even eliminate sexually oriented businesses, based upon the common assumption that such businesses are inherently immoral and necessarily attract criminal activity. Because this decision set clear limits upon how far a government may go in such efforts and that even sexually oreinted businesses have constitutional rights based upon the fact that they are engaged in expressive conduct, this is one of the most impotant Supreme Court decisions when it comes to pornography.
-->