CITY OF LITTLETON, COLORADO v. Z. J. GIFTS D–4, L. L. C., dba CHRISTAL’S

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774 OCTOBER TERM, 2003
Syllabus
CITY OF LITTLETON, COLORADO v. Z. J. GIFTS D–4,
L. L. C., dba CHRISTAL’S
certiorari to the united states court of appeals for
the tenth circuit
No. 02–1609. Argued March 24, 2004—Decided June 7, 2004
Under petitioner city’s “adult business license” ordinance, the city’s deci-
sion to deny a license may be appealed to the state district court pursu-
ant to Colorado Rules of Civil Procedure. Respondent Z. J. Gifts D–4,
L. L. C. (hereinafter ZJ), opened an adult bookstore in a place not zoned
for adult businesses. Instead of applying for a license, ZJ filed suit
attacking the ordinance as facially unconstitutional. The Federal Dis-
trict Court rejected ZJ’s claims, but the Tenth Circuit held, as rele-
vant here, that state law does not assure the constitutionally required
“prompt final judicial decision.”
Held: The ordinance meets the First Amendment’s requirement that such
a licensing scheme assure prompt judicial review of an administrative
decision denying a license. Pp. 778–784.
(a) The Court rejects the city’s claim that its licensing scheme need
only provide prompt access to judicial review, but not a “prompt judicial
determination,” of an applicant’s legal claim. The city concedes that
Freedman v. Maryland, 380 U. S. 51, 59, in listing constitutionally nec-
essary “safeguards” applicable to a motion picture censorship statute,
spoke of the need to assure a “prompt final judicial decision,” but adds
that Justice O’Connor’s controlling plurality opinion in FW/PBS, Inc.
v. Dallas, 493 U. S. 215, which addressed an adult business licensing
scheme, did not use the word “decision,” instead speaking only of the
“possibility of prompt judicial review,” id., at 228 (emphasis added).
Justice O’Connor’s FW/PBS opinion, however, points out that Freed-
man’s “judicial review” safeguard is meant to prevent “undue delay,”
493 U. S., at 228, which includes judicial, as well as administrative,
delay. 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.” Ibid. Nothing in the opinion sug-
gests the contrary. Pp. 778–781.
(b) However, the Court accepts the city’s claim that Colorado law sat-
isfies any “prompt judicial determination” requirement, agreeing that
the Court should modify FW/PBS, withdrawing its implication that
Freedman’s special judicial review rules—e. g., strict time limits—apply
in this case. Colorado’s ordinary “judicial review” rules suffice to as-

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Syllabus
sure a prompt judicial decision, as long as the courts remain sensitive
to the need to prevent First Amendment harms and administer those
procedures accordingly. And whether the courts do so is a matter nor-
mally fit for case-by-case determination rather than a facial challenge.
Four considerations support this conclusion. First, ordinary court pro-
cedural rules and practices give reviewing courts judicial tools sufficient
to avoid delay-related First Amendment harm. Indeed, courts may ar-
range their schedules to “accelerate” proceedings, and higher courts
may grant expedited review. Second, there is no reason to doubt state
judges’ willingness to exercise these powers wisely so as to avoid seri-
ous threats of delay-induced First Amendment harm. And federal rem-
edies would provide an additional safety valve in the event of any such
problem. Third, the typical First Amendment harm at issue here dif-
fers from that at issue in Freedman, diminishing the need in the typical
case for procedural rules imposing special decisionmaking time limits.
Unlike in Freedman, this ordinance does not seek to censor material.
And its licensing scheme applies reasonably objective, nondiscretionary
criteria unrelated to the content of the expressive materials that an
adult business may sell or display. These criteria are simple enough to
apply and their application simple enough to review that their use is
unlikely in practice to suppress totally any specific item of adult mate-
rial in the community. And the criteria’s simple objective nature means
that in the ordinary case, judicial review, too, should prove simple, hence
expeditious. Finally, nothing in FW/PBS or Freedman requires a city
or State to place judicial review safeguards all in the city ordinance that
sets forth a licensing scheme. Pp. 781–784.
311 F. 3d 1220, reversed.
Breyer, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Thomas, and Ginsburg, JJ., joined, in which Ste-
vens, J., joined as to Parts I and II–B, and in which Souter and Ken-
nedy, JJ., joined except as to Part II–B. Stevens, J., filed an opinion
concurring in part and concurring in the judgment, post, p. 784. Souter,
J., filed an opinion concurring in part and concurring in the judgment, in
which Kennedy, J., joined, post, p. 786. Scalia, J., filed an opinion con-
curring in the judgment, post, p. 787.
J. Andrew Nathan argued the cause for petitioner. With
him on the briefs were Heidi J. Hugdahl, Scott D. Bergthold,
Larry W. Berkowitz, and Brad D. Bailey.
Douglas R. Cole, State Solicitor of Ohio, argued the cause
and filed a brief for the State of Ohio et al. as amici curiae

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776 CITY OF LITTLETON v. Z. J. GIFTS D–4, L. L. C.
Opinion of the Court
in support of petitioner under this Court’s Rule 12.6. With
him on the brief were Jim Petro, Attorney General of Ohio,
Rebecca L. Thomas, Assistant Solicitor, and Dan Schweitzer,
and the Attorneys General for their respective States as
follows: William H. Pryor, Jr., of Alabama, Ken Salazar of
Colorado, M. Jane Brady of Delaware, Mark J. Bennett of
Hawaii, Steve Carter of Indiana, Thomas J. Miller of Iowa,
Thomas F. Reilly of Massachusetts, Jeremiah W. (Jay)
Nixon of Missouri, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, Paul G. Summers of Tennessee,
Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Wil-
liam H. Sorrell of Vermont.
Michael W. Gross argued the cause for respondent. With
him on the brief were Arthur M. Schwartz and Cindy D.
Schwartz.*
Justice Breyer delivered the opinion of the Court.
In this case we examine a city’s “adult business” licensing
ordinance to determine whether it meets the First Amend-
ment’s requirement that such a licensing scheme assure
prompt judicial review of an administrative decision denying
a license. See FW/PBS, Inc. v. Dallas, 493 U. S. 215 (1990);
cf. Freedman v. Maryland, 380 U. S. 51 (1965). We conclude
that the ordinance before us, considered on its face, is con-
sistent with the First Amendment’s demands.
I
Littleton, Colorado, has enacted an “adult business” ordi-
nance that requires an “adult bookstore, adult novelty store
*Briefs of amici curiae urging reversal were filed for the Community
Defense Counsel by David R. Langdon and Benjamin W. Bull; and for the
National League of Cities et al. by Richard Ruda and Charles A. Rothfeld.
Briefs of amici curiae urging affirmance were filed for the American
Booksellers Foundation for Free Expression et al. by Michael A. Bam-
berger; and for the First Amendment Lawyers Association by H. Louis
Sirkin.

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Opinion of the Court
or adult video store” to have an “adult business license.”
Littleton City Code §§ 3–14–2, 3–14–4 (2003), App. to Brief
for Petitioner 13a–20a, 23a. The ordinance defines “adult
business”; it requires an applicant to provide certain basic
information about the business; it insists upon compliance
with local “adult business” (and other) zoning rules; it lists
eight specific circumstances the presence of which requires
the city to deny a license; and it sets forth time limits (typ-
ically amounting to about 40 days) within which city officials
must reach a final licensing decision. §§ 3–14–2, 3–14–3,
3–14–5, 3–14–7, 3–14–8, id., at 13a–30a. The ordinance adds
that the final decision may be “appealed to the [state] dis-
trict court pursuant to Colorado rules of civil procedure
106(a)(4).” § 3–14–8(B)(3), id., at 30a.
In 1999, the respondent, a company called Z. J. Gifts D–4,
L. L. C. (hereinafter ZJ), opened a store that sells “adult
books” in a place not zoned for adult businesses. Compare
Tr. of Oral Arg. 13 (store “within 500 feet of a church and
day care center”) with § 3–14–3(B), App. to Brief for Peti-
tioner 21a (forbidding adult businesses at such locations).
Instead of applying for an adult business license, ZJ brought
this lawsuit attacking Littleton’s ordinance as unconstitu-
tional on its face. The Federal District Court rejected ZJ’s
claims; but on appeal the Court of Appeals for the Tenth
Circuit accepted two of them, 311 F. 3d 1220, 1224 (2002).
The court held that Colorado law “does not assure that [the
city’s] license decisions will be given expedited [judicial] re-
view”; hence it does not assure the “prompt final judicial de-
cision” that the Constitution demands. Id., at 1238. It also
held unconstitutional another ordinance provision (not now
before us) on the ground that it threatened lengthy adminis-
trative delay—a problem that the city believes it has cured
by amending the ordinance. Compare id., at 1233–1234,
with § 3–14–7, App. to Brief for Petitioner 27a–28a, and Brief
for Petitioner 3. Throughout these proceedings, ZJ’s store
has continued to operate.

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Opinion of the Court
The city has asked this Court to review the Tenth Circuit’s
“judicial review” determination, and we granted certiorari
in light of lower court uncertainty on this issue. Compare,
e. g., 311 F. 3d, at 1238 (First Amendment requires prompt
judicial determination of license denial); Nightclubs, Inc. v.
Paducah, 202 F. 3d 884, 892–893 (CA6 2000) (same); Baby
Tam & Co. v. Las Vegas, 154 F. 3d 1097, 1101–1102 (CA9
1998) (same); 11126 Baltimore Blvd., Inc. v. Prince George’s
County, 58 F. 3d 988, 998–1001 (CA4 1995) (en banc) (same),
with Boss Capital, Inc. v. Casselberry, 187 F. 3d 1251, 1256–
1257 (CA11 1999) (Constitution requires only prompt access
to courts); TK’s Video, Inc. v. Denton County, 24 F. 3d 705,
709 (CA5 1994) (same); see also Thomas v. Chicago Park
Dist., 534 U. S. 316, 325–326 (2002) (noting a Circuit split);
City News & Novelty, Inc. v. Waukesha, 531 U. S. 278, 281
(2001) (same).
II
The city of Littleton’s claims rest essentially upon two ar-
guments. First, this Court, in applying the First Amend-
ment’s procedural requirements to an “adult business”
licensing scheme in FW/PBS, found that the First Amend-
ment required such a scheme to provide an applicant with
“prompt access” to judicial review of an administrative de-
nial of the license, but that the First Amendment did not
require assurance of a “prompt judicial determination” of
the applicant’s legal claim. Second, in any event, Colorado
law satisfies any “prompt judicial determination” require-
ment. We reject the first argument, but we accept the
second.
A
The city’s claim that its licensing scheme need not provide
a “prompt judicial determination” of an applicant’s legal
claim rests upon its reading of two of this Court’s cases,
Freedman and FW/PBS. In Freedman, the Court consid-
ered the First Amendment’s application to a “motion picture

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Opinion of the Court
censorship statute”—a statute that required an “ ‘owner or
lessee’ ” of a film, prior to exhibiting a film, to submit the
film to the Maryland State Board of Censors and obtain its
approval. 380 U. S., at 52, and n. 1 (quoting Maryland stat-
ute). It said, “a noncriminal process which requires the
prior submission of a film to a censor avoids constitutional
infirmity only if it takes place under procedural safeguards
designed to obviate the dangers of a censorship system.”
Id., at 58. The Court added that those safeguards must in-
clude (1) strict time limits leading to a speedy administrative
decision and minimizing any “prior restraint”-type effects,
(2) burden of proof rules favoring speech, and (3) (using
language relevant here) a “procedure” that will “assure a
prompt final judicial decision, to minimize the deterrent ef-
fect of an interim and possibly erroneous denial of a license.”
Id., at 58–59 (emphasis added).
In FW/PBS, the Court considered the First Amendment’s
application to a city ordinance that “regulates sexually ori-
ented businesses through a scheme incorporating zoning, li-
censing, and inspections.” 493 U. S., at 220–221. A Court
majority held that the ordinance violated the First Amend-
ment because it did not impose strict administrative time
limits of the kind described in Freedman. In doing so, three
Members of the Court wrote that “the full procedural protec-
tions set forth in Freedman are not required,” but that none-
theless such a licensing scheme must comply with Freed-
man’s “core policy”—including (1) strict administrative time
limits and (2) (using language somewhat different from
Freedman’s) “the possibility of prompt judicial review in
the event that the license is erroneously denied.” 493 U. S.,
at 228 (opinion of O’Connor, J.) (emphasis added). Three
other Members of the Court wrote that all Freedman’s safe-
guards should apply, including Freedman’s requirement that
“a prompt judicial determination must be available.” 493
U. S., at 239 (Brennan, J., concurring in judgment). Three
Members of the Court wrote in dissent that Freedman’s re-

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Opinion of the Court
quirements did not apply at all. See 493 U. S., at 244–245
(White, J., joined by Rehnquist, C. J., concurring in part
and dissenting in part); id., at 250 (Scalia, J., concurring in
part and dissenting in part).
The city points to the differing linguistic descriptions of
the “judicial review” requirement set forth in these opinions.
It concedes that Freedman, in listing constitutionally neces-
sary “safeguards,” spoke of the need to assure a “prompt
final judicial decision.” 380 U. S., at 59. But it adds that
Justice O’Connor’s controlling plurality opinion in FW/
PBS did not use the word “decision,” instead speaking only
of the “possibility of prompt judicial review.” 493 U. S., at
228 (emphasis added); see also id., at 229 (“an avenue for
prompt judicial review”); id., at 230 (“availability of prompt
judicial review”). This difference in language between
Freedman and FW/PBS, says the city, makes a major differ-
ence: The First Amendment, as applied to an “adult busi-
ness” licensing scheme, demands only an assurance of speedy
access to the courts, not an assurance of a speedy court
decision.
In our view, however, the city’s argument makes too much
of too little. While Justice O’Connor’s FW/PBS plurality
opinion makes clear that only Freedman’s “core” require-
ments apply in the context of “adult business” licensing
schemes, it does not purport radically to alter the nature
of those “core” requirements. To the contrary, the opinion,
immediately prior to its reference to the “judicial review”
safeguard, says:
“The core policy underlying Freedman is that the li-
cense for a First Amendment-protected business must
be issued within a reasonable period of time, because
undue delay results in the unconstitutional suppression
of protected speech. Thus, the first two [Freedman]
safeguards are essential . . . .” 493 U. S., at 228.

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Opinion of the Court
These words, pointing out that Freedman’s “judicial review”
safeguard is meant to prevent “undue delay,” 493 U. S., at
228, include judicial, as well as administrative, delay. 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.” Ibid. Nothing
in the opinion suggests the contrary. Thus we read that
opinion’s reference to “prompt judicial review,” together
with the similar reference in Justice Brennan’s separate
opinion ( joined by two other Justices), see id., at 239, as en-
compassing a prompt judicial decision. And we reject the
city’s arguments to the contrary.
B
We find the second argument more convincing. In effect
that argument concedes the constitutional importance of as-
suring a “prompt” judicial decision. It concedes as well that
the Court, illustrating what it meant by “prompt” in Freed-
man, there set forth a “model” that involved a “hearing one
day after joinder of issue” and a “decision within two days
after termination of the hearing.” 380 U. S., at 60. But the
city says that here the First Amendment nonetheless does
not require it to impose 2- or 3-day time limits; the First
Amendment does not require special “adult business” judicial
review rules; and the First Amendment does not insist that
Littleton write detailed judicial review rules into the ordi-
nance itself. In sum, Colorado’s ordinary “judicial review”
rules offer adequate assurance, not only that access to the
courts can be promptly obtained, but also that a judicial deci-
sion will be promptly forthcoming.
Littleton, in effect, argues that we should modify FW/
PBS, withdrawing its implication that Freedman’s special
judicial review rules apply in this case. And we accept that
argument. In our view, Colorado’s ordinary judicial review
procedures suffice as long as the courts remain sensitive to
the need to prevent First Amendment harms and administer

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Opinion of the Court
those procedures accordingly. And whether the courts do
so is a matter normally fit for case-by-case determination
rather than a facial challenge. We reach this conclusion for
several reasons.
First, ordinary court procedural rules and practices, in
Colorado as elsewhere, provide reviewing courts with judi-
cial tools sufficient to avoid delay-related First Amendment
harm. Indeed, where necessary, courts may arrange their
schedules to “accelerate” proceedings. Colo. Rule Civ. Proc.
106(a)(4)(VIII) (2003). And higher courts may quickly re-
view adverse lower court decisions. See, e. g., Goebel v. Col-
orado Dept. of Institutions, 764 P. 2d 785, 792 (Colo. 1988)
(en banc) (granting “expedited review”).
Second, we have no reason to doubt the willingness of Col-
orado’s judges to exercise these powers wisely so as to avoid
serious threats of delay-induced First Amendment harm.
We presume that courts are aware of the constitutional need
to avoid “undue delay result[ing] in the unconstitutional sup-
pression of protected speech.” FW/PBS, supra, at 228; see
also, e. g., Schlesinger v. Councilman, 420 U. S. 738, 756
(1975). There is no evidence before us of any special Colo-
rado court-related problem in this respect. And were there
some such problems, federal remedies would provide an addi-
tional safety valve. See Rev. Stat. § 1979, 42 U. S. C. § 1983.
Third, the typical First Amendment harm at issue here
differs from that at issue in Freedman, diminishing the need
in the typical case for special procedural rules imposing spe-
cial 2- or 3-day decisionmaking time limits. Freedman con-
sidered a Maryland statute that created a Board of Censors,
which had to decide whether a film was “ ‘pornographic,’ ”
tended to “ ‘debase or corrupt morals,’ ” and lacked “ ‘what-
ever other merits.’ ” 380 U. S., at 52–53, n. 2 (quoting Mary-
land statute). If so, it denied the permit and the film could
not be shown. Thus, in Freedman, the Court considered a
scheme with rather subjective standards and where a denial
likely meant complete censorship.

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Opinion of the Court
In contrast, the ordinance at issue here does not seek to
censor material. And its licensing scheme applies reason-
ably objective, nondiscretionary criteria unrelated to the
content of the expressive materials that an adult business
may sell or display. The ordinance says that an adult busi-
ness license “shall” be denied if the applicant (1) is underage;
(2) provides false information; (3) has within the prior year
had an adult business license revoked or suspended; (4) has
operated an adult business determined to be a state law
“public nuisance” within the prior year; (5) (if a corporation)
is not authorized to do business in the State; (6) has not
timely paid taxes, fees, fines, or penalties; (7) has not ob-
tained a sales tax license (for which zoning compliance is re-
quired, see Tr. of Oral Arg. 16–17); or (8) has been convicted
of certain crimes within the prior five years. § 3–14–8(A),
App. to Brief for Petitioner 28a–29a (emphasis added).
These objective criteria are simple enough to apply and
their application simple enough to review that their use is
unlikely in practice to suppress totally the presence of any
specific item of adult material in the Littleton community.
Some license applicants will satisfy the criteria even if others
do not; hence the community will likely contain outlets that
sell protected adult material. A supplier of that material
should be able to find outlets; a potential buyer should be
able to find a seller. Nor should zoning requirements sup-
press that material, for a constitutional zoning system seeks
to determine where, not whether, protected adult material
can be sold. See Renton v. Playtime Theatres, Inc., 475
U. S. 41, 46 (1986). The upshot is that Littleton’s “adult
business” licensing scheme does “not present the grave ‘dan-
gers of a censorship system.’ ” FW/PBS, 493 U. S., at 228
(opinion of O’Connor, J.) (quoting Freedman, supra, at 58).
And the simple objective nature of the licensing criteria
means that in the ordinary case, judicial review, too, should
prove simple, hence expeditious. Where that is not so—
where, for example, censorship of material, as well as delay

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784 CITY OF LITTLETON v. Z. J. GIFTS D–4, L. L. C.
Opinion of Stevens, J.
in opening an additional outlet, is improperly threatened—
the courts are able to act to prevent that harm.
Fourth, nothing in FW/PBS or in Freedman requires a
city or a State to place judicial review safeguards all in the
city ordinance that sets forth a licensing scheme. Freedman
itself said: “How or whether Maryland is to incorporate the
required procedural safeguards in the statutory scheme is,
of course, for the State to decide.” 380 U. S., at 60. This
statement is not surprising given the fact that many cities
and towns lack the state-law legal authority to impose dead-
lines on state courts.
These four sets of considerations, taken together, indicate
that Colorado’s ordinary rules of judicial review are ade-
quate—at least for purposes of this facial challenge to the
ordinance. Where (as here and as in FW/PBS) the regu-
lation simply conditions the operation of an adult business
on compliance with neutral and nondiscretionary criteria,
cf. post, at 785 (Stevens, J., concurring in part and concur-
ring in judgment), and does not seek to censor content, an
adult business is not entitled to an unusually speedy judicial
decision of the Freedman type. Colorado’s rules provide for
a flexible system of review in which judges can reach a deci-
sion promptly in the ordinary case, while using their judicial
power to prevent significant harm to First Amendment in-
terests where circumstances require. Of course, those de-
nied licenses in the future remain free to raise special prob-
lems of undue delay in individual cases as the ordinance is
applied.
For these reasons, the judgment of the Tenth Circuit is
Reversed.
Justice Stevens, concurring in part and concurring in
the judgment.
There is an important difference between an ordinance
conditioning the operation of a business on compliance with
certain neutral criteria, on the one hand, and an ordinance

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Opinion of Stevens, J.
conditioning the exhibition of a motion picture on the consent
of a censor. The former is an aspect of the routine opera-
tion of a municipal government. The latter is a species of
content-based prior restraint. Cf. Graff v. Chicago, 9 F. 3d
1309, 1330–1333 (CA7 1993) (Flaum, J., concurring).
The First Amendment is, of course, implicated whenever
a city requires a bookstore, a newsstand, a theater, or an
adult business to obtain a license before it can begin to oper-
ate. For that reason, as Justice O’Connor explained in
her plurality opinion in FW/PBS, Inc. v. Dallas, 493 U. S.
215, 226 (1990), a licensing scheme for businesses that engage
in First Amendment activity must be accompanied by ade-
quate procedural safeguards to avert “the possibility that
constitutionally protected speech will be suppressed.” But
Justice O’Connor’s opinion also recognized that the full
complement of safeguards that are necessary in cases that
“present the grave ‘dangers of a censorship system’ ” are
“not required” in the ordinary adult-business licensing
scheme. Id., at 228 (quoting Freedman v. Maryland, 380
U. S. 51, 58 (1965)). In both contexts, “undue delay results
in the unconstitutional suppression of protected speech,” 493
U. S., at 228, and FW/PBS therefore requires both that the
licensing decision be made promptly and that there be “the
possibility of prompt judicial review in the event that the
license is erroneously denied,” ibid. But application of
neutral licensing criteria is a “ministerial action” that regu-
lates speech, rather than an exercise of discretionary judg-
ment that prohibits speech. Id., at 229. The decision to
deny a license for failure to comply with these neutral crite-
ria is therefore not subject to the presumption of invalidity
that attaches to the “direct censorship of particular expres-
sive material.” Ibid. Justice O’Connor’s opinion accord-
ingly declined to require that the licensor, like the censor,
either bear the burden of going to court to effect the denial
of a license or otherwise assume responsibility for ensuring

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Opinion of Souter, J.
a prompt judicial determination of the validity of its deci-
sion. Ibid.
The Court today reinterprets FW/PBS’s references to
“ ‘the possibility of prompt judicial review’ ” as the equiva-
lent of Freedman’s “ ‘prompt’ judicial decision” requirement.
Ante, at 780–781. I fear that this misinterpretation of FW/
PBS may invite other, more serious misinterpretations with
respect to the content of that requirement. As the Court
applies it in this case, assurance of a “ ‘prompt’ judicial deci-
sion” means little more than assurance of the possibility of
a prompt decision—the same possibility of promptness that
is available whenever a person files suit subject to “ordinary
court procedural rules and practices.” Ante, at 781–782.
That possibility will generally be sufficient to guard against
the risk of undue delay in obtaining a remedy for the er-
roneous application of neutral licensing criteria. 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, and is certainly not what Freedman meant by
“ ‘prompt’ judicial decision.”
Justice O’Connor’s opinion in FW/PBS recognized that
differences between ordinary licensing schemes and censor-
ship systems warrant imposition of different procedural pro-
tections, including different requirements with respect to
which party must assume the burden of taking the case to
court, as well as the risk of judicial delay. I would adhere
to the views there expressed, and thus do not join Part II–A
of the Court’s opinion. I do, however, join the Court’s judg-
ment and Parts I and II–B of its opinion.
Justice Souter, with whom Justice Kennedy joins,
concurring in part and concurring in the judgment.
I join the Court’s opinion, except for Part II–B. I agree
that this scheme is unlike full-blown censorship, ante, at 782–
784, so that the ordinance does not need a strict timetable of

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Scalia, J., concurring in judgment
the kind required by Freedman v. Maryland, 380 U. S. 51
(1965), to survive a facial challenge. I write separately to
emphasize that the state procedures that make a prompt ju-
dicial determination possible need to align with a state judi-
cial practice that provides a prompt disposition in the state
courts. The emphasis matters, because although Littleton’s
ordinance is not as suspect as censorship, neither is it as
innocuous as common zoning. It is a licensing scheme trig-
gered by the content of expressive materials to be sold. See
Los Angeles v. Alameda Books, Inc., 535 U. S. 425, 448 (2002)
(Kennedy, J., concurring in judgment) (“These ordinances
are content based, and we should call them so”); id., at 455–
457 (Souter, J., dissenting). Because the sellers may be un-
popular with local authorities, there is a risk of delay in the
licensing and review process. If there is evidence of foot
dragging, immediate judicial intervention will be required,
and judicial oversight or review at any stage of the proceed-
ings must be expeditious.
Justice Scalia, concurring in the judgment.
Were the respondent engaged in activity protected by the
First Amendment, I would agree with the Court’s disposition
of the question presented by the facts of this case (though
not with all of the Court’s reasoning). Such activity, when
subjected to a general permit requirement unrelated to cen-
sorship of content, has no special claim to priority in the
judicial process. The notion that media corporations have
constitutional entitlement to accelerated judicial review of
the denial of zoning variances is absurd.
I do not believe, however, that Z. J. Gifts is engaged in
activity protected by the First Amendment. I adhere to the
view I expressed in FW/PBS, Inc. v. Dallas, 493 U. S. 215,
250 (1990) (opinion concurring in part and dissenting in part):
the pandering of sex is not protected by the First Amend-
ment. “The Constitution does not require a State or munici-
pality to permit a business that intentionally specializes in,

541US2 Unit: $U57 [05-09-06 14:35:40] PAGES PGT: OPIN
788 CITY OF LITTLETON v. Z. J. GIFTS D–4, L. L. C.
Scalia, J., concurring in judgment
and holds itself forth to the public as specializing in, perform-
ance or portrayal of sex acts, sexual organs in a state of
arousal, or live human nudity.” Id., at 258. This represents
the Nation’s long understanding of the First Amendment,
recognized and adopted by this Court’s opinion in Ginzburg
v. United States, 383 U. S. 463, 470–471 (1966). Littleton’s
ordinance targets sex-pandering businesses, see Littleton
City Code § 3–14–2 (2003); to the extent it could apply to
constitutionally protected expression its excess is not so
great as to render it substantially overbroad and thus sub-
ject to facial invalidation, see FW/PBS, 493 U. S., at 261–262.
Since the city of Littleton “could constitutionally have pro-
scribed the commercial activities that it chose instead to li-
cense, I do not think the details of its licensing scheme had
to comply with First Amendment standards.” Id., at 253.

Job: 541ORD Take: NOT1 B.V. Date/Time: 10-05-06 18:16:47
Reporter’s Note
The next page is purposely numbered 901. The numbers between 788
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita-
tions available upon publication of the preliminary prints of the United
States Reports.