                                                                               RECOMMENDED FOR FULL-TEXT PUBLICATION
24    Nightclubs, Inc. v. City                     No. 98-6581                      Pursuant to Sixth Circuit Rule 206
      of Paducah, et al.                                                    ELECTRONIC CITATION: 2000 FED App. 0041P (6th Cir.)
                                                                                        File Name: 00a0041p.06

plaintiff does not even allege that in the case at hand the
avenues for prompt judicial review were somehow                     UNITED STATES COURT OF APPEALS
inadequate. Access to the federal courts in this case was
immediate, and a decision was rendered promptly (the                                  FOR THE SIXTH CIRCUIT
ordinance was enacted on August 11, 1998, and after a                                   _________________
hearing on October 1, 1998, the District Court for the Western
District of Kentucky entered a final order granting in part and
                                                                                                  ;
denying in part plaintiff’s motion for a preliminary injunction
                                                                                                   
on October 29, 1998). In addition, the spirit of the Freedman        NIGHTCLUBS, INC.,
                                                                                                   
test, that undue suppression of constitutionally protected                   Plaintiff-Appellant,
                                                                                                   
speech be avoided, is satisfied on these facts because, as the
                                                                                                   
District Court pointed out in this case, the plaintiff may be                                                   No. 98-6581
                                                                               v.
                                                                                                   
granted a temporary restraining order or injunction under the                                       >
                                                                                                   
Kentucky procedural rules after it initiates the judicial action.
                                                                     CITY OF PADUCAH, et al.,
                                                                            Defendants-Appellees. 
For these reasons, I believe that we should not invalidate on

                                                                                                  1
its face the section of the City of Paducah ordinance which
explicitly states that it allows prompt judicial review in any
court of competent jurisdiction for its failure to provide
prompt judicial review.
                                                                            Appeal from the United States District Court
                                                                          for the Western District of Kentucky at Paducah.
                                                                         No. 98-00241—Thomas B. Russell, District Judge.
                                                                                      Argued: September 22, 1999
                                                                                  Decided and Filed: February 2, 2000
                                                                             Before: MERRITT and CLAY, Circuit Judges;
                                                                                      ALDRICH,* District Judge.




                                                                        *
                                                                         The Honorable Ann Aldrich, United States District Judge for the
                                                                    Northern District of Ohio, sitting by designation.

                                                                                                     1
2    Nightclubs, Inc. v. City                   No. 98-6581     No. 98-6581                       Nightclubs, Inc. v. City     23
     of Paducah, et al.                                                                                of Paducah, et al.

                   _________________                            must examine the swiftness of a state court’s procedures,
                                                                regardless of the language in the ordinance itself, before
                        COUNSEL                                 deciding whether a prompt judicial determination on the
                                                                merits of the action could potentially be reached. I do not
ARGUED: Charlotte B. Scott, BRADLEY, BRYANT &                   believe that to be the intention of the Court in FW/PBS.
KAUTZ, Paducah, Kentucky, for Appellant. David L. Kelly,
DENTON & KEULER, Paducah, Kentucky, for Appellees.                 The broad language of FW/PBS holds only that “the
ON BRIEF: Charlotte B. Scott, William E. Scent,                 possibility of prompt judicial review” or “an avenue for
BRADLEY, BRYANT & KAUTZ, Paducah, Kentucky, for                 prompt judicial review” is required. See FW/PBS, 493 U.S.
Appellant. David L. Kelly, DENTON & KEULER, Paducah,            at 228-29. While some language in Justice Brennan’s
Kentucky, for Appellees.                                        concurring opinion indicating that a “prompt judicial
                                                                determination” might be required has caused discussion
   ALDRICH, D. J., delivered the opinion of the court, in       among the Circuit courts, several Circuits have agreed that
which CLAY, J., joined. MERRITT, J. (pp. 19-24), delivered      “prompt judicial review” only means access to prompt
a separate dissenting opinion.                                  judicial review. See, e.g., Boss Capital, Inc. v. City of
                                                                Casselberry, 187 F.3d 1251 (11th Cir. 1999); TK’s Video, Inc.
                   _________________                            v. Denton County, 24 F.3d 705 (5th Cir. 1994); Graff v. City
                                                                of Chicago, 9 F.3d 1309 (7th Cir. 1993) (en banc); Jews for
                       OPINION                                  Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st
                   _________________                            Cir. 1993). In addition, the Second Circuit has intimated that
  ALDRICH, District Judge. Plaintiff-Appellant Nightclubs,      it would follow this line of reasoning. See, Beal v. Stern, 184
Inc. (“Nightclubs”) brought this action against the City of     F.3d 117 (2d Cir. 1999) (noting, without deciding, that
Paducah, Kentucky; the City Commission of the City of           prompt access to judicial review in state courts would satisfy
Paducah, Kentucky; Albert Jones, in his official capacity as    the Freedman test). I do not believe the Court intended for a
the Mayor of Paducah, Kentucky; and James Zumwalt, in his       prompt judicial determination to be required in a situation
official capacity as the City Manager of Paducah, Kentucky      where the city has provided for the broadest type of judicial
(collectively “the City” or “Paducah”). Pursuant to 42 U.S.C.   review within its powers. To find otherwise is to invalidate
§ 1983, Nightclubs challenges the constitutionality of a        broadly-worded city ordinances on the basis of the swiftness
Paducah ordinance that provides for the licensing and           or slowness of that particular state’s judicial procedures, a test
regulation of sexually oriented businesses and their            that could force Circuits to come to seemingly arbitrary and
employees. The District Court denied Nightclubs’ motion for     inconsistent decisions based on the various procedures of the
a preliminary injunction in substantial part. Nightclubs        different state court systems within their reach. For these
appeals that denial, arguing that the ordinance’s licensing     reasons, I do not believe FW/PBS requires the result the Court
scheme amounts to an unlawful prior restraint in violation of   reaches here.
the First and Fourteenth Amendments to the United States           Even if a prompt judicial determination is required, the
Constitution. This Court has jurisdiction pursuant to 28        plaintiff in this case does not meet the burden of proving that
U.S.C. § 1291 and § 1292(a)(1). Because the District Court      it could not gain such a prompt judicial determination in some
erred in not enjoining the licensing scheme, we REVERSE,        court of competent jurisdiction over the matter. In fact, the
VACATE, and REMAND.
22   Nightclubs, Inc. v. City                    No. 98-6581      No. 98-6581                              Nightclubs, Inc. v. City        3
     of Paducah, et al.                                                                                         of Paducah, et al.

meaning of § 11-7(a), nor given it a sensible meaning that                                            I.
would uphold its validity.
                                                                    Nightclubs, Inc., doing business as “Regina’s House of
                          *     *   *                             Dolls,” is a Kentucky corporation that owns and operates an
                                                                  adult entertainment business featuring performances by
  The Court’s opinion also erroneously concludes that the         female dancers.       The business has been operating
City of Paducah ordinance fails to provide for “prompt            continuously in Paducah, Kentucky since 1987. On August
judicial review” as required by FW/PBS, Inc. v. City of Dallas    11, 1998, the City of Paducah enacted Ordinance No. 98-8-
and our own Sixth Circuit precedent.                              5925 (“the ordinance”), which is designed to regulate sexually
                                                                  oriented businesses. Regina’s House of Dolls qualifies   as an
   Nightclubs, Inc. bears the burden of proving to the court      “adult cabaret” under § 11-2(3) of the ordinance.1
that the ordinance does not provide an avenue for prompt
judicial review. See FW/PBS, 493 U.S. at 229-30 (explicitly         In addition to regulating the substantive operation of
declining to shift the burden of proof to the government in       sexually oriented businesses, the ordinance requires such
licensing scheme cases). The plaintiff has failed to meet that    businesses to obtain licenses from the City prior to operation.
burden. Specifically, the plaintiff has failed to address the     See Ord. § 11-6(a). The ordinance also requires individuals
fact that this ordinance provides for prompt judicial review in   who work as managers and entertainers in sexually oriented
any court of competent jurisdiction, including federal courts.    businesses to obtain employee licenses from the City. See id.
The Court argues that the Kentucky procedures at issue            Section 11-6 delineates the licensing application procedures.
provide for even more potential delay than do the Tennessee       See Ord. §§ 11-6(b)-(g). An applicant for a sexually oriented
procedures this court found to require undue delay in East        business license must submit various pieces of information to
Brook Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.       the City, including a complete set of fingerprints “on forms as
1995). But the ordinance in that case, unlike the ordinance       prescribed by the Chief of Police,” his or her social security
before us today, provided for appeal from an adverse decision     number and/or tax identification number, and a description of
by common law writ of certiorari to the state courts of           “the nature of the activity or activities to be engaged in at the
Tennessee. See id. at 225. Where judicial review is limited       establishment.” Ord. § 11-6(e). The applicant must also
in that manner, certainly a facial challenge that the limiting    disclose certain details regarding any crime(s) that he or she
language precludes “prompt judicial review” has more of a         has been convicted of “relating to prostitution, solicitation, or
chance of success. But how can an ordinance which allows          sexual offenses” within the three years prior to the date of the
judicial review “in any court of competent jurisdiction,” and     application. Ord. § 11-6(e)(3). Section 11-6(e)(11) states that
further urges that the matter be “promptly reviewed” by the
courts be declared to be facially invalid for not providing an
avenue for prompt judicial review? Certainly East Brooks              1
Books is distinguishable on that basis.                                 The ordinance defines “adult cabaret” as “a night club, bar,
                                                                  restaurant, or similar commercial establishment which regularly features:
  The Court relies on FW/PBS for the proposition that             (a) Persons who appear in a state of nudity or semi-nude; or (b) Live
“prompt judicial review” requires more than access, without       performance [sic] which are characterized by the exposure of ‘specified
                                                                  anatomical areas’ or by ‘specified sexual activities’; or (c) Films, motion
interference, to the judicial system. Instead, the Court          pictures, video cassettes, slides or other photographic reproductions which
essentially argues that in each case before it a federal court    are characterized by the depiction or description of ‘specified sexual
                                                                  activities’ or ‘specified anatomical areas’.” See Ord. § 11-2(3).
4        Nightclubs, Inc. v. City                        No. 98-6581        No. 98-6581                       Nightclubs, Inc. v. City      21
         of Paducah, et al.                                                                                        of Paducah, et al.

the applicant must already possess a current “City business                 the face of the ordinance was “more than remedied by the
license,” and that “the premises must be inspected and found                city’s narrowing construction.” Id.
to be in compliance with health, fire, zoning, plumbing and
building codes of the City.” Ord. § 11-6(e)(11).                               Rock Against Racism is not the only example of the federal
                                                                            courts’ reluctance to strike an ordinance, even on a First
    Section 11-7(a) provides as follows:                                    Amendment facial challenge, unless absolutely necessary.
                                                                            When the Supreme Court first announced its intention to
    Upon receipt of an application properly filed with the                  allow First Amendment facial challenges, it tempered that
    Director and upon payment of the non-refundable                         decision by noting that “we believe that the overbreadth of a
    application fee, the Director or his/her designee shall                 statute must not only be real, but substantial as well, judged
    immediately stamp the application as received and shall                 in relation to the statute’s plainly legitimate sweep.”
    immediately thereafter initiate an investigation of the                 Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). This
    application and the proposed sexually oriented business                 language in Broadrick was quoted by the Court when it held
    by all appropriate City departments and agencies. The                   that “there must be a realistic danger that the statute itself will
    City shall approve or deny the issuance of a license to an              significantly compromise recognized First Amendment
    applicant within ten (10) business days after receipt of a              protections of parties not before the Court for it to be facially
    completed sexually oriented business application.                       challenged on overbreadth grounds.” City Council of Los
                                                                            Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)
Ord. § 11-7(a). Thus, once an applicant submits a                           (finding that an ordinance could not be challenged facially
“completed” business license application in accordance with                 when there was no proof that it would be applied any
§ 11-6, the City Manager must immediately instruct various2                 differently to others than it had been applied to plaintiffs).
City departments to conduct the appropriate investigations.                 There is no realistic danger that this ordinance will
Section 11-7(a) further declares that the City “shall approve”              compromise First Amendment rights of third parties when the
the issuance of a sexually oriented business license “unless”               enforcing organization, the City of Paducah, has agreed to
the City determines that the application is deficient in one of             interpret the statute in a way that comports with the First
eight specified ways. Id. That is, Paducah will deny a                      Amendment.
business license if the applicant is overdue on any payments
to the City, has failed to provide requisite information on the                When we analyze the mandatory language of the ordinance
application, has failed to pay the license fee, or otherwise “has           itself and take into account the City’s own interpretation of its
failed to comply with any provision or requirement of this                  duties under the ordinance, I agree with the District Court that
ordinance.” Id. A business license will also be denied if the               there is no problem here with delay. Our Court has gone out
premises to be used for the sexually oriented business is not               of its way to give the ordinance an unreasonable
in compliance with zoning requirements or with applicable                   interpretation. Instead of emasculating the ordinance in order
                                                                            to hold it invalid, it is our responsibility to give the law a
                                                                            “rational and sensible construction” that will uphold its
     2
      Although the ordinance continuously refers to “the Director” of the   validity. American Tobacco Co. v. Patterson, 456 U.S. 63
City, the ordinance defines the Director as “the City Manager or his/her    (1982). See SUTHERLAND, STATUTORY CONSTRUCTION
designee.” As the City Manager is a defendant in this action, the Court     §§ 45.11—45.12 (5th ed. 1992). Our Court has not
will refer to this individual as “the City Manager” rather than “the        interpreted the ordinance in accordance with the plain
Director.”
20   Nightclubs, Inc. v. City                     No. 98-6581      No. 98-6581                          Nightclubs, Inc. v. City         5
     of Paducah, et al.                                                                                      of Paducah, et al.

Court noted in FW/PBS, “[a]lthough facial challenges to            health, fire, building, and plumbing codes. Id. Licenses are
legislation are generally disfavored, they have been permitted     to be renewed annually under these same procedures. See
in the First Amendment context where the licensing scheme          Ord. §§ 11-10(a)-(b).
vests unbridled discretion in the decision maker and where the
regulation is challenged as overbroad.” FW/PBS, Inc. v. City          Sections 11-15 and 11-17 govern appeals from the denial,
of Dallas, 493 U.S. 215, 223 (1990) (citing City Council of        suspension, or revocation of licenses. Section 11-15 provides
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and        that an aggrieved applicant may appeal the denial of a license
n.15 (1984)).                                                      to the Board of Commissioners (“the Board”) within ten days
                                                                   of receiving notice that his or her application was denied. See
  But that is not the end of the matter. It is the policy of the   Ord. § 11-15(b). The Board must hold a hearing on the
federal courts, even in the First Amendment context, to            appeal within ten days of the filing of the notice of appeal. Id.
consider any limiting constructions which the government           The applicant may be represented by counsel, present
places on its own regulations. Even if the ordinance were not      evidence, and cross-examine witnesses at the hearing; the
pluperfectly clear on its face that the City has only 10 days,     City Manager has the burden to prove that denial of the
the City has stated that its interpretation of the ordinance is    license was appropriate. See Ord. § 11-15(c). The Board
that the City has 10 days within which to complete the             must render a decision in writing within five days of hearing
inspections necessary for the issuance of a license--precisely     the appeal. See Ord. § 11-15(d). If the Board chooses to
the construction which Nightclubs, Inc. concedes completely        remand the matter to the City Manager “for further review
satisfies the definite and specific time limits requirement of     and action,” the City Manager must complete further review
FW/PBS.                                                            within ten days of the remand. Id. Section 11-15(e) states,
                                                                   “The applicant shall have the right to seek prompt judicial
   In a similar situation a few years ago, the Supreme Court       review of the Board of Commissioners’ decision in any court
was faced with a facial invalidity challenge on First              of competent jurisdiction as provided by law. The action
Amendment grounds in conjunction with a concession by the          shall be promptly reviewed by the court.” Ord. § 11-15(e).
government enforcement agency (in that case, the City of           Section 11-17 prescribes almost identical appeal rights for a
New York) that they would interpret the ordinance in a way         license holder seeking an appeal of the suspension or
which would cure the ordinance of its defects. The Court           revocation of a license. See Ord. § 11-17(a)-(f).
noted that “the city has interpreted the guideline in such a
manner as to provide additional guidance to the officials             Soon after the Paducah ordinance went into effect,
charged with its enforcement.” Ward v. Rock Against Racism,        Nightclubs filed this action, challenging the constitutionality
491 U.S. 781, 795 (1989). The Court then found that                of the ordinance both on its face and as applied.3 After
“[a]dministrative interpretation and implementation of a           conducting a hearing on the plaintiff’s motion for a
regulation are, of course, highly relevant to our analysis, for    preliminary injunction, the District Court enjoined only those
‘[i]n evaluating a facial challenge to a state law, a federal      sections of the ordinance pertaining to the high cost of
court must . . . consider any limiting construction that a state   licensing fees and the requirement that landowners submit
court or enforcement agency has proffered.’” Id. at 795-96
(quoting Hoffman Estates v. The Flipside, Inc., 455 U.S. 489,
494 (1982)). Finally, the Court concluded that any defect on           3
                                                                       Adult World, a store that sells books, magazines, and films, filed a
                                                                   companion case, but that case is not before us on appeal.
6       Nightclubs, Inc. v. City                          No. 98-6581        No. 98-6581                        Nightclubs, Inc. v. City   19
        of Paducah, et al.                                                                                           of Paducah, et al.

notarized acknowledgments along with4 license applications.                                      _________________
See Ord. §§ 11-6(e)(13), 11-9(a)-(d). The District Court
declined to enjoin the remaining operational and licensing                                           DISSENT
provisions of the ordinance. Nightclubs appeals that denial                                      _________________
with respect to the licensing scheme, arguing that on its face,
the scheme is an unconstitutional prior restraint upon one’s                    MERRITT, Circuit Judge, dissenting. This appeal is a First
freedom of expression.                                                       Amendment facial challenge to Paducah’s ordinance
                                                                             regulating the issuance of licenses for sexually-oriented
                                   II.                                       businesses, including nude dancing night clubs like plaintiff’s.
                                                                             FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) is
   In deciding whether to grant a preliminary injunction, a                  controlling. In that case, the Supreme Court set out two
district court must consider and balance four factors: (1)                   requirements for such licensing schemes: The scheme must
whether the plaintiff has established a substantial likelihood               provide for definite and specific time limits within which a
or probability of success on the merits; (2) whether there is a              license is to be granted or denied, and an avenue for prompt
threat of irreparable harm to the plaintiff; (3) whether                     judicial review must be established. The Paducah ordinance
issuance of the injunction would cause substantial harm to                   satisfies both requirements.
others; and (4) whether the public interest would be served by
granting injunctive relief. See Connection Distrib. Co. v.                                          *       *        *
Reno, 154 F.3d 281, 288 (6th Cir. 1998), cert. denied, 119
S.Ct. 1496 (1999). This Court reviews the grant or denial of                    The ordinance itself is clear enough on its face. Section 11-
a preliminary injunction for an abuse of discretion. Id. “‘The               79(a) requires an “immediate” investigation “upon receipt of
district court’s determination will be disturbed only if the                 an application,” and “the City shall approve or deny the
district court relied upon clearly erroneous findings of fact,               issuance of a license to an applicant within ten (10) business
improperly applied the governing law, or used an erroneous                   days.” The ordinance on its face requires Paducah’s various
legal standard.’” Id. (quoting Blue Cross & Blue Shield                      administrative investigations and its final decision to take
Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d                 place “within ten (10) business days.” So I do not see any
318, 322 (6th Cir. 1997)). In cases involving the First                      problem on the issue of delay. Even if there were some
Amendment, the crucial inquiry is usually whether the                        ambiguity, the City has conceded that it must finish its work
plaintiff has demonstrated a likelihood of success on the                    and issue a decision within the 10-day period. If the City
                                                                             delays beyond that time, the plaintiff would be entitled
                                                                             immediately to an injunction.
    4
       Section 11-6(e)(13) requires a business license applicant to submit
a notarized statement from the landowner of record “acknowledging that          In addition, the Court’s opinion proceeds under the
a sexually oriented business establishment is permitted to be located on     incorrect assumption that challenging this city ordinance on
the real property.” Ord. § 11-6(e)(13). The District Court found this        its face is the appropriate course of action under the
provision burdensome because the landowner is not legally obligated to       circumstances. It is true that our First Amendment case law
give such a statement, and concluded that the City had failed to show how
this requirement furthers a substantial government interest. The District    has long allowed facial challenges to regulations implicating
Court enjoined § 11-9, which deals with application and annual license       First Amendment rights, even in situations where facial
fees, because Paducah had failed to justify the high cost of the fees. The   challenges would otherwise be deemed inappropriate. As the
City did not cross-appeal the District Court’s decision on these issues.
18   Nightclubs, Inc. v. City                   No. 98-6581     No. 98-6581                        Nightclubs, Inc. v. City        7
     of Paducah, et al.                                                                                 of Paducah, et al.

Paducah’s ordinance lacks such an assurance, it is              merits. Id. This is so because, as in this case, the issues of
unconstitutional.                                               the public interest and harm to the respective parties largely
                                                                depend on the constitutionality of the statute. Id.
                            IV.
                                                                                                III.
  We hold that the City’s licensing scheme, on its face,
violates the First Amendment because it fails to provide that      The sole issue raised on appeal is whether Paducah’s
the City will make a licensing decision within a brief          licensing scheme, on its face, contains adequate procedural
specified time period, that the status quo will be maintained   safeguards as required by the First Amendment. We conclude
during this period and during judicial review, and that a       that it does not.
prompt judicial determination will be available. Accordingly,
we conclude that the District Court erred in denying the          As an initial matter, we note that Nightclubs has standing
plaintiff’s request to preliminarily enjoin the licensing       to bring a facial attack against the City’s licensing scheme.
scheme, and we REVERSE and VACATE the District                  “In the area of freedom of expression it is well established
Court’s order in this regard. We also REMAND the case for       that one has standing to challenge a statute on the ground that
a determination of whether the licensing scheme is severable    it delegates overly broad licensing discretion to an
from the remainder of the ordinance, and for further            administrative office, whether or not his conduct could be
proceedings consistent with this opinion.                       proscribed by a properly drawn statute, and whether or not he
                                                                applied for a license.” Freedman v. Maryland, 380 U.S. 51,
                                                                56 (1965). A form of unbridled discretion is the failure to
                                                                place brief, specific time limits on the decision-making
                                                                process. See id. at 57; East Brooks Books, Inc. v. City of
                                                                Memphis, 48 F.3d 220, 224, reh’g denied (6th Cir.), cert.
                                                                denied, 516 U.S. 909 (1995). The rationale for permitting a
                                                                facial challenge is that when a licensing scheme allegedly
                                                                contains a risk of delay, “‘every application of the statute
                                                                create[s] an impermissible risk of suppression of ideas.’”
                                                                FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24 (1990)
                                                                (plurality op.) (quoting City Council of Los Angeles v.
                                                                Taxpayers for Vincent, 466 U.S. 789, 798 n.15 (1984))
                                                                (brackets in original). Because Nightclubs claims that
                                                                Paducah’s licensing scheme creates an impermissible risk of
                                                                delay and lacks constitutionally-required safeguards,
                                                                Nightclubs   has standing to challenge the ordinance on its
                                                                face.5

                                                                    5
                                                                      Paducah does not dispute that the plaintiff engages in activity
                                                                protected by the First Amendment. See, e.g., Barnes v. Glen Theatre,
                                                                Inc., 501 U.S. 560, 566 (1991) (erotic dancing constitutes expressive
8      Nightclubs, Inc. v. City                            No. 98-6581         No. 98-6581                          Nightclubs, Inc. v. City       17
       of Paducah, et al.                                                                                                of Paducah, et al.

  A “prior restraint” exists when speech is conditioned upon                   rendered affirming a denial of a special permit”). For
the prior approval of public officials. See, e.g., Southeastern                example, an ordinance could provide that a license shall issue
Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (denial                   if a reviewing court fails to reach a decision within a
of use of public forum without procedural safeguards is                        reasonably brief period of time. Similarly, a city could also
unconstitutional prior restraint). Although prior restraints                   issue provisional licenses to those businesses and employees
“are not unconstitutional per se,” they come to court bearing                  who choose to seek judicial review of license denials. As
a heavy presumption against their validity. Id. at 558                         discussed previously, the Paducah ordinance fails to even
(citations omitted). Prior restraints are presumptively invalid                maintain the status quo, let alone consider the practicalities
because they typically involve “two evils that will not be                     involved with the necessity of prompt judicial review.
tolerated”: (1) the risk of censorship associated with the
vesting of unbridled discretion in government officials; and                     There are other measures that a city may institute to help
(2) “the risk of indefinitely suppressing permissible speech”                  ensure that judicial review will be expeditious. An ordinance
when a licensing law fails to provide for the prompt issuance                  may provide that an administrative transcript must be
of a license. FW/PBS, 493 U.S. at 225-27.                                      submitted to a court within a brief, specified period of time.
                                                                               Cities may also petition their state legislatures to pass laws
   In Freedman, the Supreme Court invalidated a Maryland                       that would obligate state courts to resolve municipal
film censorship statute under the First Amendment because                      administrative appeals within a reasonably short period of
the statute lacked necessary procedural safeguards.                            time. While these measures may seem burdensome on first
Freedman, 380 U.S. at 59-60. The Court held that three                         blush, they are reasonable in light of the great11importance this
procedural safeguards are required to avoid constitutional                     nation attaches to the freedom of expression. It is precisely
infirmity. Id. at 58-59. First, the decision whether to issue a                because of this importance that prior restraints upon speech
license must be made within a “specified brief period,” and,                   are strongly disfavored and presumptively invalid in the first
if judicial review is sought, the status quo must be preserved                 place. As courts long have recognized, the procedural
pending “a final judicial determination on the merits.” Id. at                 safeguards outlined in Freedman, FW/PBS, and their progeny
59. Second, the scheme “must also assure a prompt final                        are necessary to prevent licensing-scheme prior restraints
judicial decision, to minimize the deterrent effect of an                      from being used as instruments for the suppression of
interim and possibly erroneous denial of a license.” Id.                       expression.
Third, a censorship scheme must place the burden of
instituting judicial proceedings and proving that expression is                  In sum, a system of prior restraint that fails to ensure a
unprotected on the censor rather than the exhibitor. Id. at 58.                reasonably prompt decision by a judicial officer cannot be
The holding of Freedman has been reaffirmed and applied in                     squared with the First Amendment. See Baby Tam, 154 F.3d
                                                                               at 1101-02; East Brooks Books, 48 F.3d at 225. Because

activity “within the outer perimeters of the First Amendment”).                    11
Nonetheless, the dissent posits that a facial challenge is not “the                   It is worth noting that cities have other ways to regulate the
appropriate course of action” in this case because, in effect, the City’s      secondary effects of sexually-oriented businesses besides imposing
attorney promised at oral argument that the City would apply the               licensing schemes upon them. The Paducah ordinance itself includes a
ordinance in a constitutional manner. However, there is no evidence in         number of substantive regulations, such as a requirement that performers
the record to support the limiting construction that the dissent is so eager   remain six feet away from patrons. Zoning requirements are another
to read into the ordinance.                                                    common way of regulating sexually-oriented businesses.
16     Nightclubs, Inc. v. City                            No. 98-6581         No. 98-6581                       Nightclubs, Inc. v. City      9
       of Paducah, et al.                                                                                             of Paducah, et al.

  The phrase ‘judicial review’ compels this conclusion.                        a long line of prior restraint cases. See, e.g., Riley v. National
  The phrase necessarily has two elements--(1)                                 Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988)
  consideration of a dispute by a judicial officer, and (2) a                  (invalidating state licensing requirement for fundraisers that
  decision. Without consideration, there is no review;                         permitted indefinite delays); Southeastern Promotions, 420
  without a decision, the most exhaustive review is                            U.S. at 560 (reaffirming Freedman requirements and striking
  worthless. In baseball terms it would be like throwing a                     down system regulating use of public forum); United States
  pitch and not getting a call. As legendary major league                      v. Thirty-Seven Photographs, 402 U.S. 363, 374 (1971)
  umpire Bill Klem once said to an inquisitive catcher: ‘It                    (applying Freedman requirements to forfeiture proceedings
  ain’t nothin’ till I call it.’ This is also true of judicial                 for obscene materials).
  review. Until the judicial officer makes the call, it ain’t
  nothin’.                                                                        In FW/PBS, the Supreme Court applied Freedman to a
                                                                               Dallas, Texas ordinance similar to the Paducah ordinance at
Baby Tam, 154 F.3d at 1101-02.                                                 issue here. The Dallas ordinance required sexually oriented
                                                                               businesses to pass municipal inspections in order to obtain
   Quite obviously, a municipality has no authority to control                 mandatory licenses. FW/PBS, 493 U.S. at 227. In a plurality
the period  of time in which a state court will adjudicate a                   opinion, Justice O’Connor, joined by Justices Stevens and
matter.10 Indeed, a city does not even possess the authority to                Kennedy, held that two of the three Freedman safeguards “are
create a mere “avenue” for prompt judicial review; the                         essential” to prevent a licensing scheme from causing undue
availability of judicial review is, in effect, dependent upon                  delay in the issuance of a license: “the licensor must make the
state law. We recognize that, as a practical matter, the                       decision whether to issue the license within a specified and
requirement of prompt judicial review means that a city                        reasonable time period during which the status quo is
seeking to impose a licensing scheme must take certain steps                   maintained, and there must be the possibility of prompt
to avoid constitutional infirmities. Specifically, a city may                  judicial review in the event that the license is erroneously
very well have to go beyond merely maintaining the status                      denied.” Id. at 228. The plurality concluded that the third
quo and actually permit the communication of protected                         Freedman requirement--that the censor bear the burden of
expression until a judicial decision is rendered on a matter.                  going to court and proving the unprotected nature of the
See 11126 Baltimore, 58 F.3d at 1001 n.18 (county could                        speech--is inapplicable when a system of prior restraint does
entirely avoid constitutional problem “by permitting adult                     not require a public official to pass judgment on the content
bookstores to operate until a judicial determination is                        of any speech. Id. at 229-30. In a concurring opinion, Justice
                                                                               Brennan, joined by Justices Marshall and Blackmun,
                                                                               expressed the belief that all three of the procedural safeguards
     10
       Only a state legislature has the power to pass legislation requiring    outlined in Freedman must be applied to any system of prior
state courts to resolve certain types of cases within a particular period of   restraint. Id. at 239 (Brennan, J., concurring).
time. For example, legislatures have mandated statutorily that, to ensure
one’s right to a speedy trial, courts must conduct criminal trials within a      Although the status of the third Freedman requirement
certain amount of time. See, e.g., K.R.S. § 421.510 (when defendant is         remains unclear in the licensing context, this Circuit has
charged with sexual abuse of a person under 16 years of age, defendant
must be tried within 90 days of hearing); K.R.S. § 500.110 (Kentucky           previously noted that, under FW/PBS, at least the first two
court must try prisoner facing indictment on additional charges within 180     Freedman safeguards are essential for a licensing scheme to
days of prisoner’s request); Ky. RCr. 9.02 (trials of all criminal             comport with the First Amendment. See East Brooks Books,
defendants in Kentucky shall be held as promptly as possible).
10       Nightclubs, Inc. v. City                          No. 98-6581         No. 98-6581                           Nightclubs, Inc. v. City        15
         of Paducah, et al.                                                                                               of Paducah, et al.

48 F.3d at 224 (invalidating Memphis, Tennessee sexually                       Freedman’s requirement of “a prompt final judicial decision.”
oriented business ordinance that failed to ensure prompt                       Freedman, 380 U.S. at 59. See Baby Tam, 154 F.3d at 1102
judicial review). Thus, a licensing scheme must remove                         (“plurality took issue only with Freedman’s requirement that
standardless discretion from government officials and contain                  the censor bear the cost of going to court obtain judicial
two procedural safeguards: (1) the decision whether to issue                   review; otherwise, FW/PBS offered nothing different from
a license must be made within a specified brief period, and                    Freedman’s concept of what ‘judicial review’ meant”); 11126
the status quo must be maintained during that period and                       Baltimore, 58 F.3d at 1000 (“Justice O’Connor’s decision in
during judicial review, and (2) there must be a “guarantee of                  FW/PBS cannot properly be read to relax the Freedman
prompt judicial review.” Id. at 225.                                           prompt judicial review requirement”). Justice O’Connor
                                                                               described the first two Freedman requirements as “essential”;
   Nightclubs argues that Paducah’s ordinance lacks both of                    she gave no indication that she was modifying the second
these mandatory safeguards. We agree. First, on its face, the                  requirement of prompt judicial review. See FW/PBS, 493
ordinance fails to ensure that the City will decide whether to                 U.S. at 228-29. Although she spoke of “the possibility of”
issue a license within a brief specified time period during                    and “an avenue for” prompt judicial review, see id., Justice
which the status quo is maintained. Although the ordinance                     O’Connor in no way altered what “judicial review” clearly
states that Paducah will approve or deny an application within                 means under Freedman and 9its progeny: “a final judicial
ten days, the ordinance also states that no license will issue                 determination on the merits.” Freedman, 380 U.S. at 59.
unless the City executes, and the premises passes, a variety of
building inspections. See Ord. § 11-7(a). No specific time                       Indeed, if mere access to a judicial forum were sufficient,
limits for completion of these inspections are placed on the                   then the second Freedman safeguard would be rendered
“appropriate City departments and agencies.” Id. Further, the                  virtually meaningless. See Baby Tam, 154 F.3d at 1101.
ordinance does not indicate that a license shall issue if any of               Justice O’Connor observed in FW/PBS that “the core policy
the City departments fails to complete a mandatory inspection                  underlying Freedman is that the license for a First
within a timely period.6 In this regard, the Paducah ordinance                 Amendment-protected business must be issued within a
                                                                               reasonable period of time,” and that the first two Freedman
                                                                               safeguards work together to ensure that the entire review
     6
                                                                               process will be expeditious. FW/PBS, 493 U.S. at 228. As
      At oral argument, defendants’ counsel “conceded” that the                the Ninth Circuit pointed out in Baby Tam,
ordinance requires the City to issue a license within ten days even if the
City fails to complete the necessary inspections. The dissenting opinion
interprets this “concession” as a limiting construction that binds this
Court. Both the City and the dissent fail to recognize that any limiting
construction must “be made explicit by textual incorporation, binding
judicial or administrative construction, or well-established practice.” City       9
of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988)                      Even if Justice O’Connor’s plurality opinion could be read as
(ordinance vesting unbridled discretion in city official is unconstitutional   reducing the prompt judicial review requirement, it was joined by only
on its face). First Amendment rights would rest on a very thin reed            two other justices, and, therefore, could not have overruled Freedman.
indeed if the promises of a city attorney at oral argument were alone          Further, there is no doubt that in FW/PBS, Justice Brennan, along with the
sufficient to authoritatively limit the meaning of an ordinance. The record    two justices joining his concurring opinion, unequivocally maintained that
in this case is devoid of any evidence that a state court has construed the    all three Freedman requirements should apply, including the requirement
Paducah ordinance or that “a well-understood and uniformly applied             of “a prompt judicial determination.” FW/PBS, 493 U.S. at 239
practice has developed that has virtually the force of a judicial              (Brennan, J., concurring) (emphasis added).
14       Nightclubs, Inc. v. City                           No. 98-6581         No. 98-6581                            Nightclubs, Inc. v. City        11
         of Paducah, et al.                                                                                                 of Paducah, et al.

   Moreover, this Circuit and a number of other circuits have                   is indistinguishable from the Dallas ordinance struck down in
held that a licensing scheme must reasonably ensure a prompt                    FW/PBS. See FW/PBS, 493 U.S. at 227 (although ordinance
judicial determination, and not mere access to judicial review.                 stated license would issue within 30 days of application,
See Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d                         ordinance did not “set a time limit within which the
1097, 1101 (9th Cir. 1998) (“‘prompt judicial review’ means                     [necessary] inspections must occur”). Moreover, § 11-6(e)
the opportunity for a prompt hearing and a prompt decision by                   delineates the information that comprises a “completed”
a judicial officer”); 11126 Baltimore Blvd., Inc. v. Prince                     business license application. See Ord. § 11-6(e). The
George’s County, Maryland, 58 F.3d 988, 1000-01 (4th Cir.)                      eleventh item in this list is that the applicant “must have a
(en banc), cert. denied, 516 U.S. 1010 (1995) (under FW/PBS                     current City business license, and the premises must be
and its progeny, prompt judicial determination is required);                    inspected and found to be in compliance with health, fire,
East Brooks Books, 48 F.3d at 225 (prompt judicial                              zoning, plumbing and building codes.” Ord. § 11-6(e)(11).
adjudication required). Although the First, Fifth, and                          Thus, § 11-6(e)(11) seems to require these inspections to be
Eleventh Circuits have concluded that “for licensing                            completed before the ten-day investigatory period in § 11-7(a)
ordinances, prompt judicial review only means access to                         will be triggered. The ordinance does not explain how
prompt judicial review,” Boss Capital, Inc. v. City of                          inspections can be conducted prior to submission of a
Casselberry,   1999 WL 688046, slip op. at *4 (11th Cir. Sept.                  completed license application, and such a requirement is
3, 1999),8 this Court remains persuaded that Supreme Court                      plagued with the risk of indefinite delays. Even if § 11-
precedent requires a sufficiently prompt determination on the                   6(e)(11) can be read to merely foreshadow the City’s
merits.                                                                         responsibilities under § 11-7(a), these sections fail to ensure
                                                                                that a license will be issued within a brief specified time
  Like the Fourth and Ninth Circuits, we do not read Justice                    period for the reasons discussed above.
O’Connor’s plurality opinion in FW/PBS as relaxing
                                                                                   Furthermore, the ordinance fails to preserve the status quo
                                                                                either during the administrative process for license renewals
                                                                                or pending judicial review of decisions to suspend, revoke, or
as a dispute over whether the applicant falsely answered a question on the      not renew licenses. If Paducah chooses not to renew a
application. See Ord. §§ 11-7(a)(3), 11-8(2). Because any denial of a           sexually oriented business license, that business must cease
license would necessarily implicate the First Amendment, a licensing
scheme must, on its face, ensure that all aggrieved applicants will be
granted a prompt review--even those employees and business owners who
do not have the wherewithal to launch costly constitutional attacks against     construction.” Id. at n.11. For that reason, the dissent’s reliance on Ward
the ordinance.                                                                  v. Rock Against Racism, 491 U.S. 781 (1989), is totally misplaced. In
     8                                                                          Rock Against Racism, which was not a prior restraint case, but, rather, a
      The Eleventh Circuit recently held in Boss Capital, as the First and      case involving a time, place, or manner regulation, the District Court had
Fifth Circuits previously have held, that the mere availability of a judicial   “expressly found” that the city engaged in policies and practices that
forum may satisfy the prompt judicial review requirement. See Boss              limited the discretion of public officials. Id. at 795. There is no such
Capital, 1999 WL 688046, slip op. at *5; TK’s Video, Inc. v. Denton             finding in this case. We can neither presume that municipal officials will
County, Texas, 24 F.3d 705, 709 (5th Cir. 1994); Jews for Jesus, Inc. v.        act in good faith and respect a speaker’s First Amendment rights, nor read
Massachusetts Bay Transp. Auth., 984 F.2d 1319, 1327 (1st Cir. 1993).           a requirement into an ordinance that is not fairly and evidently present.
When the Seventh Circuit was presented with the question, an en banc            See City of Lakewood, 486 U.S. at 770, n.11; United Food & Commercial
panel of that court sharply split on the issue. See Graff v. City of Chicago,   Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163
9 F.3d 1309 (7th Cir. 1993), cert. denied, 511 U.S. 1085 (1994).                F.3d 341, 359 (6th Cir. 1998).
12    Nightclubs, Inc. v. City                      No. 98-6581       No. 98-6581                            Nightclubs, Inc. v. City        13
      of Paducah, et al.                                                                                          of Paducah, et al.

operation immediately. The previous license does not remain           decisions, but no time limits were placed on the city’s
in effect while an appeal proceeds before the Board or, later,        obligation to provide an administrative transcript. Id.
while an action is pending in court. See Ord. §§ 11-10, 11-15.        Moreover, although the appeal would have had “precedence
In addition, if the City suspends or revokes a license for one        over other litigation,” there was no assurance that the
of the reasons provided in § 11-16, that decision will be             Tennessee court would have resolved the appeal in a timely
stayed while an appeal proceeds before the Board, but it will         manner. Id. We noted that under Supreme Court case law,
not be stayed pending judicial review. See Ord. § 11-17(b),           judicial review processes with “potential delays of over five
11-17(f). Accordingly, the ordinance fails to maintain the            months are impermissible.” Id. (discussing Southeastern
status quo pending review as the First Amendment requires.            Promotions, 420 U.S. at 562, and Thirty-Seven Photographs,
See Freedman, 380 U.S. at 59 (“[a]ny restraint imposed in             402 U.S. at 373-74). Kentucky law fails to guarantee judicial
advance of a final judicial determination on the merits must          review of Paducah’s licensing decisions within any particular
. . . be limited to preservation of the status quo for the shortest   period of time, let alone within five months.
fixed period compatible with sound judicial resolution”).
                                                                         The defendants argue, and the District Court concluded,
  The second Freedman safeguard--the guarantee of prompt              that the requirement of prompt judicial review is satisfied
judicial review--is also lacking in this case. The ordinance          because an aggrieved applicant or licensee may seek
provides that an applicant, or licensee whose license has been        preliminary injunctive relief soon after filing an original
suspended or revoked, may seek a review of the Board’s                action in Kentucky court. This argument both misinterprets
decision “in any court of competent jurisdiction.” Ord. §§ 11-        a long line of legal precedent in the area of prior restraints and
15(e), 11-17(f). Although Kentucky law does not provide for           minimizes the importance of the First Amendment freedoms
judicial appeals from administrative decisions, an aggrieved          at stake. As previously discussed, Freedman, FW/PBS, and
applicant or licensee may file “an original action” in                East Brooks Books require an assurance of prompt judicial
Kentucky court. See K.R.S. § 23A.010(4) (review of                    review; a theoretical possibility of expeditious judicial review
administrative decision constitutes not appeal, but original          is not constitutionally sufficient. A guarantee of prompt
action). The case then proceeds according to standard court           judicial review is necessary “because undue delay results in
rules, with the state court conducting a “limited trial de novo,      the unconstitutional suppression of protected speech.”
including review of the record of the board and other                 FW/PBS, 493 U.S. at 228. If an applicant challenges the
evidence.” City of Covington v. Tranter, 673 S.W.2d 744,              Board’s decision to uphold the denial of a license, there is
748 (Ky. Ct. App. 1984). The person seeking review of the             nothing in Kentucky law requiring the state court to swiftly
administrative decision generally bears the burden of                 schedule a hearing on a motion for injunctive relief. While
furnishing the transcript to the state court. Id. Kentucky law        we trust state courts to exercise due diligence, we cannot be
does not in any way limit the time for furnishing transcripts,        sure that a state judge, who often is elected and toiling under
conducting a court hearing, or rendering a judicial decision.         a busy docket, will7 conduct a hearing and render a decision in
                                                                      a prompt manner.
  This procedure for judicial review contains an even greater
potential for indefinite delays than the Memphis scheme this
Court found unconstitutional in East Brooks Books. See East               7
                                                                           The District Court not only assumed that the state court would
Brooks Books, 48 F.3d at 225. In that case, Tennessee law             speedily issue injunctive relief, but also assumed that a judicial appeal
expressly authorized judicial review of administrative                would be brought on First Amendment grounds. There could, of course,
                                                                      be non-constitutional reasons for challenging the denial of a license, such
