Nightclubs, Inc. v. City of Paducah

24 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
plaintiff does not even allege that in the case at hand the
avenues for prompt judicial review were somehow
inadequate. Access to the federal courts in this case was
immediate, and a decision was rendered promptly (the
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
test, that undue suppression of constitutionally protected
speech be avoided, is satisfied on these facts because, as the
District Court pointed out in this case, the plaintiff may be
granted a temporary restraining order or injunction under the
Kentucky procedural rules after it initiates the judicial action.
For these reasons, I believe that we should not invalidate on
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.
*The Honorable Ann Aldrich, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0041P (6th Cir.)
File Name: 00a0041p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
NIGHTCLUBS, INC.,
Plaintiff-Appellant,
v.
C ITY OF P ADUCAH , et al.,
Defendants-Appellees.
;>

1
No. 98-6581
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.

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2 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
_________________
COUNSEL
ARGUED: Charlotte B. Scott, BRADLEY, BRYANT &
KAUTZ, Paducah, Kentucky, for Appellant. David L. Kelly,
DENTON & KEULER, Paducah, Kentucky, for Appellees.
ON BRIEF: Charlotte B. Scott, William E. Scent,
BRADLEY, BRYANT & KAUTZ, Paducah, Kentucky, for
Appellant. David L. Kelly, DENTON & KEULER, Paducah,
Kentucky, for Appellees.
ALDRICH, D. J., delivered the opinion of the court, in
which CLAY, J., joined. MERRITT, J. (pp. 19-24), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
ALDRICH, District Judge. Plaintiff-Appellant Nightclubs,
Inc. (“Nightclubs”) brought this action against the City of
Paducah, Kentucky; the City Commission of the City of
Paducah, Kentucky; Albert Jones, in his official capacity as
the Mayor of Paducah, Kentucky; and James Zumwalt, in his
official capacity as the City Manager of Paducah, Kentucky
(collectively “the City” or “Paducah”). Pursuant to 42 U.S.C.
§ 1983, Nightclubs challenges the constitutionality of a
Paducah ordinance that provides for the licensing and
regulation of sexually oriented businesses and their
employees. The District Court denied Nightclubs’ motion for
a preliminary injunction in substantial part. Nightclubs
appeals that denial, arguing that the ordinance’s licensing
scheme amounts to an unlawful prior restraint in violation of
the First and Fourteenth Amendments to the United States
Constitution. This Court has jurisdiction pursuant to 28
U.S.C. § 1291 and § 1292(a)(1). Because the District Court
erred in not enjoining the licensing scheme, we REVERSE,
VACATE, and REMAND.
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
23
must examine the swiftness of a state court’s procedures,
regardless of the language in the ordinance itself, before
deciding whether a prompt judicial determination on the
merits of the action could potentially be reached. I do not
believe that to be the intention of the Court in FW/PBS.
The broad language of FW/PBS holds only that “the
possibility of prompt judicial review” or “an avenue for
prompt judicial review” is required. See FW/PBS, 493 U.S.
at 228-29. While some language in Justice Brennan’s
concurring opinion indicating that a “prompt judicial
determination” might be required has caused discussion
among the Circuit courts, several Circuits have agreed that
“prompt judicial review” only means access to prompt
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
Jesus, Inc. v. Mass. Bay Transp. Auth., 984 F.2d 1319 (1st
Cir. 1993). In addition, the Second Circuit has intimated that
it would follow this line of reasoning. See, Beal v. Stern, 184
F.3d 117 (2d Cir. 1999) (noting, without deciding, that
prompt access to judicial review in state courts would satisfy
the Freedman test). I do not believe the Court intended for a
prompt judicial determination to be required in a situation
where the city has provided for the broadest type of judicial
review within its powers. To find otherwise is to invalidate
broadly-worded city ordinances on the basis of the swiftness
or slowness of that particular state’s judicial procedures, a test
that could force Circuits to come to seemingly arbitrary and
inconsistent decisions based on the various procedures of the
different state court systems within their reach. For these
reasons, I do not believe FW/PBS requires the result the Court
reaches here.
Even if a prompt judicial determination is required, the
plaintiff in this case does not meet the burden of proving that
it could not gain such a prompt judicial determination in some
court of competent jurisdiction over the matter. In fact, the

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

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4 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
2Although the ordinance continuously refers to “the Director” of the
City, the ordinance defines the Director as “the City Manager or his/her
designee.” As the City Manager is a defendant in this action, the Court
will refer to this individual as “the City Manager” rather than “the
Director.”
the applicant must already possess a current “City business
license,” and that “the premises must be inspected and found
to be in compliance with health, fire, zoning, plumbing and
building codes of the City.” Ord. § 11-6(e)(11).
Section 11-7(a) provides as follows:
Upon receipt of an application properly filed with the
Director and upon payment of the non-refundable
application fee, the Director or his/her designee shall
immediately stamp the application as received and shall
immediately thereafter initiate an investigation of the
application and the proposed sexually oriented business
by all appropriate City departments and agencies. The
City shall approve or deny the issuance of a license to an
applicant within ten (10) business days after receipt of a
completed sexually oriented business application.
Ord. § 11-7(a). Thus, once an applicant submits a
“completed” business license application in accordance with
§ 11-6, the City Manager must immediately instruct various
City departments to conduct the appropriate investigations.2
Section 11-7(a) further declares that the City “shall approve”
the issuance of a sexually oriented business license “unless”
the City determines that the application is deficient in one of
eight specified ways. Id. That is, Paducah will deny a
business license if the applicant is overdue on any payments
to the City, has failed to provide requisite information on the
application, has failed to pay the license fee, or otherwise “has
failed to comply with any provision or requirement of this
ordinance.” Id. A business license will also be denied if the
premises to be used for the sexually oriented business is not
in compliance with zoning requirements or with applicable
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
21
the face of the ordinance was “more than remedied by the
city’s narrowing construction.” Id.
Rock Against Racism is not the only example of the federal
courts’ reluctance to strike an ordinance, even on a First
Amendment facial challenge, unless absolutely necessary.
When the Supreme Court first announced its intention to
allow First Amendment facial challenges, it tempered that
decision by noting that “we believe that the overbreadth of a
statute must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.”
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). This
language in Broadrick was quoted by the Court when it held
that “there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment
protections of parties not before the Court for it to be facially
challenged on overbreadth grounds.” City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)
(finding that an ordinance could not be challenged facially
when there was no proof that it would be applied any
differently to others than it had been applied to plaintiffs).
There is no realistic danger that this ordinance will
compromise First Amendment rights of third parties when the
enforcing organization, the City of Paducah, has agreed to
interpret the statute in a way that comports with the First
Amendment.
When we analyze the mandatory language of the ordinance
itself and take into account the City’s own interpretation of its
duties under the ordinance, I agree with the District Court that
there is no problem here with delay. Our Court has gone out
of its way to give the ordinance an unreasonable
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
validity. American Tobacco Co. v. Patterson, 456 U.S. 63
(1982). See S UTHERLAND , S TATUTORY C ONSTRUCTION
§§ 45.11—45.12 (5th ed. 1992). Our Court has not
interpreted the ordinance in accordance with the plain

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20 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
Court noted in FW/PBS, “[a]lthough facial challenges to
legislation are generally disfavored, they have been permitted
in the First Amendment context where the licensing scheme
vests unbridled discretion in the decision maker and where the
regulation is challenged as overbroad.” FW/PBS, Inc. v. City
of Dallas, 493 U.S. 215, 223 (1990) (citing City Council of
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798 and
n.15 (1984)).
But that is not the end of the matter. It is the policy of the
federal courts, even in the First Amendment context, to
consider any limiting constructions which the government
places on its own regulations. Even if the ordinance were not
pluperfectly clear on its face that the City has only 10 days,
the City has stated that its interpretation of the ordinance is
that the City has 10 days within which to complete the
inspections necessary for the issuance of a license--precisely
the construction which Nightclubs, Inc. concedes completely
satisfies the definite and specific time limits requirement of
FW/PBS.
In a similar situation a few years ago, the Supreme Court
was faced with a facial invalidity challenge on First
Amendment grounds in conjunction with a concession by the
government enforcement agency (in that case, the City of
New York) that they would interpret the ordinance in a way
which would cure the ordinance of its defects. The Court
noted that “the city has interpreted the guideline in such a
manner as to provide additional guidance to the officials
charged with its enforcement.” Ward v. Rock Against Racism,
491 U.S. 781, 795 (1989). The Court then found that
“[a]dministrative interpretation and implementation of a
regulation are, of course, highly relevant to our analysis, for
‘[i]n evaluating a facial challenge to a state law, a federal
court must . . . consider any limiting construction that a state
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
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
5
3Adult World, a store that sells books, magazines, and films, filed a
companion case, but that case is not before us on appeal.
health, fire, building, and plumbing codes. Id. Licenses are
to be renewed annually under these same procedures. See
Ord. §§ 11-10(a)-(b).
Sections 11-15 and 11-17 govern appeals from the denial,
suspension, or revocation of licenses. Section 11-15 provides
that an aggrieved applicant may appeal the denial of a license
to the Board of Commissioners (“the Board”) within ten days
of receiving notice that his or her application was denied. See
Ord. § 11-15(b). The Board must hold a hearing on the
appeal within ten days of the filing of the notice of appeal. Id.
The applicant may be represented by counsel, present
evidence, and cross-examine witnesses at the hearing; the
City Manager has the burden to prove that denial of the
license was appropriate. See Ord. § 11-15(c). The Board
must render a decision in writing within five days of hearing
the appeal. See Ord. § 11-15(d). If the Board chooses to
remand the matter to the City Manager “for further review
and action,” the City Manager must complete further review
within ten days of the remand. Id. Section 11-15(e) states,
“The applicant shall have the right to seek prompt judicial
review of the Board of Commissioners’ decision in any court
of competent jurisdiction as provided by law. The action
shall be promptly reviewed by the court.” Ord. § 11-15(e).
Section 11-17 prescribes almost identical appeal rights for a
license holder seeking an appeal of the suspension or
revocation of a license. See Ord. § 11-17(a)-(f).
Soon after the Paducah ordinance went into effect,
Nightclubs filed this action, challenging the constitutionality
of the ordinance both on its face and as applied.3 After
conducting a hearing on the plaintiff’s motion for a
preliminary injunction, the District Court enjoined only those
sections of the ordinance pertaining to the high cost of
licensing fees and the requirement that landowners submit

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6 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
4Section 11-6(e)(13) requires a business license applicant to submit
a notarized statement from the landowner of record “acknowledging that
a sexually oriented business establishment is permitted to be located on
the real property.” Ord. § 11-6(e)(13). The District Court found this
provision burdensome because the landowner is not legally obligated to
give such a statement, and concluded that the City had failed to show how
this requirement furthers a substantial government interest. The District
Court enjoined § 11-9, which deals with application and annual license
fees, because Paducah had failed to justify the high cost of the fees. The
City did not cross-appeal the District Court’s decision on these issues.
notarized acknowledgments along with license applications.
See Ord. §§ 11-6(e)(13), 11-9(a)-(d).4 The District Court
declined to enjoin the remaining operational and licensing
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
freedom of expression.
II.
In deciding whether to grant a preliminary injunction, a
district court must consider and balance four factors: (1)
whether the plaintiff has established a substantial likelihood
or probability of success on the merits; (2) whether there is a
threat of irreparable harm to the plaintiff; (3) whether
issuance of the injunction would cause substantial harm to
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
a preliminary injunction for an abuse of discretion. Id. “‘The
district court’s determination will be disturbed only if the
district court relied upon clearly erroneous findings of fact,
improperly applied the governing law, or used an erroneous
legal standard.’” Id. (quoting Blue Cross & Blue Shield
Mutual of Ohio v. Blue Cross and Blue Shield Ass’n, 110 F.3d
318, 322 (6th Cir. 1997)). In cases involving the First
Amendment, the crucial inquiry is usually whether the
plaintiff has demonstrated a likelihood of success on the
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
19
_________________
DISSENT
_________________
MERRITT, Circuit Judge, dissenting. This appeal is a First
Amendment facial challenge to Paducah’s ordinance
regulating the issuance of licenses for sexually-oriented
businesses, including nude dancing night clubs like plaintiff’s.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) is
controlling. In that case, the Supreme Court set out two
requirements for such licensing schemes: The scheme must
provide for definite and specific time limits within which a
license is to be granted or denied, and an avenue for prompt
judicial review must be established. The Paducah ordinance
satisfies both requirements.
* * *
The ordinance itself is clear enough on its face. Section 11-
79(a) requires an “immediate” investigation “upon receipt of
an application,” and “the City shall approve or deny the
issuance of a license to an applicant within ten (10) business
days.” The ordinance on its face requires Paducah’s various
administrative investigations and its final decision to take
place “within ten (10) business days.” So I do not see any
problem on the issue of delay. Even if there were some
ambiguity, the City has conceded that it must finish its work
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.
In addition, the Court’s opinion proceeds under the
incorrect assumption that challenging this city ordinance on
its face is the appropriate course of action under the
circumstances. It is true that our First Amendment case law
has long allowed facial challenges to regulations implicating
First Amendment rights, even in situations where facial
challenges would otherwise be deemed inappropriate. As the

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18 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
Paducah’s ordinance lacks such an assurance, it is
unconstitutional.
IV.
We hold that the City’s licensing scheme, on its face,
violates the First Amendment because it fails to provide that
the City will make a licensing decision within a brief
specified time period, that the status quo will be maintained
during this period and during judicial review, and that a
prompt judicial determination will be available. Accordingly,
we conclude that the District Court erred in denying the
plaintiff’s request to preliminarily enjoin the licensing
scheme, and we REVERSE and VACATE the District
Court’s order in this regard. We also REMAND the case for
a determination of whether the licensing scheme is severable
from the remainder of the ordinance, and for further
proceedings consistent with this opinion.
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
7
5Paducah 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
merits. Id. This is so because, as in this case, the issues of
the public interest and harm to the respective parties largely
depend on the constitutionality of the statute. Id.
III.
The sole issue raised on appeal is whether Paducah’s
licensing scheme, on its face, contains adequate procedural
safeguards as required by the First Amendment. We conclude
that it does not.
As an initial matter, we note that Nightclubs has standing
to bring a facial attack against the City’s licensing scheme.
“In the area of freedom of expression it is well established
that one has standing to challenge a statute on the ground that
it delegates overly broad licensing discretion to an
administrative office, whether or not his conduct could be
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

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8 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
activity “within the outer perimeters of the First Amendment”).
Nonetheless, the dissent posits that a facial challenge is not “the
appropriate course of action” in this case because, in effect, the City’s
attorney promised at oral argument that the City would apply the
ordinance in a constitutional manner. However, there is no evidence in
the record to support the limiting construction that the dissent is so eager
to read into the ordinance.
A “prior restraint” exists when speech is conditioned upon
the prior approval of public officials. See, e.g., Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975) (denial
of use of public forum without procedural safeguards is
unconstitutional prior restraint). Although prior restraints
“are not unconstitutional per se,” they come to court bearing
a heavy presumption against their validity. Id. at 558
(citations omitted). Prior restraints are presumptively invalid
because they typically involve “two evils that will not be
tolerated”: (1) the risk of censorship associated with the
vesting of unbridled discretion in government officials; and
(2) “the risk of indefinitely suppressing permissible speech”
when a licensing law fails to provide for the prompt issuance
of a license. FW/PBS, 493 U.S. at 225-27.
In Freedman, the Supreme Court invalidated a Maryland
film censorship statute under the First Amendment because
the statute lacked necessary procedural safeguards.
Freedman, 380 U.S. at 59-60. The Court held that three
procedural safeguards are required to avoid constitutional
infirmity. Id. at 58-59. First, the decision whether to issue a
license must be made within a “specified brief period,” and,
if judicial review is sought, the status quo must be preserved
pending “a final judicial determination on the merits.” Id. at
59. Second, the scheme “must also assure a prompt final
judicial decision, to minimize the deterrent effect of an
interim and possibly erroneous denial of a license.” Id.
Third, a censorship scheme must place the burden of
instituting judicial proceedings and proving that expression is
unprotected on the censor rather than the exhibitor. Id. at 58.
The holding of Freedman has been reaffirmed and applied in
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
17
11It is worth noting that cities have other ways to regulate the
secondary effects of sexually-oriented businesses besides imposing
licensing schemes upon them. The Paducah ordinance itself includes a
number of substantive regulations, such as a requirement that performers
remain six feet away from patrons. Zoning requirements are another
common way of regulating sexually-oriented businesses.
rendered affirming a denial of a special permit”). For
example, an ordinance could provide that a license shall issue
if a reviewing court fails to reach a decision within a
reasonably brief period of time. Similarly, a city could also
issue provisional licenses to those businesses and employees
who choose to seek judicial review of license denials. As
discussed previously, the Paducah ordinance fails to even
maintain the status quo, let alone consider the practicalities
involved with the necessity of prompt judicial review.
There are other measures that a city may institute to help
ensure that judicial review will be expeditious. An ordinance
may provide that an administrative transcript must be
submitted to a court within a brief, specified period of time.
Cities may also petition their state legislatures to pass laws
that would obligate state courts to resolve municipal
administrative appeals within a reasonably short period of
time. While these measures may seem burdensome on first
blush, they are reasonable in light of the great importance this
nation attaches to the freedom of expression.11 It is precisely
because of this importance that prior restraints upon speech
are strongly disfavored and presumptively invalid in the first
place. As courts long have recognized, the procedural
safeguards outlined in Freedman, FW/PBS, and their progeny
are necessary to prevent licensing-scheme prior restraints
from being used as instruments for the suppression of
expression.
In sum, a system of prior restraint that fails to ensure a
reasonably prompt decision by a judicial officer cannot be
squared with the First Amendment. See Baby Tam, 154 F.3d
at 1101-02; East Brooks Books, 48 F.3d at 225. Because

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16 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
10Only a state legislature has the power to pass legislation requiring
state courts to resolve certain types of cases within a particular period of
time. For example, legislatures have mandated statutorily that, to ensure
one’s right to a speedy trial, courts must conduct criminal trials within a
certain amount of time. See, e.g., K.R.S. § 421.510 (when defendant is
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
court must try prisoner facing indictment on additional charges within 180
days of prisoner’s request); Ky. RCr. 9.02 (trials of all criminal
defendants in Kentucky shall be held as promptly as possible).
The phrase ‘judicial review’ compels this conclusion.
The phrase necessarily has two elements--(1)
consideration of a dispute by a judicial officer, and (2) a
decision. Without consideration, there is no review;
without a decision, the most exhaustive review is
worthless. In baseball terms it would be like throwing a
pitch and not getting a call. As legendary major league
umpire Bill Klem once said to an inquisitive catcher: ‘It
ain’t nothin’ till I call it.’ This is also true of judicial
review. Until the judicial officer makes the call, it ain’t
nothin’.
Baby Tam, 154 F.3d at 1101-02.
Quite obviously, a municipality has no authority to control
the period of time in which a state court will adjudicate a
matter.10 Indeed, a city does not even possess the authority to
create a mere “avenue” for prompt judicial review; the
availability of judicial review is, in effect, dependent upon
state law. We recognize that, as a practical matter, the
requirement of prompt judicial review means that a city
seeking to impose a licensing scheme must take certain steps
to avoid constitutional infirmities. Specifically, a city may
very well have to go beyond merely maintaining the status
quo and actually permit the communication of protected
expression until a judicial decision is rendered on a matter.
See 11126 Baltimore, 58 F.3d at 1001 n.18 (county could
entirely avoid constitutional problem “by permitting adult
bookstores to operate until a judicial determination is
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
9
a long line of prior restraint cases. See, e.g., Riley v. National
Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 802 (1988)
(invalidating state licensing requirement for fundraisers that
permitted indefinite delays); Southeastern Promotions, 420
U.S. at 560 (reaffirming Freedman requirements and striking
down system regulating use of public forum); United States
v. Thirty-Seven Photographs, 402 U.S. 363, 374 (1971)
(applying Freedman requirements to forfeiture proceedings
for obscene materials).
In FW/PBS, the Supreme Court applied Freedman to a
Dallas, Texas ordinance similar to the Paducah ordinance at
issue here. The Dallas ordinance required sexually oriented
businesses to pass municipal inspections in order to obtain
mandatory licenses. FW/PBS, 493 U.S. at 227. In a plurality
opinion, Justice O’Connor, joined by Justices Stevens and
Kennedy, held that two of the three Freedman safeguards “are
essential” to prevent a licensing scheme from causing undue
delay in the issuance of a license: “the licensor must make the
decision whether to issue the license within a specified and
reasonable time period during which the status quo is
maintained, and there must be the possibility of prompt
judicial review in the event that the license is erroneously
denied.” Id. at 228. The plurality concluded that the third
Freedman requirement--that the censor bear the burden of
going to court and proving the unprotected nature of the
speech--is inapplicable when a system of prior restraint does
not require a public official to pass judgment on the content
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
outlined in Freedman must be applied to any system of prior
restraint. Id. at 239 (Brennan, J., concurring).
Although the status of the third Freedman requirement
remains unclear in the licensing context, this Circuit has
previously noted that, under FW/PBS, at least the first two
Freedman safeguards are essential for a licensing scheme to
comport with the First Amendment. See East Brooks Books,

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10 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
6At oral argument, defendants’ counsel “conceded” that the
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
of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988)
(ordinance vesting unbridled discretion in city official is unconstitutional
on its face). First Amendment rights would rest on a very thin reed
indeed if the promises of a city attorney at oral argument were alone
sufficient to authoritatively limit the meaning of an ordinance. The record
in this case is devoid of any evidence that a state court has construed the
Paducah ordinance or that “a well-understood and uniformly applied
practice has developed that has virtually the force of a judicial
48 F.3d at 224 (invalidating Memphis, Tennessee sexually
oriented business ordinance that failed to ensure prompt
judicial review). Thus, a licensing scheme must remove
standardless discretion from government officials and contain
two procedural safeguards: (1) the decision whether to issue
a license must be made within a specified brief period, and
the status quo must be maintained during that period and
during judicial review, and (2) there must be a “guarantee of
prompt judicial review.” Id. at 225.
Nightclubs argues that Paducah’s ordinance lacks both of
these mandatory safeguards. We agree. First, on its face, the
ordinance fails to ensure that the City will decide whether to
issue a license within a brief specified time period during
which the status quo is maintained. Although the ordinance
states that Paducah will approve or deny an application within
ten days, the ordinance also states that no license will issue
unless the City executes, and the premises passes, a variety of
building inspections. See Ord. § 11-7(a). No specific time
limits for completion of these inspections are placed on the
“appropriate City departments and agencies.” Id. Further, the
ordinance does not indicate that a license shall issue if any of
the City departments fails to complete a mandatory inspection
within a timely period.6 In this regard, the Paducah ordinance
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
15
9Even if Justice O’Connor’s plurality opinion could be read as
reducing the prompt judicial review requirement, it was joined by only
two other justices, and, therefore, could not have overruled Freedman.
Further, there is no doubt that in FW/PBS, Justice Brennan, along with the
two justices joining his concurring opinion, unequivocally maintained that
all three Freedman requirements should apply, including the requirement
of “a prompt judicial determination.” FW/PBS, 493 U.S. at 239
(Brennan, J., concurring) (emphasis added).
Freedman’s requirement of “a prompt final judicial decision.”
Freedman, 380 U.S. at 59. See Baby Tam, 154 F.3d at 1102
(“plurality took issue only with Freedman’s requirement that
the censor bear the cost of going to court obtain judicial
review; otherwise, FW/PBS offered nothing different from
Freedman’s concept of what ‘judicial review’ meant”); 11126
Baltimore, 58 F.3d at 1000 (“Justice O’Connor’s decision in
FW/PBS cannot properly be read to relax the Freedman
prompt judicial review requirement”). Justice O’Connor
described the first two Freedman requirements as “essential”;
she gave no indication that she was modifying the second
requirement of prompt judicial review. See FW/PBS, 493
U.S. at 228-29. Although she spoke of “the possibility of”
and “an avenue for” prompt judicial review, see id., Justice
O’Connor in no way altered what “judicial review” clearly
means under Freedman and its progeny: “a final judicial
determination on the merits.”9 Freedman, 380 U.S. at 59.
Indeed, if mere access to a judicial forum were sufficient,
then the second Freedman safeguard would be rendered
virtually meaningless. See Baby Tam, 154 F.3d at 1101.
Justice O’Connor observed in FW/PBS that “the core policy
underlying Freedman is that the license for a First
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
process will be expeditious. FW/PBS, 493 U.S. at 228. As
the Ninth Circuit pointed out in Baby Tam,

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

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12 Nightclubs, Inc. v. City
of Paducah, et al.
No. 98-6581
operation immediately. The previous license does not remain
in effect while an appeal proceeds before the Board or, later,
while an action is pending in court. See Ord. §§ 11-10, 11-15.
In addition, if the City suspends or revokes a license for one
of the reasons provided in § 11-16, that decision will be
stayed while an appeal proceeds before the Board, but it will
not be stayed pending judicial review. See Ord. § 11-17(b),
11-17(f). Accordingly, the ordinance fails to maintain the
status quo pending review as the First Amendment requires.
See Freedman, 380 U.S. at 59 (“[a]ny restraint imposed in
advance of a final judicial determination on the merits must
. . . be limited to preservation of the status quo for the shortest
fixed period compatible with sound judicial resolution”).
The second Freedman safeguard--the guarantee of prompt
judicial review--is also lacking in this case. The ordinance
provides that an applicant, or licensee whose license has been
suspended or revoked, may seek a review of the Board’s
decision “in any court of competent jurisdiction.” Ord. §§ 11-
15(e), 11-17(f). Although Kentucky law does not provide for
judicial appeals from administrative decisions, an aggrieved
applicant or licensee may file “an original action” in
Kentucky court. See K.R.S. § 23A.010(4) (review of
administrative decision constitutes not appeal, but original
action). The case then proceeds according to standard court
rules, with the state court conducting a “limited trial de novo,
including review of the record of the board and other
evidence.” City of Covington v. Tranter, 673 S.W.2d 744,
748 (Ky. Ct. App. 1984). The person seeking review of the
administrative decision generally bears the burden of
furnishing the transcript to the state court. Id. Kentucky law
does not in any way limit the time for furnishing transcripts,
conducting a court hearing, or rendering a judicial decision.
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
Brooks Books, 48 F.3d at 225. In that case, Tennessee law
expressly authorized judicial review of administrative
No. 98-6581 Nightclubs, Inc. v. City
of Paducah, et al.
13
7The District Court not only assumed that the state court would
speedily issue injunctive relief, but also assumed that a judicial appeal
would be brought on First Amendment grounds. There could, of course,
be non-constitutional reasons for challenging the denial of a license, such
decisions, but no time limits were placed on the city’s
obligation to provide an administrative transcript. Id.
Moreover, although the appeal would have had “precedence
over other litigation,” there was no assurance that the
Tennessee court would have resolved the appeal in a timely
manner. Id. We noted that under Supreme Court case law,
judicial review processes with “potential delays of over five
months are impermissible.” Id. (discussing Southeastern
Promotions, 420 U.S. at 562, and Thirty-Seven Photographs,
402 U.S. at 373-74). Kentucky law fails to guarantee judicial
review of Paducah’s licensing decisions within any particular
period of time, let alone within five months.
The defendants argue, and the District Court concluded,
that the requirement of prompt judicial review is satisfied
because an aggrieved applicant or licensee may seek
preliminary injunctive relief soon after filing an original
action in Kentucky court. This argument both misinterprets
a long line of legal precedent in the area of prior restraints and
minimizes the importance of the First Amendment freedoms
at stake. As previously discussed, Freedman, FW/PBS, and
East Brooks Books require an assurance of prompt judicial
review; a theoretical possibility of expeditious judicial review
is not constitutionally sufficient. A guarantee of prompt
judicial review is necessary “because undue delay results in
the unconstitutional suppression of protected speech.”
FW/PBS, 493 U.S. at 228. If an applicant challenges the
Board’s decision to uphold the denial of a license, there is
nothing in Kentucky law requiring the state court to swiftly
schedule a hearing on a motion for injunctive relief. While
we trust state courts to exercise due diligence, we cannot be
sure that a state judge, who often is elected and toiling under
a busy docket, will conduct a hearing and render a decision in
a prompt manner.7

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