Supreme Court of the United States
CITY OF DALLAS
Decided January 8, 1990
Justice O’Connor, For the Court
|Topic: First Amendment*||Court vote: 6–3|
Click any Justice for detailJoining O'Connor opinion: Justice KENNEDY
|Joining opinion in part: Chief Justice REHNQUIST Justice SCALIA Justice STEVENS Justice WHITE|
|Citation: 493 U.S. 215||Docket: 87–2012, 87-2051 and 88-49||Audio: Listen to this case's oral arguments at Oyez|
* As categorized by the Washington University Law Supreme Court Database
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Justice O'CONNOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III, and IV, and an opinion with respect to Part II, in which Justice STEVENS and Justice KENNEDY join.
These cases call upon us to decide whether a licensing scheme in a comprehensive city ordinance regulating sexually oriented businesses is a prior restraint that fails to provide adequate procedural safeguards as required by Freedman v. Maryland, 380 U. S. 51 (1965). We must also decide whether any petitioner has standing to address the ordinance's civil disability provisions, whether the city has sufficiently justified its requirement that motels renting rooms for less than 10 hours be covered by the ordinance, and whether the ordinance impermissibly infringes on the right to freedom of association. As this litigation comes to us, no issue is presented with respect to whether the books, videos, materials, or entertainment available through sexually oriented businesses are obscene pornographic materials.
On June 18, 1986, the city council of the city of Dallas unanimously adopted an ordinance regulating sexually oriented businesses, which was aimed at eradicating the secondary effects of crime and urban blight. The ordinance defines a "sexually oriented business," as
an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
Dallas City Code, ch. 41A, Sexually Oriented Businesses § 41A-2(19) (1986). The ordinance regulates sexually oriented businesses through a scheme incorporating zoning, licensing, and inspections. The ordinance also includes a civil disability provision, which prohibits individuals convicted of certain crimes from obtaining a license to operate a sexually oriented business for a specified period of years.
Three separate suits were filed challenging the ordinance on numerous grounds, seeking preliminary and permanent injunctive relief as well as declaratory relief. Suits were brought by the following groups of individuals and businesses: those involved in selling, exhibiting, or distributing publications, video or motion picture films; adult cabarets, or establishments providing live nude dancing or films, motion pictures, video cassettes, slides or other photographic reproductions depicting sexual activities and anatomy specified in the ordinance; and adult motel owners. Following expedited discovery, petitioners' constitutional claims were resolved through cross-motions for summary judgment. After a hearing, the District Court upheld the bulk of the ordinance, striking only four subsections. See Dumas v. Dallas, 648 F.Supp. 1061 (ND Tex.1986). The District Court struck two subsections, §§ 41A5(a)(8) and 41A-5(c), on the ground that they vested overbroad discretion in the chief of police, contrary to our holding in Shuttlesworth v. Birmingham, 394 U. S. 147, 394 U. S. 150 -151 (1969). See 648 F.Supp. at 1072-1073. The District Court also struck the provision that imposed a civil disability merely on the basis of an indictment or information, reasoning that there were less restrictive alternatives to achieve the city's goals. See id. at 1075 (citing United States v. O'Brien, 391 U. S. 367 (1968)). Finally, the District Court held that five enumerated crimes from the list of those creating civil disability were unconstitutional because they were not sufficiently related to the purpose of the ordinance. See 648 F.Supp. at 1074 (striking bribery, robbery, kidnaping, organized criminal activity, and violations of controlled substances acts). The city of Dallas subsequently amended the ordinance in conformity with the District Court's judgment.
The Court of Appeals for the Fifth Circuit affirmed. FW/PBS, Inc. v. Dallas, 837 F.2d 1298 (CA5 1988). Viewing the ordinance as a content-neutral time, place, and manner regulation under Renton v. Playtime Theatres Inc., 475 U. S. 41 (1986), the Court of Appeals upheld the ordinance against the petitioners' facial attack on the ground that it is " designed to serve a substantial government interest'" and allowed for "`reasonable alternative avenues of communication.'" 837 F.2d at 1303 (quoting Renton, supra, at 475 U. S. 47 ). The Court of Appeals further concluded that the licensing scheme's failure to provide the procedural safeguards set forth in Freedman v. Maryland, supra, withstood constitutional challenge, because such procedures are less important when regulating "the conduct of an ongoing commercial enterprise." 837 F.2d at 1303.
Additionally, the Court of Appeals upheld the provision of the ordinance providing that motel owners renting rooms for less than 10 hours were "adult motel owners" and, as such, were required to obtain a license under the ordinance. See §§ 41A2(4); 41A-18. The motel owners attacked the provision on the ground that the city had made no finding that adult motels engendered the evils the city was attempting to redress. The Court of Appeals concluded that the 10-hour limitation was based on the reasonable supposition that short rental periods facilitate prostitution, one of the secondary effects the city was attempting to remedy. See 837 F.2d at 1304.
Finally, the Court of Appeals upheld the civil disability provisions, as modified by the District Court, on the ground that the relationship between "the offense and the evil to be regulated is direct and substantial." Id. at 1305.
We granted petitioners' application for a stay of the mandate except for the holding that the provisions of the ordinance regulating the location of sexually oriented businesses do not violate the Federal Constitution, 485 U.S. 1042 (1988), and granted certiorari, 489 U.S. 1051 (1989). We now reverse in part and affirm in part.
We granted certiorari on the issue whether the licensing scheme is an unconstitutional prior restraint that fails to provide adequate procedural safeguards as required by Freedman v. Maryland, 380 U. S. 51 (1965). Petitioners involved in the adult entertainment industry and adult cabarets argue that the licensing scheme fails to set a time limit within which the licensing authority must issue a license and, therefore, creates the likelihood of arbitrary denials and the concomitant suppression of speech. Because we conclude that the city's licensing scheme lacks adequate procedural safeguards, we do not reach the issue decided by the Court of Appeals whether the ordinance is properly viewed as a content-neutral time, place, and manner restriction aimed at secondary effects arising out of the sexually oriented businesses. Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 420 U. S. 562 (1975).
We note at the outset that petitioners raise a facial challenge to the licensing scheme. Although 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 decisionmaker and where the regulation is challenged as overbroad. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 798, and n. 15 (1984). In Freedman, we held that the failure to place limitations on the time within which a censorship board decisionmaker must make a determination of obscenity is a species of unbridled discretion. See Freedman, supra, 380 U.S. at 380 U. S. 56 -57 (failure to confine time within which censor must make decision "contains the same vice as a statute delegating excessive administrative discretion"). Thus, where a scheme creates a "[r]isk of delay," id. at 380 U. S. 55, such that "every application of the statute create[s] an impermissible risk of suppression of ideas," Taxpayers for Vincent, supra, 466 U.S. at 466 U. S. 798, n. 15, we have permitted parties to bring facial challenges.
The businesses regulated by the city's licensing scheme include adult arcades (defined as motion pictures shown to five or fewer individuals at a time, see § 41A-2(1)), adult bookstores or adult video stores, adult cabarets, adult motels, adult motion picture theaters, adult theaters, escort agencies, nude model studios, and sexual encounter centers, §§ 41A-2(19) and 41A-3. Although the ordinance applies to some businesses that apparently are not protected by the First Amendment, e.g., escort agencies and sexual encounter centers, it largely targets businesses purveying sexually explicit speech which the city concedes for purposes of these cases are protected by the First Amendment. Cf. Smith v. California, 361 U. S. 147, 361 U. S. 150 (1959) (bookstores); Southeastern Promotions, Ltd. v. Conrad, supra, (live theater performances); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976) (motion picture theaters); Schad v. Mount Ephraim, 452 U. S. 61 (1981) (nude dancing). As Justice SCALIA acknowledges, post at 493 U. S. 262, the city does not argue that the businesses targeted are engaged in purveying obscenity which is unprotected by the First Amendment. See Brief for Respondents 19, 20, and n. 8 ("[T]he city is not arguing that the ordinance does not raise First Amendment concerns.... [T]he right to sell this material is a constitutionally protected right... "). See also Miller v. California, 413 U. S. 15, 413 U. S. 23 -24 (1973). Nor does the city rely upon Ginzburg v. United States, 383 U. S. 463 (1966), or contend that those businesses governed by the ordinance are engaged in pandering. It is this Court's practice to decline to review those issues neither pressed nor passed upon below. See Youakim v. Miller, 425 U. S. 231, 425 U. S. 234 (1976) (per curiam).
The city asserted at oral argument that it requires every business -without regard to whether it engages in First Amendment-protected speech -to obtain a certificate of occupancy when it moves into a new location or the use of the structure changes. Tr. of Oral Arg. 49; see also App. 42, Dallas City Code § 51-1.104 (1988) (Certificate of Occupancy required where there is new construction or before occupancy if there is a change in use). Under the challenged ordinance, however, inspections are required for sexually oriented businesses whether or not the business has moved into a new structure and whether or not the use of the structure has changed. Therefore, even assuming the correctness of the city's representation of its "general" inspection scheme, the scheme involved here is more onerous with respect to sexually oriented businesses than with respect to the vast majority of other businesses. For example, inspections are required whenever ownership of a sexually oriented business changes, and when the business applies for the annual renewal of its permit. We, therefore, hold, as a threshold matter, that petitioners may raise a facial challenge to the licensing scheme, and that as the suit comes to us, the businesses challenging the scheme have a valid First Amendment interest.
[p]rior restraints are not unconstitutional per se... [a]ny system of prior restraint... comes to this Court bearing a heavy presumption against its constitutional validity.
Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at 420 U. S. 558. See, e.g., Lovell v. Griffin, 303 U. S. 444, 303 U. S. 451 -452 (1938); Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 306 -307 (1940); Cox v. New Hampshire, 312 U. S. 569, 574-575 (1941); Shuttlesworth v. Birmingham, 394 U.S. at 394 U. S. 150 -151. Our cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First, a scheme that places "unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship." Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, 486 U. S. 757 (1988). See Saia v. New York, 334 U. S. 558 (1948); Niemotko v. Maryland, 340 U. S. 268 (1951); Kunz v. New York, 340 U. S. 290 (1951); Staub v. City of Baxley, 355 U. S. 313 (1958); Freedman v. Maryland, 380 U. S. 51 (1965); Cox v. Louisiana, 379 U. S. 536 (1965); Shuttlesworth v. Birmingham, supra; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947 (1984).
'It is settled by a long line of recent decisions of this Court that an ordinance which... makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official -as by requiring a permit or license which may be granted or withheld in the discretion of such official -is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.'
Shuttlesworth, supra, 394 U.S. at 394 U. S. 151 (quoting Staub, supra, 355 U.S. at 355 U. S. 322 ).
Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible. Freedman, supra, 380 U.S. at 59; Vance v. Universal Amusement Co., 445 U. S. 308, 445 U. S. 316 (1980) (striking statute on ground that it restrained speech for an "indefinite duration"). In Freedman, we addressed a motion picture censorship system that failed to provide for adequate procedural safeguards to ensure against unlimited suppression of constitutionally protected speech. 380 U.S. at 380 U. S. 57. Like a censorship system, a licensing scheme creates the possibility that constitutionally protected speech will be suppressed where there are inadequate procedural safeguards to ensure prompt issuance of the license. In Riley v. National Federation of Blind of N.C., Inc., 487 U. S. 781 (1988), this Court held that a licensing scheme failing to provide for definite limitations on the time within which the licensor must issue the license was constitutionally unsound, because the "delay compel[led] the speaker's silence." Id. at 487 U. S. 802. The failure to confine the time within which the licensor must make a decision "contains the same vice as a statute delegating excessive administrative discretion," Freedman, supra, 380 U.S. at 380 U. S. 56 -57. Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. A scheme that fails to set reasonable time limits on the decisionmaker creates the risk of indefinitely suppressing permissible speech.
Although the ordinance states that the
chief of police shall approve the issuance of a license by the assessor and collector of taxes to an applicant within 30 days after receipt of an application,
the license may not issue if the
premises to be used for the sexually oriented business have not been approved by the health department, fire department, and the building official as being in compliance with applicable laws and ordinances.
§ 41A-5(a)(6). Moreover, the ordinance does not set a time limit within which the inspections must occur. The ordinance provides no means by which an applicant may ensure that the business is inspected within the 30-day time period within which the license is purportedly to be issued if approved. The city asserted at oral argument that when applicants apply for licenses, they are given the telephone numbers of the various inspection agencies so that they may contact them. Tr. of Oral Arg. 48. That measure, obviously, does not place any limits on the time within which the city will inspect the business and thereby make the business eligible for the sexually oriented business license. Thus, the city's regulatory scheme allows indefinite postponement of the issuance of a license.
In Freedman, we determined that the following three procedural safeguards were necessary to ensure expeditious decisionmaking by the motion picture censorship board: (1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech, and must bear the burden of proof once in court. Freedman, supra, at 380 U. S. 58 -60. Although we struck the licensing provision in Riley v. National Federation of Blind of N.C., Inc., supra, on the ground that it did not provide adequate procedural safeguards, we did not address the proper scope of procedural safeguards with respect to a licensing scheme. Because the licensing scheme at issue in this case does not present the grave "dangers of a censorship system," Freedman, supra, at 380 U. S. 58, we conclude that the full procedural protections set forth in Freedman are not required.
The core policy underlying Freedman is that the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech. Thus, the first two safeguards are essential: 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. See Freedman, supra, at 380 U. S. 51. See also Shuttlesworth, 394 U.S. at 394 U. S. 155, n. 4 (content-neutral time, place, and manner regulation must provide for "expeditious judicial review"); National Socialist Party of America v. Skokie, 432 U. S. 43 (1977).
The Court in Freedman also required the censor to go to court and to bear the burden in court of justifying the denial.
Without these safeguards, it may prove too burdensome to seek review of the censor's determination. Particularly in the case of motion pictures, it may take very little to deter exhibition in a given locality. The exhibitor's stake in any one picture may be insufficient to warrant a protracted and onerous course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film in most of the rest of the country....
380 U.S. at 380 U. S. 59. Moreover, a censorship system creates special concerns for the protection of speech, because "the risks of freewheeling censorship are formidable." Southeastern Promotions, 420 U.S. at 420 U. S. 559. As discussed supra, the Dallas scheme does not provide for an effective limitation on the time within which the licensor's decision must be made. It also fails to provide an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial. We therefore hold that the failure to provide these essential safeguards renders the ordinance's licensing requirement unconstitutional insofar as it is enforced against those businesses engaged in First Amendment activity, as determined by the court on remand.
The Court also required in Freedman that the censor bear the burden of going to court in order to suppress the speech and the burden of proof once in court. The licensing scheme we examine today is significantly different from the censorship scheme examined in Freedman. In Freedman, the censor engaged in direct censorship of particular expressive material. Under our First Amendment jurisprudence, such regulation of speech is presumptively invalid and, therefore, the censor in Freedman was required to carry the burden of going to court if the speech was to be suppressed and of justifying its decision once in court. Under the Dallas ordinance, the city does not exercise discretion by passing judgment on the content of any protected speech. Rather, the city reviews the general qualifications of each license applicant, a ministerial action that is not presumptively invalid. The Court in Freedman also placed the burdens on the censor, because otherwise the motion picture distributor was likely to be deterred from challenging the decision to suppress the speech and, therefore, the censor's decision to suppress was tantamount to complete suppression of the speech. The license applicants under the Dallas scheme have much more at stake than did the motion picture distributor considered in Freedman, where only one film was censored. Because the license is the key to the applicant's obtaining and maintaining a business, there is every incentive for the applicant to pursue a license denial through court. Because of these differences, we conclude that the First Amendment does not require that the city bear the burden of going to court to effect the denial of a license application, or that it bear the burden of proof once in court. Limitation on the time within which the licensor must issue the license as well as the availability of prompt judicial review satisfy the "principle that the freedoms of expression must be ringed about with adequate bulwarks." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 66 (1963).
Finally, we note that the ordinance summarily states that
[t]he terms and provisions of this ordinance are severable, and are governed by Section 1-4 of CHAPTER 1 of the Dallas City Code, as amended.
§ 41-23(5). We therefore remand to the Court of Appeals for further determination whether and to what extent the licensing scheme is severable. Cf. Lakewood v. Plain Dealer Publishing Co., 486 U.S. at 486 U. S. 772 (remanding for determination of severability).
We do not reach the merits of the adult entertainment and adult cabaret petitioners' challenges to the civil disability provision, § 41A-5(a)(10), and the provision disabling individuals residing with those whose licenses have been denied or revoked, § 41A-5(a)(5), because petitioners have failed to show they have standing to challenge them. See Brief for Petitioners in No. 87-2051, pp. 22-40, 44; Brief for Petitioners in No. 87-2012, pp. 12-20. Neither the District Court nor the Court of Appeals determined whether petitioners had standing to challenge any particular provision of the ordinance. Although neither party raises the issue here, we are required to address the issue even if the courts below have not passed on it, see Jenkins v. McKeithen, 395 U. S. 411, 395 U. S. 421 (1969), and even if the parties fail to raise the issue before us. The federal courts are under an independent obligation to examine their own jurisdiction, and standing "is perhaps the most important of [the jurisdictional] doctrines." Allen v. Wright, 468 U. S. 737, 468 U. S. 750 (1984).
[E]very federal appellate court has a special obligation to 'satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U. S. 237, 293 U. S. 244 (1934). See Juidice v. Vail, 430 U. S. 327, 430 U. S. 331 -332 (1977) (standing). And if the record discloses that the lower court was without jurisdiction, this court will notice the defect, although the parties make no contention concerning it.
Bender v. Williamsport Area School Dist., 475 U. S. 534, 475 U. S. 541 (1986).
It is a long-settled principle that standing cannot be "inferred argumentatively from averments in the pleadings," Grace v. American Central Ins. Co., 109 U. S. 278, 109 U. S. 284 (1883), but rather "must affirmatively appear in the record." Mansfield C. & L.M.R. Co. v. Swan, 111 U. S. 379, 111 U. S. 382 (1884). See King Bridge Co. v. Otoe County, 120 U. S. 225, 120 U. S. 226 (1887) (facts supporting Article III jurisdiction must "appea[r] affirmatively from the record"). And it is the burden of the "party who seeks the exercise of jurisdiction in his favor," McNutt v. General Motors Acceptance Corp., 298 U. S. 178, 298 U. S. 189 (1936), "clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Warth v. Seldin, 422 U. S. 490, 422 U. S. 518 (1975). Thus, the petitioners in this case must "allege... facts essential to show jurisdiction. If [they] fai[l] to make the necessary allegations, [they have] no standing." McNutt, supra, 298 U.S. at 298 U. S. 189.
The ordinance challenged here prohibits the issuance of a license to an applicant who has resided with an individual whose license application has been denied or revoked within the preceding 12 months. [ Footnote 1 ] The ordinance also has a civil disability provision, which disables those who have been convicted of certain enumerated crimes as well as those whose spouses have been convicted of the same enumerated crimes. This civil disability lasts for two years in the case of misdemeanor convictions and five years in the case of conviction of a felony or of more than two misdemeanors within a 24-month period. [ Footnote 2 ] Thus, under the amended ordinance, once the disability period has elapsed, the applicant may not be denied a license on the ground of a former conviction.
Examination of the record here reveals that no party has standing to challenge the provision involving those residing with individuals whose licenses were denied or revoked. Nor does any party have standing to challenge the civil disability provision disabling applicants who were either convicted of the specified offenses or whose spouses were convicted.
First, the record does not reveal that any party before us was living with an individual whose license application was denied or whose license was revoked. Therefore, no party has standing with respect to § 41A-5(a)(5). Second, § 41A-5(a)(10) applies to applicants whose spouses have been convicted of any of the enumerated crimes, but the record reveals only one individual who could be disabled under this provision. An individual, who had been convicted under the Texas Controlled Substances Act, asserts that his wife was interested in opening a sexually oriented business. But the wife, although an officer of petitioner Bi-Ti Enterprises, Inc., is not an applicant for a license or a party to this action. See 12 Record, Evert Affidavit 3-6. Cf. Bender, 475 U.S. at 475 U. S. 548, and n. 9.
Even if the wife did have standing, her claim would now be moot. Her husband's convictions under the Texas Controlled Substances Act would not now disable her from obtaining a license to operate a sexually oriented business, because the city council, following the District Court's decision, deleted the provision disabling those with convictions under the Texas Controlled Substances Act or Dangerous Drugs Act. App.H. to Pet. for Cert. 107. See Hall v. Beals, 396 U. S. 45, 396 U. S. 48 (1969).
Finally, the record does not reveal any party who has standing to challenge the provision disabling an applicant who was convicted of any of the enumerated crimes. To establish standing to challenge that provision the individual must show both (1) a conviction of one or more of the enumerated crimes, and (2) that the conviction or release from confinement occurred recently enough to disable the applicant under the ordinance. See §§ 41A5(a)(10)(A), (B). If the disability period has elapsed, the applicant is not deprived of the possibility of obtaining a license and, therefore, cannot be injured by the provision.
The only party who could plausibly claim to have standing to challenge this provision is Bill Staten, who stated in an affidavit that he had been "convicted of three misdemeanor obscenity violations within a twenty-four month period." 7 Record, Staten Affidavit 2. That clearly satisfies the first requirement. Under the ordinance, any person convicted of two or more misdemeanors "within any 24-month period," must wait five years following the last conviction or release from confinement, whichever is later, before a license may be issued. See 41A-5(a)(10)(B)(iii). But Staten failed to state when he had been convicted of the last misdemeanor or the date of release from confinement and, thus, has failed "clearly to allege facts demonstrating that he is a proper party" to challenge the civil disability provisions. No other petitioner has alleged facts to establish standing, and the District Court made no factual findings that could support standing. Accordingly, we conclude that the petitioners lack standing to challenge the provisions. See Warth, 422 U.S. at 422 U. S. 518.
At oral argument, the city's attorney responded as follows when asked whether there was standing to challenge the civil disability provisions: "I believe that there are one or two of the Petitioners that have had their licenses denied based on criminal conviction." Tr. of Oral Arg. 32. See also Foster Affidavit, 1 (affidavit filed by the city in its Response to Petitioner's Application for Recall and Stay of the Mandate stating that two licenses were revoked on the grounds of a prior conviction since the ordinance went into effect, but failing to identify the licensees). We do not rely on the city's representations at argument, as "the necessary factual predicate may not be gleaned from the briefs and arguments themselves," Bender, supra, 475 U.S. at 475 U. S. 547. And we may not rely on the city's affidavit, because it is evidence first introduced to this Court and "is not in the record of the proceedings below," Adickes v. S.H. Kress & Co., 398 U. S. 144, 398 U. S. 157, n. 16 (1970). Even if we could take into account the facts as alleged in the city's affidavit, it fails to identify the individuals whose licenses were revoked and, therefore, falls short of establishing that any petitioner before this Court has had a license revoked under the civil disability provisions.
Because we conclude that no petitioner has shown standing to challenge either the civil disability provisions or the provisions involving those who live with individuals whose licenses have been denied or revoked, we conclude that the courts below lacked jurisdiction to adjudicate petitioners' claims with respect to those provisions. We accordingly vacate the judgment of the Court of Appeals with respect to those provisions with directions to dismiss that portion of the action. See Bender, supra, 475 U.S. at 475 U. S. 549 (vacating judgment below on ground of lack of standing); McNutt, 298 U.S. at 298 U. S. 190 (same). [ Footnote 3 ]
The motel owner petitioners challenge two aspects of the ordinance's requirement that motels that rent rooms for less than 10 hours are sexually oriented businesses and are, therefore, regulated under the ordinance. See § 41A-18(a). First, they contend that the city had an insufficient factual basis on which to conclude that rental of motel rooms for less than 10 hours produced adverse impacts. Second, they contend that the ordinance violates privacy rights, especially the right to intimate association.
With respect to the first contention, the motel owners assert that the city has violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for less than 10 hours results in increased crime or other secondary effects. They contend that the council had before it only a 1977 study by the city of Los Angeles that considered cursorily the effect of adult motels on surrounding neighborhoods. See Defendant's Motion for Summary Judgment, Vol. 2, Exh. 11. The Court of Appeals thought it reasonable to believe that shorter rental time periods indicate that the motels foster prostitution and that this type of criminal activity is what the ordinance seeks to suppress. See 837 F.2d at 1304. Therefore, no more extensive studies were required than those already available. We agree with the Court of Appeals that the reasonableness of the legislative judgment, combined with the Los Angeles study, is adequate to support the city's determination that motels permitting room rentals for less than 10 hours should be included within the licensing scheme.
The motel owners also assert that the 10-hour limitation on the rental of motel rooms places an unconstitutional burden on the right to freedom of association recognized in Roberts v. United States Jaycees, 468 U. S. 609, 468 U. S. 618 (1984) ("Bill of Rights... must afford the formation and preservation of certain kinds of highly personal relationships"). The city does not challenge the motel owners' standing to raise the issue whether the associational rights of their motel patrons have been violated. There can be little question that the motel owners have "a live controversy against enforcement of the statute" and, therefore, that they have Art. III standing. Craig v. Boren, 429 U. S. 190, 429 U. S. 192 (1976). It is not clear, however, whether they have prudential, jus tertii standing to challenge the ordinance on the ground that the ordinance infringes the associational rights of their motel patrons. Id. at 429 U. S. 193. But even if the motel owners have such standing, we do not believe that limiting motel room rentals to 10 hours will have any discernible effect on the sorts of traditional personal bonds to which we referred in Roberts. Any "personal bonds" that are formed from the use of a motel room for less than 10 hours are not those that have "played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs." 468 U.S. at 468 U. S. 618 -619. We therefore reject the motel owners' challenge to the ordinance.
Finally, the motel owners challenge the regulations on the ground that they violate the constitutional right "to be let alone," Olmstead v. United States, 277 U. S. 438, 277 U. S. 478 (1928) (Brandeis, J., dissenting), and that the ordinance infringes the motel owners' commercial speech rights. Because these issues were not pressed or passed upon below, we decline to consider them. See, e.g., Rogers v. Lodge, 458 U. S. 613, 458 U. S. 628, n. 10 (1982); FTC v. Grolier Inc., 462 U. S. 19, 462 U. S. 23, n. 6 (1983).
Accordingly, the judgment below is affirmed in part, reversed in part, and vacated in part, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
[ Footnote 1 ]
Section 41-5(a)(5) provides as follows:
The chief of police shall approve the issuance of a license... unless he finds [that]... [a]n applicant is residing with a person who has been denied a license by the city to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months.
[ Footnote 2 ]
Sections 41-5(a)(10), (b), and (c), as amended, provide as follows:
The chief of police shall approve the issuance of a license... unless he finds [that]... (10) An applicant or an applicant's spouse has been convicted of a crime:
(i) any of the following offenses as described in Chapter 43 of the Texas Penal Code: (aa) prostitution; (bb) promotion of prostitution; (cc) aggravated promotion of prostitution; (dd) compelling prostitution; (ee) obscenity; (ff) sale, distribution, or display of harmful material to minor; (gg) sexual performance by a child (hh) possession of child pornography;
(ii) any of the following offenses as described in Chapter 21 of the Texas Penal Code: (aa) public lewdness; (bb) indecent exposure; (cc) indecency with a child;
(iii) sexual assault or aggravated sexual assault as described in Chapter 22 of the Texas Penal Code;
(iv) incest, solicitation of a child, or harboring a runaway child as described in Chapter 25 of the Texas Penal Code; or
(v) criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses;
(B) for which:
(i) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(ii) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
(iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
(b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse.
(c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Subsection (a)(10) may qualify for a sexually oriented business license only when the time period required by Section 41A-5(a)(10)(B) has elapsed.
[ Footnote 3 ]
Petitioners also raise a variety of other First Amendment challenges to the ordinance's licensing scheme. In light of our conclusion that the licensing requirement is unconstitutional because it lacks essential procedural safeguards and that no petitioner has standing to challenge the residency or civil disability provisions, we do not reach those questions.
Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.