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Texas appeals court finds adult business-licensing law constitutional

By David Hudson
First Amendment Center

The city of Houston's adult business-licensing law does not violate First Amendment free-expression rights, a Texas appeals court ruled recently.

Charles Joseph Kaczmarek, who managed the adult lounge Le Bare, challenged Houston's law requiring the operators of sexually oriented businesses to obtain a licensing permit.

In February 1997, a jury found him guilty of operating a sexually oriented business without a permit.

Kaczmarek contended that the city ordinance violated the First Amendment because it granted the chief of police "unbridled discretion" to either grant or deny an operating permit. According to Kaczmarek, this discretion enabled the chief of police to impose a prior restraint upon the expressive conduct — male exotic dancing — occurring at Le Bare.

In its 1988 decision City of Lakewood v. Plain Dealer Publishing Co., the U.S. Supreme Court wrote that there is "time-tested knowledge that in the area of free expression a licensing statute placing unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship."

The Lakewood case involved a challenge to a city ordinance granting a mayor power to issue permits allowing placement of news racks on public property.

Last week in Kaczmarek v. State, however, the Texas Court of Appeals for the 10th District ruled that the Houston licensing law passed First Amendment scrutiny, thanks to "the presence of standards limiting discretion."

The appeals court recognized that "exotic dancing does receive some amount of First Amendment protection." The court noted that the ordinance provides that the chief of police "shall" issue a permit unless the adult business falls into one of nine excepted categories, such as being located within 750 feet of a school.

The court concluded: "We hold that the use of the word 'shall,' combined with the detailed procedure for measuring distances, indicates that the Chief of Police does not, in fact, have unbridled discretion."

The court noted that another state court and a federal appeals court had upheld the city law or a former version of it from First Amendment challenges.

Keli Roper, the assistant district attorney for Harris County who defended the law, said: "The appeals court correctly ruled that the ordinance did not grant unbridled discretion to the police chief. Rather, the ordinance contained very specific language limiting when the police chief can issue and deny a permit."

Roper said this case was one in which the defendant was trying to make "any possible constitutional argument."

Calls placed to Kaczmarek's attorneys were not returned.

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