In
FW/PBS, the Court made clear that
Freedman also applied to content-neutral prior restraint situations.
FW/PBS involved a broad challenge to a licensing and zoning scheme passed by the city of Dallas to regulate sexually oriented businesses. The Fifth Circuit, viewing the ordinance as a content-neutral time, place, and manner regulation, held,
inter alia, that the procedural safeguards set forth in
Freedman did not apply. The Supreme Court reversed, noting that because the ordinance lacked adequate procedural safeguards, it need not reach the question of whether the scheme was content-neutral.
See 493 U.S. at 223, 110 S.Ct. 596 (opinion of O'Connor, J.). The Court was divided over how many of the
Freedman factors applied. Justice O'Connor, in a section of her opinion for the court joined by two other Justices, stated that because the city did not “exercise discretion by passing judgment on the content of any protected speech,” the third
Freedman factor—that the censor bear the burden of going to court and the burden of proof once there—was not applicable.
Id. at 229, 110 S.Ct. 596. Justice Brennan, in a concurrence joined by Justices Marshall and Blackmun, argued that all three
Freedman factors applied.
See id. at 238–39, 110 S.Ct. 596 (Brennan, J., concurring in the judgment). Thus, six Justices held that “the first two [
Freedman ] safeguards are essential”.
Id. at 228, 110 S.Ct. 596 (opinion of O'Connor, J.).