City of Lakewood v. Plain Dealer Publishing Co.
486 U.S. 750 (1988)
Rule of Law:
A licensing statute that gives a government official unbridled discretion to permit or deny expressive activity is unconstitutional on its face because it constitutes a prior restraint and risks censorship. A party subject to such a law may challenge it facially without first applying for and being denied a license.
Facts:
- Prior to 1983, the City of Lakewood's ordinances resulted in an absolute prohibition on the private placement of any structure on public property.
- Relying on this prohibition, Lakewood denied the Plain Dealer Publishing Company's request to place its coin-operated newspaper dispensing devices (newsracks) on city sidewalks.
- After its absolute ban was challenged, Lakewood adopted a new ordinance (§901.181) specifically governing newsracks.
- The new ordinance required an annual permit for newsracks, which the Mayor had the authority to grant or deny.
- If the mayor denied an application, he was required to state the reasons for the denial.
- If the mayor granted a permit, it was subject to several conditions, including approval of the newsrack's design by an Architectural Board, a $100,000 liability insurance policy, and any 'other terms and conditions deemed necessary and reasonable by the Mayor.'
- The Plain Dealer Publishing Company, believing the new ordinance was unconstitutional, elected not to apply for a permit.
Procedural Posture:
- The Plain Dealer Publishing Company sued the City of Lakewood in the U.S. District Court for the Northern District of Ohio, challenging the city's absolute ban on newsracks on public property.
- The District Court declared the absolute ban unconstitutional but delayed issuing an injunction to allow Lakewood to amend its ordinance.
- Lakewood enacted a new ordinance creating a discretionary permit system for newsracks.
- The Plain Dealer amended its complaint in the District Court to facially challenge the new ordinance.
- The District Court found the new ordinance constitutional and entered judgment in favor of the City of Lakewood.
- The Plain Dealer, as appellant, appealed to the U.S. Court of Appeals for the Sixth Circuit.
- The Court of Appeals reversed the District Court, finding the ordinance unconstitutional because it vested unbridled discretion in the mayor and imposed other unconstitutional burdens.
- The City of Lakewood, as appellant, appealed that decision to the U.S. Supreme Court.
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Issue:
Does a city ordinance that gives a mayor unfettered discretion to grant or deny a permit for placing newsracks on public property, and to impose any other terms and conditions deemed necessary, violate the First Amendment?
Opinions:
Majority - Justice Brennan
Yes, a city ordinance that vests unbridled discretion in a government official over whether to permit or deny expressive activity, such as placing newsracks, is unconstitutional on its face. The court held that when a licensing statute gives a government official substantial power to discriminate based on content or viewpoint, it can be challenged facially without the party first applying for and being denied a license. Such laws pose two significant dangers: they may intimidate parties into self-censorship to avoid permit denial, and the absence of explicit standards makes it difficult for courts to review whether a denial was a legitimate, content-neutral decision or an abuse of censorial power. The Lakewood ordinance is facially invalid because it gives the mayor absolute discretion to deny a permit and to impose any conditions he deems 'necessary and reasonable,' with no explicit, objective standards to guide his decision. The dissent's argument that the city's greater power to ban newsracks entirely includes the lesser power to license them with discretion is flawed; a content-neutral ban and a discretionary licensing scheme that risks content-based censorship are fundamentally different constitutional harms.
Dissenting - Justice White
No, the ordinance does not violate the First Amendment on its face because the facial challenge doctrine is inapplicable. The special rule allowing facial challenges to licensing schemes applies only when the government seeks to license an activity that is itself protected by the First Amendment and cannot be prohibited entirely, such as leafletting or parading in a public forum. In contrast, the First Amendment does not grant a newspaper publisher the right to permanently appropriate public property by erecting a semi-permanent structure like a newsrack. Because a city could constitutionally enact an outright, content-neutral ban on newsracks to protect legitimate interests like public safety and aesthetics, the placement of newsracks is not a protected activity that triggers the facial challenge doctrine. Therefore, the Plain Dealer should be required to apply for a permit and then challenge the law 'as applied' if the permit is denied for unconstitutional reasons. The majority's new 'nexus to expression' test is overly broad and could threaten numerous ordinary, constitutional licensing schemes.
Analysis:
This case significantly clarifies and strengthens the prior restraint doctrine, particularly the rules for facial challenges to licensing laws. The Court established that the risk of censorship created by unbridled discretion is a distinct constitutional harm from a content-neutral ban. The ruling solidifies the principle that even if a government has the authority to completely prohibit a certain manner of speech, it cannot opt for a 'lesser' restriction that involves a standardless licensing scheme. This precedent empowers speakers to challenge vague discretionary laws before they are enforced, preventing the chilling effect of self-censorship and removing the difficult burden of proving discriminatory intent in an 'as applied' challenge.
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