U.S. Supreme Court

LAKEWOOD v. PLAIN DEALER PUBLISHING CO., 486 U.S. 750 (1988)

486 U.S. 750

CITY OF LAKEWOOD v. PLAIN DEALER PUBLISHING CO.

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 86-1042.

Argued November 4, 1987

Decided June 17, 1988

In federal-court proceedings, appellee newspaper publisher challenged, on First Amendment grounds, the facial constitutionality of appellant city's ordinance authorizing the mayor to grant or deny applications for annual permits to publishers to place their newsracks on public property, and if the application is denied, requiring the mayor to "stat[e] the reasons for such denial." If the application is granted, the ordinance provides that the permit is subject, inter alia, to any "terms and conditions deemed necessary and reasonable by the Mayor." The District Court found the ordinance constitutional in its entirety, and entered judgment for the city. The Court of Appeals reversed, finding the ordinance unconstitutional on the ground, among others, that it gave the mayor unbounded discretion to grant or deny a permit application and to place unlimited terms and conditions on any permit that issued.

Held:

1. Appellee may bring a facial challenge to the ordinance without first applying for, and being denied, a permit. Pp. 755-769.

(a) When a licensing statute vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without first submitting to the licensing process. Such a statute constitutes a prior restraint and may result in censorship, engendering risks to free expression that can be effectively alleviated only through a facial challenge. The mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. Standards limiting the licensor's discretion provide guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech. Without those standards, the difficulties of proof and the case-by-case nature of "as applied" challenges render the licensor's action in large measure effectively unreviewable. Pp. 755-759.

(b) The press or a speaker may not challenge as censorship every law involving discretion to which it is subject; the law must have a close enough nexus to expression, or to conduct commonly associated

with expression, to pose a real and substantial threat of censorship risks. The allowance of a facial challenge here is justified by the features that (1) the ordinance requires annual permit applications, thus permitting the licensor to measure the probable content or viewpoint of future expression by speech already uttered, and (2) the ordinance is directed narrowly and specifically at expression or conduct commonly associated with expression - the circulation of newspapers - and creates a licensing agency that might tend to favor censorship over speech. The Constitution requires that the city establish neutral criteria to insure that the mayor's licensing decision is not based on the content or viewpoint of the speech being considered. Pp. 759-762.

(c) There is no merit to the theory that the ordinance is not subject to facial challenge because the particular manner of speech (the use of newsracks) may be prohibited entirely, and thus no "First Amendment protected activity" is implicated by the ordinance's imposing less than a total prohibition, even assuming that newsracks may be prohibited entirely. Presumably in the case of a hypothetical ordinance that completely prohibits a particular manner of expression, the law on its face is both content and viewpoint neutral, and the Court would apply the well-settled time, place, and manner test. In contrast, a law permitting communication in a certain manner for some but not for others raises the danger of content and viewpoint censorship, which is at its zenith when the determination of who may speak and who may not is left to an official's unbridled discretion. Even if the government may constitutionally impose content-neutral prohibitions on a particular manner of speech, it may not condition that speech on obtaining a license from an official in that official's boundless discretion. Use of the "greater-includes-the-lesser" reasoning in the latter context is not supported by this Court's First Amendment cases. Pp. 762-769.

2. The portions of appellant city's ordinance giving the mayor discretion to deny a permit application and authority to condition a permit on any terms he deems "necessary and reasonable" are unconstitutional. It cannot be presumed that the mayor will adhere to standards absent from the ordinance's face, and so will deny a permit application only for reasons related to the health, safety, or welfare of city citizens, and that additional terms and conditions will be imposed only for similar reasons. The doctrine forbidding unbridled discretion requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice. The ordinance's minimal requirement that the mayor state his reasons for denying a permit does not provide the standards necessary to ensure constitutional decisionmaking, nor does it, of necessity, provide a solid foundation for eventual judicial review. Even if judicial review

under the ordinance's provision were relatively speedy, such review does not substitute for concrete standards to guide the decisionmaker's discretion. Pp. 769-772.

3. Other questions as to the ordinance's constitutionality presented for review need not be resolved, since the holding regarding the ordinance's mayoral-discretion provisions alone sustains the Court of Appeals' judgment if those provisions of the ordinance are not severable from the remainder. Severability of a local ordinance is a question of state law, and is therefore best resolved below. P. 772.

 794 F.2d 1139, affirmed in part and remanded.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, and SCALIA, JJ., joined. WHITE, J., filed a dissenting opinion, in which STEVENS and O'CONNOR, JJ., joined, post, p. 772. REHNQUIST, C. J., and KENNEDY, J., took no part in the consideration or decision of the case.

Henry B. Fischer argued the cause for appellant. With him on the briefs were Frederick W. Whatley and Roger D. Tibbetts.

James P. Garner argued the cause for appellee. With him on the briefs were David L. Marburger, Bruce W. Sanford, and Peter C. Gould.^{Footnote *}

JUSTICE BRENNAN delivered the opinion of the Court.

The city of Lakewood, a suburban community bordering Cleveland, Ohio, appeals a judgment of the Court of Appeals

for the Sixth Circuit enjoining enforcement of its local ordinance regulating the placement of newsracks. The court's decision was based in part on its conclusion that the ordinance vests the mayor with unbridled discretion over which publishers may place newsracks on public property and where.

I

Prior to 1983, the city of Lakewood absolutely prohibited the private placement of any structure on public property. On the strength of that law, the city denied the Plain Dealer Publishing Company (Newspaper) permission to place its coin-operated newspaper dispensing devices on city sidewalks. In response, the Newspaper brought suit in the District Court for the Northern District of Ohio challenging the ordinance. The District Court adjudged the absolute prohibition unconstitutional, but delayed entering a permanent injunction to give the city time to amend its law.

Although the city could have appealed the District Court's judgment, it decided instead to adopt two ordinances permitting the placement of structures on city property under certain conditions. One of those ordinances specifically concerns newsracks. 901.181, Codified Ordinances, City of Lakewood (1984).[^{Footnote 1} ] That ordinance gives the mayor the authority to grant or deny applications for annual newsrack permits. If the mayor denies an application, he is required to "stat[e] the reasons for such denial." In the event the mayor grants an application, the city issues an annual permit subject to several terms and conditions. Among them are: (1)