RESPONDENT: Plain Dealer Publishing Co.
LOCATION: New York City Council
DOCKET NO.: 86-1042
DECIDED BY: Rehnquist Court (1988-1990)
CITATION: 486 US 750 (1988)
ARGUED: Nov 04, 1987
DECIDED: Jun 17, 1988
Facts of the case
Plain Dealer Publishing challenged the constitutionality of a Lakewood city ordinance that authorized its mayor to grant or deny applications, made by publishers, seeking permission to place newsracks on public property. The ordinance merely required Lakewood's mayor to provide an explanation, in the event of a permit denial, while empowering him to subject all permit approvals to whatever "terms and conditions" which he "deemed necessary and reasonable." On appeal from a district court ruling that found the ordinance constitutional, the Court of Appeals reversed. The Supreme Court granted Lakewood's request for certiorari.
Did Lakewood's city ordinance violate freedom of speech rights as protected by the First Amendment?
Media for City of Lakewood v. Plain Dealer Publishing Co.Audio Transcription for Oral Argument - November 04, 1987 in City of Lakewood v. Plain Dealer Publishing Co.
Audio Transcription for Opinion Announcement - June 17, 1988 in City of Lakewood v. Plain Dealer Publishing Co.
William H. Rehnquist:
The opinions of the Court in two cases, No. 86-1042, City of Lakewood versus Plain Dealer Publishing Company and No. 87-499, Christianson versus Colt Industries Operating Corporation will be announced by Justice Brennan.
William J. Brennan, Jr.:
The first of these cases, City of Lakewood versus Plain Dealer Publishing is here on appeal from the Court of Appeals for the Sixth Circuit.
The appellee is a newspaper publisher.
The appellee 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.
The ordinance provides that if the application is granted that the permit is subject to any terms and conditions deemed necessary and reasonable by the mayor.
The District Court rejected the publishers First Amended argument and found the ordinance constitutional in its entirety.
The Court of Appeals reversed, finding the ordinance unconstitutional on the ground among others that the ordinance violated the First Amendment because it gave the mayor unbounded discretion to grant or deny a permit application and to place unlimited terms and conditions on any permit that the mayor issued.
We affirmed in part and remand.
We hold that the appellee publisher may bring a facial challenge to the ordinance without applying for and being denied a permit when a licensing statute vests unbridled discretion in a government official on whether they permit or a deny expressive activity, one who is subject to the law may challenge it facially without first, submitting to the licensing process, such as statute constitutes a prior restraint that may result in censorship, engendering risks to free expression that can be effectively prevented 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.
And standards limiting the licensor's discretion provide a guidepost 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 case-by-case nature of as applied challenges render the licensor's action in large measure effectively unreviewable.
We find no merit in the city's argument that the ordinance is not subject to facial challenge because the use of newsracks may be prohibited entirely.
First Amendment protected activity is implicated by the provisions of the ordinance imposing less than the total prohibition, even assuming that newsracks may be prohibited entirely.
The provisions giving the major discretion to deny or permit application and authority to condition or permit on any terms, he deems necessary unreasonable fall under the First Amendment doctrine forbidding unbridled discretion.
That doctrine 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 is a minimum requirement that the mayor state his reasons for denying a permit does not provide the standards necessary to insure constitutional decision-making, nor does it of necessity provide a solid foundation for eventual judicial review.
Even if judicial review under the ordinance's provisions were relatively speedy, such review does not substitute for concrete standards to guide the decisionmaker's discretion.
Justice White dissents and has filed a dissenting opinion in which Justice Stevens and Justice O'Connor joined.
The Chief Justice and Justice Kennedy took no part in the consideration or decision of the case.