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City of Lakewood v. Plain Dealer Publishing Co.

Supreme Court of the United States · 1988 · Constitutional Law

Constitutional LawFirst AmendmentFreedom of the PressPrior RestraintLicensingFirst Amendmentprior restraintfacial challenge

Facts

Lakewood's 1984 ordinance required publishers to obtain annual permits from the mayor to place newsracks on public property. The mayor could grant or deny applications, had to state reasons for denial, and could impose "other terms and conditions deemed necessary and reasonable by the Mayor." The ordinance also required annual relicensing, making future access dependent on continuing official approval, and it specifically regulated newspaper distribution through newsracks on public property. The Plain Dealer did not apply for a permit under the new law and instead brought a facial First Amendment challenge.

Issue

May a newspaper facially challenge a newsrack licensing ordinance without first applying for a permit when the ordinance allegedly gives the mayor unbridled discretion over whether permits will issue and on what terms? If so, does Lakewood's ordinance violate the First Amendment by failing to contain standards that meaningfully constrain the mayor's discretion?

Rule

A facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers, so long as the law has a sufficiently close nexus to expression or conduct commonly associated with expression to create real and substantial censorship risks. In such a scheme, the Constitution requires neutral criteria that explicitly limit the licensor's discretion; courts will not presume good faith or read nonbinding limits into a silent statute.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Seattle requires an annual permit for sidewalk leaflet stands. The ordinance lets the parks director deny any application whenever she concludes denial would "best serve the public interest," and it also allows her to add any further conditions she considers appropriate. A neighborhood political newsletter sues without ever applying.

Is the suit likely justiciable as a facial First Amendment challenge?

Explanation. A facial challenge lies when a licensing law gives an official substantial power to discriminate based on content or viewpoint in an area closely connected to expression. The plaintiff need not first apply for and be denied a license. The risks are self-censorship and the difficulty of proving censorship without standards, and those risks are especially serious with periodic licensing of expressive activity.