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.
486 U. S.
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.
486 U. S.
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,
Page 486 U. S. 751
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.
486 U. S.
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.
486 U. S.
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
Page 486 U. S. 752
under the ordinance's provision were relatively speedy, such
review does not substitute for concrete standards to guide the
decisionmaker's discretion. Pp.
486 U. S.
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.
486 U. S.
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.
486 U. S. 772.
REHNQUIST, C.J., and KENNEDY, J., took no part in the consideration
or decision of the case.
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
Page 486 U. S. 753
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) approval of the
newsrack design by the city's Architectural Board of Review; (2) an
agreement by the newsrack owner to indemnify the city against any
liability arising from the newsrack, guaranteed by a $100,000
insurance policy to
Page 486 U. S. 754
that effect; and (3) any "other terms and conditions deemed
necessary and reasonable by the Mayor." [
Footnote 2]
Dissatisfied with the new ordinance, the Newspaper elected not
to seek a permit, and instead amended its complaint in the District
Court to challenge facially the law as amended. The District Court
found the ordinance constitutional in its entirety, and entered
judgment in the city's favor.
Page 486 U. S. 755
The Court of Appeals for the Sixth Circuit reversed, finding the
ordinance unconstitutional in three respects. First, it held that
the ordinance gives the Mayor unbounded discretion to grant or deny
a permit application and to place unlimited additional terms and
conditions on any permit that issues. Second, it concluded that, in
the absence of any express standards governing newsrack design, the
design approval requirement effectively gives the Board unbridled
discretion to deny applications. Finally, a majority of the panel
decided that the indemnity and insurance requirements for newsrack
owners violate the First Amendment because no similar burdens are
placed on owners of other structures on public property. [
Footnote 3] The court found that the
foregoing provisions of the law were not severable, and therefore
held the entire ordinance unconstitutional insofar as it regulates
newsracks in commercial districts. [
Footnote 4] The city appealed, and we noted probable
jurisdiction. 480 U.S. 904 (1987).
II
At the outset, we confront the issue whether the Newspaper may
bring a facial challenge to the city's ordinance. We conclude that
it may.
A
Recognizing the explicit protection accorded speech and the
press in the text of the First Amendment, our cases have long held
that, when a licensing statute allegedly 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 the necessity of first applying for,
Page 486 U. S. 756
and being denied, a license. [
Footnote 5]
E.g., Freedman v. Maryland,
380 U. S. 51,
380 U. S. 56
(1965) ("In the area of freedom of expression, it is well
established that one has standing to challenge a statute on the
ground that it delegates overly broad licensing discretion to an
administrative office,
whether or not his conduct could be
proscribed by a properly drawn statute, and whether or not he
applied for a license") (emphasis added);
Thornhill v.
Alabama, 310 U. S. 88,
310 U. S. 97
(1940) (in the First Amendment context, "[o]ne who might have had a
license for the asking may . . . call into question the whole
scheme of licensing when he is prosecuted for failure to procure
it").
See also Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S. 151
(1969) ("
The Constitution can hardly be thought to deny to one
subjected to the restraints of [a licensing law] the right to
attack its constitutionality, because he has not yielded to its
demands'" (quoting Jones v. Opelika, 316 U.
S. 584, 316 U. S. 602
(1942) (Stone, C.J., dissenting), adopted per curiam on
rehearing, 319 U. S. 103,
319 U. S. 104
(1943))); Lovell v. Griffin, 303 U.
S. 444, 303 U. S.
452-453 (1938) ("As the ordinance [providing for
unbridled licensing discretion] is void on its face, it was not
necessary for appellant to seek a permit under it"); cf.
Secretary of State of Md. v. Joseph H. Munson Co.,
467 U. S. 947,
467 U. S.
956-957 (1984). [Footnote 6]
Page 486 U. S. 757
At the root of this long line of precedent is the time-tested
knowledge that, in the area of free expression, a licensing statute
placing unbridled discretion in the hands of a government official
or agency constitutes a prior restraint and may result in
censorship.
E.g., Shuttlesworth, supra, at
349 U. S. 151;
Cox v. Louisiana, 379 U. S. 536
(1965);
Staub v. City of Baxley, 355 U.
S. 313,
355 U. S.
321-322 (1958);
Kunz v. New York, 340 U.
S. 290,
340 U. S. 294
(1951);
Niemotko v. Maryland, 340 U.
S. 268 (1951);
Saia v. New York, 334 U.
S. 558 (1948). And these evils engender identifiable
risks to free expression that can be effectively alleviated only
through a facial challenge. First, 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. As we
said in
Thornhill:
"Proof of an abuse of power in the particular case has never
been deemed a requisite for attack on the constitutionality of a
statute purporting to license the dissemination of ideas. . . . The
power of the licensor against which John Milton directed his
assault by his 'Appeal for the Liberty of Unlicensed Printing' is
pernicious not merely by reason of the censure of particular
comments, but by the reason of the
threat to censure comments
on matters of public concern. It is not merely the sporadic
abuse of power by the censor,
but the pervasive threat inherent
in its very existence that constitutes the danger to freedom of
discussion."
310 U.S. at
310 U. S. 97
(emphases added).
See also Freedman, supra.
Self-censorship is immune to an "as applied" challenge, for it
derives from the individual's own actions, not an abuse of
government power. It is not difficult to visualize a newspaper that
relies to a substantial degree on single issue sales feeling
significant pressure to endorse the incumbent Mayor in an upcoming
election, or to refrain
Page 486 U. S. 758
from criticizing him, in order to receive a favorable and speedy
disposition on its permit application. Only standards limiting the
licensor's discretion will eliminate this danger by adding an
element of certainty fatal to self-censorship.
Cf. Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.
S. 489,
455 U. S. 498
(1982) (vagueness doctrine). And only a facial challenge can
effectively test the statute for these standards.
Second, the absence of express standards makes it difficult to
distinguish, "as applied," between a licensor's legitimate denial
of a permit and its illegitimate abuse of censorial power.
Standards provide the guideposts that check the licensor and allow
courts quickly and easily to determine whether the licensor is
discriminating against disfavored speech. Without these guideposts,
post hoc rationalizations by the licensing official and
the use of shifting or illegitimate criteria are far too easy,
making it difficult for courts to determine in any particular case
whether the licensor is permitting favorable, and suppressing
unfavorable, expression.
See, e.g., Joseph H. Munson Co.,
supra, at
467 U. S. 964,
n. 12;
Cox v. Louisiana, supra, at
379 U. S. 557.
Further, the difficulty and delay inherent in the "as applied"
challenge can itself discourage litigation. A newspaper espousing
an unpopular viewpoint on a shoestring budget may be the likely
target for a retaliatory permit denial, but may not have the time
or financial means to challenge the licensor's action. That paper
might instead find it easier to capitulate to what it perceives to
be the Mayor's preferred viewpoint, or simply to close up shop.
Even if that struggling paper were willing and able to litigate the
case successfully, the eventual relief may be "too little and too
late." Until a judicial decree to the contrary, the licensor's
prohibition stands. In the interim, opportunities for speech are
irretrievably lost.
Freedman, 380 U.S. at
380 U. S. 57;
see also Saia, supra, at
334 U. S. 560;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 306
(1940). In sum, without standards to fetter the licensor's
discretion, the difficulties of proof and the
Page 486 U. S. 759
case-by-case nature of "as applied" challenges render the
licensor's action in large measure effectively unreviewable.
B
The foregoing concepts form the heart of our test to distinguish
laws that are vulnerable to facial challenge from those that are
not. As discussed above, we have previously identified two major
First Amendment risks associated with unbridled licensing schemes:
self-censorship by speakers in order to avoid being denied a
license to speak, and the difficulty of effectively detecting,
reviewing, and correcting content-based censorship "as applied"
without standards by which to measure the licensor's action. It is
when statutes threaten these risks to a significant degree that
courts must entertain an immediate facial attack on the law.
Therefore, 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. This is not to say that the
press or a speaker may challenge as censorship any 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 the identified
censorship risks.
The regulatory scheme in the present case contains two features
which, at least in combination, justify the allowance of a facial
challenge. First, Lakewood's ordinance requires that the Newspaper
apply annually for newsrack licenses. Thus, it is the sort of
system in which an individual must apply for multiple licenses over
time, or periodically renew a license. When such a system is
applied to speech, or to conduct commonly associated with speech,
the licensor does not necessarily view the text of the words about
to be spoken, but can measure their probable content or viewpoint
by speech already uttered.
See Saia v. New York, supra. A
speaker in this position is under no illusion regarding the
Page 486 U. S. 760
effect of the "licensed" speech on the ability to continue
speaking in the future. Yet demonstrating the link between
"licensed" expression and the denial of a later license might well
prove impossible. While perhaps not as direct a threat to speech as
a regulation allowing a licensor to view the actual content of the
speech to be licensed or permitted,
see Freedman, supra; Cox v.
Louisiana, 379 U. S. 536
(1965);
Bantam Books, Inc. v. Sullivan, 372 U. S.
58 (1963), a multiple or periodic licensing requirement
is sufficiently threatening to invite judicial concern.
A second feature of the licensing system at issue here is that
it is directed narrowly and specifically at expression or conduct
commonly
Page 486 U. S. 761
associated with expression: the circulation of newspapers. Such
a framework creates an agency or establishes an official charged
particularly with reviewing speech, or conduct commonly associated
with it, breeding an "expertise" tending to favor censorship over
speech.
Freedman, supra. Indeed, a law requiring the
licensing of printers has historically been declared the archetypal
censorship statute.
See 4 W. Blackstone, Commentaries
*152. Here again, without standards to bound the licensor, speakers
denied a license will have no way of proving that the decision was
unconstitutionally motivated, and, faced with that prospect, they
will be pressured to conform their speech to the licensor's
unreviewable preference.
Because of these features in the regulatory system at issue
here, we think that a facial challenge is appropriate, and that
standards controlling the Mayor's discretion must be required. Of
course, the city may require periodic licensing, and may even have
special licensing procedures for conduct commonly associated with
expression; but the Constitution requires that the city establish
neutral criteria to insure that the licensing decision is not based
on the content or viewpoint of the speech being considered.
In contrast to the type of law at issue in this case, laws of
general application that are not aimed at conduct commonly
associated with expression and do not permit licensing
determinations to be made on the basis of ongoing expression or the
words about to be spoken, carry with them little danger of
censorship. For example, a law requiring building permits is rarely
effective as a means of censorship. To be sure, on rare occasion,
an opportunity for censorship will exist, such as when an unpopular
newspaper seeks to build a new plant. But such laws provide too
blunt a censorship instrument to warrant judicial intervention
prior to an allegation of actual misuse. And if such charges are
made, the general application of the statute to areas unrelated to
expression will provide the courts a yardstick with which to
measure the licensor's occasional speech-related decision.
The foregoing discussion explains why the dissent's analogy
between newspapers and soda vendors is inapposite.
See
post at
486 U. S.
788-789. Newspapers are in the business of expression,
while soda vendors are in the business of selling soft drinks. Even
if the soda vendor engages in speech, that speech is not related to
the soda; therefore preventing it from installing its machines may
penalize unrelated speech, but will not directly prevent that
speech from occurring. In sum, a law giving the Mayor unbridled
discretion to decide which soda vendors may place their machines on
public property does not vest him with frequent opportunities to
exercise substantial power over the content or viewpoint of the
vendor's speech by suppressing the speech or directly controlling
the vendor's ability to speak.
The proper analogy is between newspapers and leaflets. It is
settled that leafletters may facially challenge licensing laws.
See e.g., Talley v. California, 362 U. S.
60 (1960);
Lovell v. Griffin, 303 U.
S. 444 (1938). This settled law is based on the accurate
premise that peaceful pamphleteering "is not fundamentally
different from the function of a newspaper."
Organization for a
Better Austin v. Keefe, 402 U. S. 415,
402 U. S. 419
(1971);
see also Lovell, supra, at
303 U. S.
450-452. The dissent's theory therefore would turn the
law on its head. That
Page 486 U. S. 762
result cannot be justified by relying on the meaningless
distinction that, here, the newspapers are ultimately distributed
by a machine, rather than by hand. First, the ordinance held
invalid in
Lovell applied to distribution "by hand or
otherwise." 303 U.S. at
303 U. S. 447.
The Court did not even consider holding the law invalid only as to
distribution by hand. Second, such a distinction makes no sense in
logic or theory. The effectiveness of the newsrack as a means of
distribution, especially for low-budget, controversial neighborhood
newspapers, means that the twin threats of self-censorship and
undetectable censorship are, if anything, greater for newsracks
than for pamphleteers.
Cf. Schneider v. State,
308 U. S. 147,
308 U. S. 164
(1939) (relying on the effectiveness of pamphleteering);
Martin
v. Struthers, 319 U. S. 141,
319 U. S.
145-146 (1943) (same).
C
In an analysis divorced from a careful examination of the unique
risks associated with censorship just discussed and their relation
to the law before us, the dissent reasons that, if a particular
manner of speech may be prohibited entirely, then no "activity
protected by the First Amendment" can be implicated by a law
imposing less than a total prohibition. It then finds that a total
ban on newsracks would be constitutional. Therefore, the dissent
concludes, the actual ordinance at issue involves no "activity
protected by the First Amendment," and thus is not subject to
facial challenge. However, that reasoning is little more than a
legal sleight-of-hand, misdirecting the focus of the inquiry from a
law allegedly vesting unbridled censorship discretion in a
government official toward one imposing a blanket prohibition.
[
Footnote 7]
The key to the dissent's analysis is its
"greater-includes-the-lesser" syllogism. But that syllogism is
blind to the radically
Page 486 U. S. 763
different constitutional harms inherent in the "greater" and
"lesser" restrictions. [
Footnote
8] Presumably, in the case of an ordinance that completely
prohibits a particular manner of expression, the law on its face is
both content and viewpoint neutral. In analyzing such a
hypothetical ordinance, the Court would apply the well settled
time, place, and manner test.
E.g., Consolidated Edison Co. v.
Public Service Comm'n of N.Y., 447 U.
S. 530,
447 U. S. 535
(1980);
Police Department of Chicago v. Mosley,
408 U. S. 92
(1972). The danger giving rise to the First Amendment inquiry is
that the government is silencing or restraining a channel of
speech; we ask whether some interest unrelated to speech justifies
this silence. To put it another way, the question is whether "the
manner of expression is basically incompatible with the normal
activity of a particular place at a particular time."
Grayned
v. Rockford, 408 U. S. 104,
408 U. S. 116
(1972).
In contrast, a law or policy permitting communication in a
certain manner for some, but not for others, raises the specter of
content and viewpoint censorship. This danger is at its zenith when
the determination of who may speak and who may not is left to the
unbridled discretion of a government official. As demonstrated
above, we have often and uniformly held that such statutes or
policies impose censorship on the public or the press, and hence
are unconstitutional, because, without standards governing the
exercise of discretion, a government official may decide who may
speak and who may not based upon the content of the speech or
viewpoint of
Page 486 U. S. 764
the speaker.
E.g., Cox v. Louisiana, 379 U.S. at
379 U. S. 557;
Staub, 355 U.S. at
355 U. S. 322.
Therefore, 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 or permit from
a government official in that official's boundless discretion. It
bears repeating that,
"[i]n the area of freedom of expression, it is well established
that one has standing to challenge a statute on the ground that it
delegates overly broad licensing discretion to an administrative
office, whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied for a
license."
Freedman, 380 U.S. at
380 U. S. 56.
Fundamentally, then, the dissent's proposal ignores the different
concerns animating our test to determine whether an expressive
activity may be banned entirely, and our test to determine whether
it may be licensed in an official's unbridled discretion.
This point is aptly illustrated by a comparison of two of our
prior cases:
Saia v. New York, 334 U.
S. 558 (1948), and
Kovacs v. Cooper,
336 U. S. 77
(1949). In
Saia, this Court held that an ordinance
prohibiting the use of sound trucks without permission from the
Chief of Police was unconstitutional because the licensing official
was able to exercise unbridled discretion in his decisionmaking,
and therefore could, in a calculated manner, censor certain
viewpoints. Just seven months later, the Court held in
Kovacs that a city could absolutely ban the use of sound
trucks. The plurality distinguished
Saia precisely on the
ground that, there, the ordinance constituted censorship by
allowing some to speak, but not others; in
Kovacs, the
statute barred a particular manner of speech for all. 336 U.S. at
336 U. S. 80
(plurality opinion of Reed, J.). [
Footnote 9]
Page 486 U. S. 765
Saia is irreconcilable with the logic the dissent now
puts forward. Under the dissent's novel rule, the Court in
Saia should first have determined whether the use of sound
trucks could be prohibited completely. If so, as was held in
Kovacs, the Court should have rejected the constitutional
facial challenge.
Page 486 U. S. 766
No "activity protected by the First Amendment" (as the dissent
defines it) would have been at issue. [
Footnote 10]
The
Kovacs/Saia comparison provides perhaps the
clearest example of the flaw in the dissent's
"greater-includes-the-lesser" reasoning. However, in a host of
other First Amendment cases, we have expressly or implicitly
rejected that logic, and have considered on the merits facial
challenges to statutes or policies that embodied discrimination
based on the content or viewpoint of expression, or vested
officials with open-ended discretion that threatened the same, even
where it was assumed that a properly drawn law could have greatly
restricted or prohibited the manner of expression or circulation at
issue.
For instance, in
Mosley we considered an ordinance
banning all picketing near a school
except labor
picketing. The Court declared the law unconstitutional because the
ordinance was sensitive to the content of the message. Whether or
not the picket could have been prohibited entirely was not
dispositive of the Court's inquiry. 408 U.S. at
408 U. S. 96-99.
Similarly, in
Flower v. United States, 407 U.
S. 197 (1972), the Court summarily reversed a conviction
based on Flower's return to a military facility to leaflet after
having been ordered to leave once before. It was never doubted that
a military commander may generally restrict access to a military
facility. But, where the base was for all other purposes treated as
part of the surrounding city, the Court refused to allow the
commander unbridled discretion to prohibit Flower's leafletting. In
Schacht v. United States, 398 U. S.
58 (1970), the Court struck down a statute permitting
actors to wear a military uniform in a theater or motion picture
production
Page 486 U. S. 767
only "if the portrayal does not tend to discredit that armed
force." The Court noted that, although a total prohibition would be
valid, a prohibition sensitive to the viewpoint of speech could not
stand.
Niemotko provides yet another example of the
Court's rejection of "greater-includes-the-lesser" logic in the
First Amendment area. There, a Jehovah's Witness was convicted of
disorderly conduct after speaking in a park without a license. The
Court decided that, whatever power a city might have to prohibit
all religious speech in its parks, it could not allow some, but not
all, religious speech, depending on the exercise of unbridled
discretion. 340 U.S. at
340 U. S.
272-273. Or, as Justice Frankfurter put it in his
concurring opinion,
"[a] licensing standard which gives an official authority to
censor the content of speech differs
toto coelo from one
limited by its terms, or by nondiscriminatory practice, to
considerations of public safety and the like."
Id. at
340 U. S. 282.
Cf. Widmar v. Vincent, 454 U. S. 263
(1981) (public university need not create a public forum, but,
having done so, it may not restrict access so as to exclude some
groups based on the religious content of their speech without
constitutional justification);
Madison Joint School District v.
Wisconsin Employment Relations Comm'n, 429 U.
S. 167 (1976) (School Board need not create a public
forum, but, having done so, it cannot restrict who may speak based
on the content or viewpoint of the speech). To counter this
unanimous line of authority, the dissent does not refer to a single
case supporting its view that we cannot consider a facial challenge
to an ordinance alleged to constitute censorship over
constitutionally protected speech merely because the manner used to
circulate that speech might be otherwise regulated or prohibited
entirely.
Ultimately, then, the dissent's reasoning must fall of its own
weight. As the preceding discussion demonstrates, this Court has
long been sensitive to the special dangers inherent in a law
placing unbridled discretion directly to license speech, or conduct
commonly associated with speech, in the
Page 486 U. S. 768
hands of a government official. In contrast, when the government
is willing to prohibit a particular manner of speech entirely --
the speech it favors along with the speech it disfavors -- the risk
of governmental censorship is simply not implicated. The "greater"
power of outright prohibition raises other concerns, and we have
developed tests to consider them. But we see no reason, and the
dissent does not advance one, to ignore censorship dangers merely
because other, unrelated concerns are satisfied.
The dissent compounds its error by defining an "activity
protected by the First Amendment" by the time, place, or (in this
case) manner by which the activity is exercised. The actual
"activity" at issue here is the circulation of newspapers, which is
constitutionally protected. After all,
"[l]iberty of circulating is as essential to [freedom of
expression] as liberty of publishing; indeed, without the
circulation, the publication would be of little value."
Ex parte Jackson, 96 U. S. 727,
96 U. S. 733
(1878);
Lovell, 303 U.S. at
303 U. S.
452.
The dissent's recharacterization of the issue is not merely
semantic; substituting the time, place, or manner for the activity
itself allows the dissent to define away a host of activities
commonly considered to be protected. The right to demonstrate
becomes the right to demonstrate at noise levels proscribed by law;
the right to parade becomes the right to parade anywhere in the
city 24 hours a day; and the right to circulate newspapers becomes
the right to circulate newspapers by way of newsracks placed on
public property. Under the dissent's analysis, ordinances giving
the Mayor unbridled discretion over whether to permit loud
demonstrations or evening parades would not be vulnerable to a
facial challenge, since they would not "requir[e] a license to
engage in activity protected by the First Amendment."
Post
at
486 U. S. 777.
But see Grayned, 408 U.S. at
408 U. S. 113
(implying that a law banning excessively loud demonstrations was
not facially invalid because its terms could not invite "subjective
or discriminatory enforcement").
Page 486 U. S. 769
Moreover, we have never countenanced such linguistic
prestidigitation, even where a regulation or total prohibition of
the "manner" of speech has been upheld. In determining whether
expressive conduct is at issue in a censorship case, we do not look
solely to the time, place, or manner of expression, but rather to
whether the activity in question is commonly associated with
expression. For example, in
Kovacs, it was never doubted
that the First Amendment's protection of expression was implicated
by the ordinance prohibiting sound trucks. The Court simply
concluded that the First Amendment was not abridged. 336 U.S. at
336 U. S. 87.
See also City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789
(1984). So here, the First Amendment is certainly implicated by the
city's circulation restriction; the question we must resolve is
whether the First Amendment is abridged.
III
Having concluded that the Newspaper may facially challenge the
Lakewood ordinance, we turn to the merits. Section 901.181,
Codified Ordinances, City of Lakewood, provides:
"The Mayor shall either deny the application [for a permit],
stating the reasons for such denial or grant said permit subject to
the following terms. . . ."
Section 901.181 (c) sets out some of those terms, including:
"(7) such other terms and conditions deemed necessary and
reasonable by the Mayor." It is apparent that the face of the
ordinance itself contains no explicit limits on the Mayor's
discretion. Indeed, nothing in the law as written requires the
Mayor to do more than make the statement "it is not in the public
interest" when denying a permit application. Similarly, the Mayor
could grant the application, but require the newsrack to be placed
in an inaccessible location without providing any explanation
whatever. To allow these illusory "constraints" to constitute the
standards necessary to bound a licensor's discretion renders the
guaranty against censorship little
Page 486 U. S. 770
more than a high-sounding ideal.
See Shuttlesworth, 394
U.S. at
394 U. S.
150-151.
The city asks us to presume that the Mayor will deny a permit
application only for reasons related to the health, safety, or
welfare of Lakewood citizens, and that additional terms and
conditions will be imposed only for similar reasons. This presumes
the Mayor will act in good faith and adhere to standards absent
from the statute's face. But this is the very presumption that the
doctrine forbidding unbridled discretion disallows.
E.g.,
Freedman v. Maryland, 380 U. S. 51
(1965). The 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.
Poulos v. New Hampshire,
345 U. S. 395
(1953);
Kunz v. New York, 340 U.
S. 290 (1951). This Court will not write nonbinding
limits into a silent statute. [
Footnote 11]
Page 486 U. S. 771
Although the dissent disclaims a desire to pass upon the actual
ordinance at issue, it apparently cannot resist making a few
comments in this regard.
Post at
486 U. S. 793,
n. 13. First, it asserts that the ordinance's requirement that the
Mayor state his reasons for denying a permit distinguishes this
case from other licensing cases. However, the Mayor's statement
need not be made with any degree of specificity, nor are there any
limits as to what reasons he may give. Such a minimal requirement
cannot provide the standards necessary to insure constitutional
decisionmaking, nor will it, of necessity, provide a solid
foundation for eventual judicial review.
The dissent is also comforted by the availability of judicial
review. However, that review comes only after the Mayor and the
City Council have denied the permit. Nowhere in the ordinance is
either body required to act with reasonable dispatch. Rather, an
application could languish indefinitely before the Council, with
the Newspaper's only judicial remedy being a petition for mandamus.
Cf. Freedman, supra, at
380 U. S. 54-55,
380 U. S. 59.
Even if judicial review were relatively speedy, such review cannot
substitute for concrete standards to guide the decisionmaker's
discretion.
E.g., Saia, 334 U.S. at
334 U. S. 560,
and
supra at
486 U. S.
760-761.
Finally, the dissent attempts to distinguish newsrack permits
from parade permits, in that the latter are often given for a
particular event or time, whereas the former supposedly have no
urgency. This overstates the proposition. We agree that, in some
cases, there is exceptional force to the argument that a permit
delayed is a permit denied. However, we cannot agree that newspaper
publishers can wait indefinitely for a permit only because there
will always be news to report. News is not fungible. Some stories
may be particularly well covered by certain publications, providing
that newspaper with a unique opportunity to develop readership. In
order to benefit from that event, a paper needs public
Page 486 U. S. 772
access at a particular time; eventual access would come "too
little and too late."
Freedman, supra, at
380 U. S. 57.
The Plain Dealer has been willing to forgo this benefit for four
years in order to bring and litigate this lawsuit. However, smaller
publications may not be willing or able to make the same
sacrifice.
IV
We hold those portions of the Lakewood ordinance giving the
Mayor unfettered discretion to deny a permit application and
unbounded authority to condition the permit on any additional terms
he deems "necessary and reasonable" to be unconstitutional. We need
not resolve the remaining questions presented for review, as our
conclusion regarding mayoral discretion will alone sustain the
Court of Appeals' judgment if these portions 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.
See Mayflower Farms, Inc. v. Ten Eyck, 297 U.
S. 266,
297 U. S. 274
(1936). Accordingly, we remand this cause to the Court of Appeals
to decide whether the provisions of the ordinance we have declared
unconstitutional are severable, and to take further action
consistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE and JUSTICE KENNEDY took no part in the
consideration or decision of this case.
[
Footnote 1]
The other ordinance deals with all other structures and is
unchallenged. § 901.18, Codified Ordinances, City of Lakewood
(1984).
[
Footnote 2]
The portions of the ordinance relevant to this appeal are as
follows:
"901.181 NEWSPAPER DISPENSING DEVICES; PERMIT AND
APPLICATION"
"Applications may be made to and on forms approved by the Mayor
for rental permits allowing the installation of newspaper
dispensing devices on public property along the streets and
thoroughfares within the City respecting newspapers having general
circulation throughout the City."
"The Mayor shall either deny the application, stating the
reasons for such denial or grant said permit subject to the
following terms:"
"(a) . . . The design of [newsracks] shall be subject to
approval by the Architectural Board of Review."
"(b) Newspaper dispensing devices shall not be placed in the
residential use districts of the City. . . . "
"(c) The rental permit shall be granted upon the following
conditions:"
"
* * * *"
"(5) the permittee shall save and hold the City of Lakewood
harmless from any and all liability for any reason whatsoever
occasioned upon the installation and use of each newspaper
dispensing device and shall furnish, at permittee's expense, such
public liability insurance as will protect permittee and the City
from all claims for damage to property or bodily injury, including
death, which may arise from the operation under the permit or in
connection therewith and such policy . . . shall be in an amount
not less than One Hundred Thousand Dollars ($100,000). . . . "
"(6) rental permits shall be for a term of one year and shall
not be assignable; and"
"(7) such other terms and conditions deemed necessary and
reasonable by the Mayor."
"
* * * *"
"(e) A person aggrieved by a decision of the Mayor in refusing
to grant or revoking a rental permit shall have the right to appeal
to Council. . . ."
The ordinance is quoted in full in the opinion below. 794 F.2d
1139, 1141, n. 1 (CA6 1986).
[
Footnote 3]
The city asserts that it will apply the indemnity and insurance
requirements to all structures on public property except as to the
public utilities (telephone booths, utility poles, and bus
shelters) already extant on public property when § 901.181 was
enacted.
[
Footnote 4]
The court decided that the absolute ban on residential newsrack
placements was both constitutional and severable. Its decision in
that respect is not challenged here.
[
Footnote 5]
Of course, the degree of First Amendment protection is not
diminished merely because the newspaper or speech is sold, rather
than given away.
Pittsburgh Press Co. v. Pittsburgh Comm'n on
Human Relations, 413 U. S. 376,
413 U. S. 385
(1973).
[
Footnote 6]
In general,
compare Plymouth Coal Co. v. Pennsylvania,
232 U. S. 531
(1914) (coal mining),
Yazoo & Mississippi Valley R. Co. v.
Jackson Vinegar Co., 226 U. S. 217
(1912) (railroad),
and New York ex rel. Lieberman v. Van De
Carr, 199 U. S. 552
(1905) (dairy business), all requiring challenges "as applied,"
with Secretary of State of Md. v. Joseph H. Munson Co.,
467 U.S. at
467 U. S.
964-968 (charity solicitation),
Hynes v. Mayor of
Oradell, 425 U. S. 610
(1976) (registration requirement for political candidate or charity
solicitation door to door),
Shuttlesworth v. Birmingham,
394 U. S. 147
(1969) (parade),
Freedman v. Maryland, 380 U. S.
51 (1965) (film censorship),
Talley v.
California, 362 U. S. 60 (1960)
(handbills),
Saia v. New York, 334 U.
S. 558 (1948) (sound trucks), and
Lovell v.
Griffin, 303 U. S. 444
(1938) (leaflets), all allowing facial challenges.
[
Footnote 7]
Because we reject the dissent's overall logical framework, we do
not pass on its view that a city may constitutionally prohibit the
placement of newsracks on public property.
[
Footnote 8]
The dissent informs us that it abjures any reliance on a
"greater-includes-the-lesser" theory. Yet, in the very next
sentence, we are told that
"where an activity . . . could be forbidden altogether (without
running afoul of the First Amendment),' then, for that reason
alone, 'the
Lovell-Freedman doctrine does not apply, and
our usual rules concerning the permissibility of discretionary
local licensing laws (and facial challenges to those laws) must
prevail."
Post at
486 U.S.
786. In other words, the greater power to prohibit a manner
of speech entirely includes the lesser power to license it in an
official's unbridled discretion. A clearer example of the
discredited doctrine could not be imagined.
[
Footnote 9]
The dissent suggests that the
Kovacs plurality's
distinction of
Saia is somehow not good law, because four
other Justices (three of whom were in dissent) adopted the far
broader rationale that
Saia was actually repudiated.
JUSTICE WHlTE's interpretation of
Kovacs does not square
with our settled jurisprudence: when no single rationale commands a
majority, "the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgmen[t] on the
narrowest grounds."
Marks v. United States, 430 U.
S. 188,
430 U. S. 193
(1977). Clearly, in
Kovacs, the plurality opinion put
forth the narrowest rationale for the Court's judgment. In any
event, history has vindicated the plurality's distinction.
Saia has been cited literally hundreds of times in its
40-year history (a strange phenomenon had that case been
"repudiated"), and never with the notation "overruled on other
grounds."
See, e.g., Munson, 467 U.S. at
467 U. S. 965,
n. 13 (citing
Saia for the proposition that, where a law
on its face presents an unacceptable risk of the suppression of
ideas, that law may be struck on its face);
Schad v. Mount
Ephraim, 452 U. S. 61,
452 U. S. 84
(1981) (STEVENS, J., concurring in judgment) ("Presumably,
municipalities may regulate expressive activity -- even protected
activity -- pursuant to narrowly drawn content-neutral standards;
however, they may not regulate protected activity when the only
standard provided is the unbridled discretion of a municipal
official.
Compare Saia v. New York, 334 U.
S. 558,
with 336 U. S.
Cooper, 336 U. S. 77");
Virginia Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748,
425 U. S. 771
(1976) (
Kovacs and
Saia compared in course of a
string cite to illustrate that the Court approves time, place, and
manner restrictions that are content-neutral);
Kunz v. New
York, 340 U. S. 290,
340 U. S. 294
(1951) (opinion of the Court by Vinson, C.J., joined by Reed,
Douglas, Burton, Clark, and Minton, JJ.) (citing
Saia for
the proposition that a regulation placing unbridled discretion in
the hands of a government official over the use of a loudspeaker or
amplifier is unconstitutional). Nor has
Saia been cited
merely because
Kovacs has been ignored.
See, e.g.,
California v. LaRue, 409 U. S. 109,
409 U. S. 117,
n. 4 (1972) (
Kovacs cited for the proposition that "States
may validly limit the manner in which the First Amendment freedoms
are exercised by forbidding sound trucks in residential
neighborhoods");
Red Lion Broadcasting Co. v. FCC,
395 U. S. 367,
395 U. S.
386-387 (1969) (citing
Kovacs for the
proposition that sound trucks may be neutrally regulated);
Edwards v. South Carolina, 372 U.
S. 229,
372 U. S. 242
(1963) (Clark, J., dissenting) (
Kovacs cited for the
proposition that there is no right to broadcast from a sound truck
on public streets).
[
Footnote 10]
Saia cannot be distinguished from the instant case on
the theory that it involved a criminal prosecution. It would be
foolish indeed, and contrary to the federal courts' declaratory
judgment authorization, 28 U.S.C. § 2201 (1982 ed., Supp. IV), to
require the Newspaper to place a newsrack on city property
illegally in order to obtain standing to challenge the ordinance.
Cf. Steffel v. Thompson, 415 U. S. 452
(1974).
[
Footnote 11]
Some have argued, unpersuasively, that preenforcement
challenges, like this one, unfairly deprive the city of the chance
to obtain a constitutional state court construction or to establish
a local practice. It is true that, when a state law has been
authoritatively construed so as to render it constitutional, or a
well understood and uniformly applied practice has developed that
has virtually the force of a judicial construction, the state law
is read in light of those limits. That rule applies even if the
face of the statute might not otherwise suggest the limits imposed.
Poulos v. New Hampshire, 345 U. S. 395
(1953). Further, this Court will presume any narrowing construction
or practice to which the law is "fairly susceptible."
Erznoznik
v. City of Jacksonville, 422 U. S. 205
(1975);
Broadrick v. Oklahoma, 413 U.
S. 601,
413 U. S.
617-618 (1973). But we have never held that a federal
litigant must await a state court construction or the development
of an established practice before bringing the federal suit.
Cf. Houston v. Hill, 482 U. S. 451
(1987) (declining to abstain or order certification to allow the
state courts to construe a criminal statute where the statute was
not fairly susceptible to a narrowing construction).
Once it is agreed that a facial challenge is permissible to
attack a law imposing censorship, nothing is gained by requiring
one actually denied a license to bring the action. Facial attacks,
by their nature, are not dependent on the facts surrounding any
particular permit denial. Thus, waiting for an alleged abuse before
considering a facial challenge would achieve nothing except to
allow the law to exist temporarily in a limbo of uncertainty, and
to risk censorship of free expression during the interim.
JUSTICE WHITE, with whom JUSTICE STEVENS and JUSTICE O'CONNOR
join, dissenting.
Today the majority takes an extraordinary doctrine, developed
cautiously by this Court over the past 50 years, and applies it to
a circumstance, and in a manner, that is without precedent. Because
of this unwarranted expansion of our previous cases, I dissent.
I
At the outset, it is important to set forth the general nature
of the dispute.
Page 486 U. S. 773
The Court quite properly does not establish any constitutional
right of newspaper publishers to place newsracks on municipal
property. The Court expressly declines to "pass" on the question of
the constitutionality of an outright municipal ban on newsracks.
Ante at
486 U. S. 762,
n. 7. My approach to the specific question before us, which differs
from that of the majority, requires me to consider this question;
and, as discussed below, our precedents suggest that an outright
ban on newsracks on city sidewalks would be constitutional,
particularly where (as is true here) ample alternative means of
24-hour distribution of newspapers exist. In any event, the Court's
ruling today cannot be read as any indication to the contrary:
cities remain free after today's decision to enact such bans.
Moreover, the Court expressly rejects the view, heretofore
adopted by some lower courts, that any local scheme that seeks to
license the placement of newsracks on public property is
per
se unconstitutional. [
Footnote
2/1] Cities "may require periodic licensing, and may even have
special licensing procedures for conduct commonly associated with
expression."
Ante at
486 U. S. 760.
It is only common sense that cities be allowed to exert some
control over those who would permanently appropriate city property
for the purpose of erecting a newspaper dispensing device.
My disagreement with the Court is not over the constitutional
status of newsracks or the more specific question of the propriety
of the licensing of such newspaper vending devices. The dispute in
this case is over a more "technical" question: what is the scope of
the peculiar doctrine that governs facial challenges to local laws
in the First Amendment area? The majority reads our cases as
holding that local licensing laws which have
"a close enough nexus to expression, or to conduct commonly
associated with expression, to
Page 486 U. S. 774
pose a real and substantial threat of [an] identified censorship
ris[k],"
will be considered invalid
"whenever [such a law] gives a government official . . .
substantial power to discriminate based on the content or viewpoint
of speech."
Ante at
486 U. S. 759.
This is true, the majority believes, whether or not the speaker can
prove that the official's power has been or will be used against
him; indeed, it is true even if the government official indicates a
willingness to abjure the use of such power (as is the case
here).
It is true that certain licensing laws that "giv[e] a government
official . . . substantial power to discriminate based on the
content or viewpoint of speech" are unconstitutional on their face
-- without any showing of actual censorship or discrimination, or
even without the potential licensee even making an application for
a license. But the sweep of this potent doctrine must be limited in
a way that is principled; one that is rooted in our precedents and
our history. The Court's statement that this doctrine applies
whenever the license law has "a close . . . nexus to expression, or
to conduct commonly associated with expression," is unduly broad.
The doctrine, as I see it, applies only when the specific conduct
which the locality seeks to license is protected by the First
Amendment. Because the placement of newsracks on city property is
not so protected (as opposed to the circulation of newspapers as a
general matter), the exception to our usual facial challenge
doctrine does not apply here.
II
Our prior cases, and an examination of the case before us,
indicate that the Lakewood ordinance is not invalid because it
vests "excessive discretion" in Lakewood's Mayor to grant or deny a
newsrack permit.
A
The Court has historically been reluctant to entertain facial
attacks on statutes,
i.e., claims that a statute is
invalid in all of its applications. Our normal approach has been to
determine
Page 486 U. S. 775
whether a law is unconstitutional as applied in the particular
case before the Court. [
Footnote
2/2] This rule is also the usual approach we follow when
reviewing laws that require licenses or permits to engage in
business or other activities. In
New York ex rel. Lieberman v.
Van De Carr, 199 U. S. 552
(1905), for example, plaintiff in error was convicted of selling
milk in New York City without a permit. Plaintiff in error claimed
before this Court that the licensing law vested arbitrary power in
an administrative board to select those who would be permitted to
sell milk. This Court's response was:
"[Prior] cases leave in no doubt the proposition that the
conferring of discretionary power upon administrative boards to
grant or withhold permission to carry on a trade or business which
is the proper subject of regulation within the police power of the
state is not violative of rights secured by the Fourteenth
Amendment. There is no presumption that the power will be
arbitrarily exercised, and, when it is shown to be thus exercised
against the individual, under sanction of state authority this
court has not hesitated to interfere for his protection, when the
case has come before it in such manner as to authorize the
interference of a Federal court."
Id. at
199 U. S.
562.
There being no showing that the law had been unconstitutionally
applied to plaintiff in error, his conviction was affirmed.
"One who is required to take out a license will not be heard to
complain, in advance of application, that there is a danger of
refusal. He should apply and see what happens. "
Page 486 U. S. 776
Highland Farms Dairy, Inc. v. Agnew, 300 U.
S. 608,
300 U. S.
616-617 (1937) (citations omitted). Other cases are to
the same effect. [
Footnote 2/3]
Thus, the usual rule is that a law requiring permits for specified
activities is not unconstitutional because it vests discretion in
administrative officials to grant or deny the permit. The
Constitution does not require the Court to assume that such
discretion will be illegally exercised.
Douglas v. Noble,
261 U. S. 165,
261 U. S. 170
(1923);
Lieberman, supra, at
199 U. S. 562.
[
Footnote 2/4]
There are, however, a few well established contexts in which the
Court has departed from its insistence on an as-applied approach to
constitutional adjudication. One of them is where a permit or
license is required to engage in expressive activities protected by
the First Amendment, and official discretion to grant or deny is
not suitably confined.
"In the area of freedom of expression, it is well established
that one has standing to challenge a statute on the ground that it
delegates overly broad licensing discretion to an administrative
office, whether or not his conduct could be proscribed by a
properly drawn statute, and whether or not he applied for a
Page 486 U. S. 777
license."
Freedman v. Maryland, 380 U. S. 51,
380 U. S. 56
(1965). [
Footnote 2/5] It is this
line of cases on which the majority draws to support its conclusion
that the Lakewood ordinance is unconstitutional on its face.
Ante at
486 U. S.
755-758.
The prevailing feature of these exceptional cases, however, is
that each of them involved a law that required a license to engage
in activity protected by the First Amendment. In each of the cases,
the expressive conduct which a city sought to license was an
activity which the locality could not prohibit altogether. Streets,
sidewalks, and parks are traditional public fora; leafletting,
pamphletting, and speaking in such places may be regulated,
Cox
v. New Hampshire, 312 U. S. 569,
312 U. S.
574-575 (1941);
Cantwell v. Connecticut,
310 U. S. 296,
310 U. S.
306-307 (1940); but they may not be entirely forbidden,
Jamison v. Texas, 318 U. S. 413
(1943);
Lovell v. Griffin, 303 U.
S. 444 (1938). Likewise, in
Freedman, supra, at
issue was a license requirement that was a prerequisite for any
exhibition of a film in the State of Maryland.
Id. at
303 U. S. 52-53,
and n. 1. In all of these cases, the scope of the local license
requirement included expressive activity protected by the First
Amendment.
See also 486 U. S.
infra.
This is how the cases themselves have defined the scope of
Lovell-Freedman doctrine. Such license requirements are
struck down only when they affect the "enjoyment of freedoms which
the Constitution guarantees."
See Staub v. Baxley,
355 U. S. 313,
355 U. S. 322
(1958). It is laws "subjecting the exercise of First Amendment
freedoms to" license requirements that we have found suspect,
see Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S.
150-151 (1969), not merely laws with some amorphous
"nexus" to expression.
For example, the
Lovell-Freedman line of cases would be
applicable here if the city of Lakewood sought to license the
distribution of all newspapers in the city, or if it required
licenses
Page 486 U. S. 778
for all stores which sold newspapers. These are obviously
newspaper circulation activities which a municipality cannot
prohibit and, therefore, any licensing scheme of this scope would
have to pass muster under the
Lovell-Freedman doctrine.
But -- and this is critical -- Lakewood has not cast so wide a net.
Instead, it has sought to license only the placement of newsracks
(and other like devices) on city property. As I read our
precedents, the
Lovell-Freedman line of cases is
applicable here only if the Plain Dealer has a constitutional right
to distribute its papers by means of dispensing devices or
newsboxes, affixed to the public sidewalks. I am not convinced that
this is the case.
B
Appellee has a right to distribute its newspapers on the city's
streets, as others have a right to leaflet, solicit, speak, or
proselytize in this same public forum area. But this "does not mean
that [appellee] can . . . distribute [its newspapers] where, when
and how [it] chooses."
See Breard v. Alexandria,
341 U. S. 622,
341 U. S. 642
(1951). More specifically, the Plain Dealer's right to distribute
its papers does not encompass the right to take city property -- a
part of the public forum, as appellee so vigorously argues -- and
appropriate it for its own exclusive use, on a semipermanent basis,
by means of the erection of a newsbox. [
Footnote 2/6] "The publisher of a newspaper . . .
Page 486 U. S. 779
has no special privilege to invade the rights and liberties of
others,"
Associated Press v. NLRB, 301 U.
S. 103,
301 U. S.
132-133 (1937); these protected "rights of others" have
always included the public-at-large's right to use the public forum
for its chosen activities, including free passage of the streets.
See Schneider v. State, 308 U. S. 147,
308 U. S. 160
(1939).
From the outset of its contemporary public forum cases, this
Court has recognized that city streets and sidewalks "have
immemorially been held in trust for use of the public."
Hague
v. CIO, 307 U. S. 496,
307 U. S. 515
(1939). This means
all of the public, and does not create
a First Amendment right in newspaper publishers to "cordon" off a
portion of the sidewalk in an effort to increase the circulation of
their papers.
Cf. Schneider, supra, at
308 U. S. 160.
As this Court wrote long ago, in upholding an ordinance that
restricted a telegraph company's placement of telegraph poles on
city property:
"The ordinary traveler, whether on foot or in a vehicle, passes
to and fro along the streets, and his use and occupation thereof
are temporary and shifting. . . . This use is common to all members
of the public, and it is a use open equally to [all] citizens. . .
. But the use made by
Page 486 U. S. 780
the telegraph company is, in respect to so much of the space as
it occupies with its poles, permanent and exclusive. . . . Whatever
benefit the public may receive in the way of transportation of
messages, that space is, so far as respects its actual use for
purposes of a highway and personal travel, wholly lost to the
public."
St. Louis v. Western Union Telegraph Co., 148 U. S.
92,
148 U. S. 98-99
(1893).
While there is a First Amendment right to publish newspapers,
publishers have no right to force municipalities to turn over
public property for the construction of a printing facility. There
is a First Amendment right to sell books, but we would not accept
an argument that a city must allow a bookseller to construct a
bookshop -- even a small one -- on a city sidewalk. The right to
leaflet does not create a right to build a booth on city streets
from which leafletting can be conducted. Preventing the "taking" of
public property for these purposes does not abridge First Amendment
freedoms. Just as there is no First Amendment right to operate a
bookstore or locate a movie theater however or wherever one
chooses, notwithstanding local laws to the contrary,
see Arcara
v. Cloud Books, Inc., 478 U. S. 697
(1986);
Renton v. Playtime Theatres, Inc., 475 U. S.
41 (1986), the First Amendment does not create a right
of newspaper publishers to take city streets to erect structures to
sell their papers.
It may be that newspaper distributors can sell more papers by
placing their newsracks on city sidewalks. But those seeking to
distribute materials protected by the First Amendment do not have a
right to appropriate public property merely because it best
facilitates their efforts. "We again reject the
notion that
First Amendment rights are somehow not fully realized unless they
are subsidized by the State.'" Regan v. Taxation with
Representation of Wash., 461 U. S. 540,
461 U. S. 546
(1983) (quoting Cammarano v. United States, 358 U.
S. 498, 358 U. S. 515
(1959) (Douglas, J., concurring)). Consequently,
Page 486 U. S. 781
a city need not subsidize news distribution activities by
giving, selling, or leasing a portion of city property for the
erection of newsracks.
"The State, no less than a private owner of property, has power
to preserve the property under its control for the use to which it
is lawfully dedicated."
Adderley v. Florida, 385 U. S. 39,
385 U. S. 47
(1966). Preserving public forum space for use by the public
generally, as opposed to the exclusive use of one
individual or corporation, is obviously one such "lawfully
dedicated" use. "The streets belong to the public, and are
primarily for the use of the public in the ordinary way."
Packard v. Banton, 264 U. S. 140,
264 U. S. 144
(1924).
To hold otherwise, and create a First Amendment right of
publishers to take city property to erect newsboxes, would ignore
the significant governmental interests of cities -- like Lakewood
-- that are threatened by newsrack placements. [
Footnote 2/7] One of these interests, discussed
supra at
486 U. S. 780,
is keeping the streets and sidewalks free for the use of all
members of the public, and not just the exclusive use of any one
entity. But this is not the only concern at issue here.
The Court has consistently recognized the important interest
that localities have in insuring the safety of persons using
Page 486 U. S. 782
city streets and public forums.
See Heffron v. International
Society for Krishna Consciousness, Inc., 452 U.
S. 640,
452 U. S. 650
(1981);
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 115
(1972);
Cox v. New Hampshire, 312 U.S. at
312 U. S. 574.
In this case, testimony at trial detailed a variety of potential
safety risks posed by newsboxes, running the gamut from the obvious
to the unimaginable. [
Footnote 2/8]
Based on such testimony, the District Court found that newsracks
"along the streets, . . . increas[e] the probability for accidents
and injury." App. to Juris. Statement A32. This finding was not
disturbed by the Court of Appeals, even as it reversed the District
Court's constitutional ruling.
A third concern is the protection of cities' recognized esthetic
interests. Lakewood and countless other American cities have
invested substantial sums of money to renovate their urban centers
and commercial districts. Increasingly,
Page 486 U. S. 783
they find newsracks to be discordant with the surrounding area.
[
Footnote 2/9] A majority of this
Court found that similar esthetic considerations would be
sufficient to justify a content-neutral ban on all outdoor
advertising signs, notwithstanding the extent to which such signs
convey First Amendment protected messages.
See Metromedia, Inc.
v. San Diego, 453 U. S. 490,
453 U. S.
507-508 (1981) (plurality opinion);
id. at
453 U. S.
552-553 (STEVENS, J., dissenting in part);
id.
at 559-561 (Burger, C.J., dissenting);
id. at
453 U. S. 570
(REHNQUIST, J., dissenting). This reasoning applies to newsracks as
well as billboards. "[T]he city's interest in attempting to
preserve the quality of urban life is one that must be accorded
high respect."
Young v. American Mini Theatres, Inc.,
427 U. S. 50,
427 U. S. 71
(1976) (opinion of Stevens, J.).
See also City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.
S. 789,
466 U. S.
806-807 (1984);
Kovacs v. Cooper, 336 U. S.
77 (1949).
We should be especially hesitant to recognize the right appellee
claims where, as is the case here, there are "ample alternative
channels" available for distributing newspapers.
See
Arcara, 478 U.S. at
478 U. S.
705-706, n. 2;
Perry Education Assn. v. Perry Local
Educators' Assn., 460 U. S. 37,
460 U. S. 53
(1983);
Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748,
425 U. S. 771
(1976). The District Court found that no person in Lakewood lives
more than a quarter-mile from a 24-hour newspaper outlet: either a
store open all night or a newsbox located on private property.
Page 486 U. S. 784
App. to Juris. Statement A27. Home delivery, the means by which
appellee distributes the vast majority of its newspapers,
id. at A26, is an option as well. The First Amendment does
not require Lakewood to make its property available to the Plain
Dealer so that it may undertake the most effective possible means
of selling newspapers.
See Heffron v. International Society for
Krishna Consciousness, Inc., supra, at
452 U. S.
647.
In sum, I believe that the First Amendment does not create a
right of newspaper publishers to take a portion of city property to
erect a structure to distribute their papers. There is no
constitutional right to place newsracks on city sidewalks over the
objections of the city.
C
Because there is no such constitutional right, the predicate for
applying the
Freedman v. Maryland line of cases,
see
supra at
486 U. S.
776-777, is not present in this case. Because the
Lakewood ordinance does not directly regulate an activity protected
by the First Amendment, we should instead take the traditional,
as-applied approach to adjudication exemplified by the
Lieberman line of cases. Appellee's facial challenge to
the Mayor's discretion under § 901.181(c)(7) should therefore be
rejected.
The Court offers three reasons for departing from this
time-tested approach for applying the
Lovell-Freedman
doctrine, and for substituting its new "nexus to expression" test.
I consider these three reasons in turn.
(1)
First, the majority seeks support for its rejection of the
foregoing analysis by comparing two previous decisions:
Saia v.
New York, 334 U. S. 558
(1948), and
Kovacs v. Cooper, supra. Saia struck
down a local ordinance vesting absolute discretion in a local
official over permits for the use of sound amplification trucks;
Kovacs upheld a local law which totally
Page 486 U. S. 785
banned the use of such trucks. Today's majority states that in
Kovacs, Saia was distinguished on grounds that support its
position here.
Ante at
486 U. S.
764-766.
The majority's reading of these two cases is flawed for several
reasons. First, the "rationale of
Kovacs" on which the
majority relies was not the Court's view at all, but rather, an
opinion for a three-Justice plurality.
See Kovacs, supra,
at
336 U. S. 78-89
(opinion of Reed, J.). In fact, four other Justices in
Kovacs understood the Court's action in that case in the
exact contrary manner --
i.e., as being a repudiation of
the earlier decision in
Saia. See Kovacs, supra,
at
336 U. S. 97-98
(Jackson, J., concurring);
id. at
336 U. S.
101-102 (Black, Douglas, and Rutledge, JJ., dissenting).
Thus, the majority's explanation of how a comparison of
Kovacs and
Saia support its conclusion rests on a
view of those two cases that was rejected by more Justices than
accepted it at the time that
Kovacs was decided.
An equally plausible reading of
Saia is the one that a
plurality of Justices took when revisiting the sound-truck question
in
Kovacs: Saia rested on the "assumption" -- later proved
erroneous in
Kovacs -- that a municipality could not ban
sound trucks altogether.
Saia repeatedly suggests that a
"ban" on sound trucks would not pass constitutional muster.
See 334 U.S. at
334 U. S. 562.
Cf. also id. at
334 U. S.
559-560,
334 U. S. 561.
And the Court in
Saia indicated that it was moved by its
view that sound-trucks were "indispensable instruments of effective
public speech."
Id. at
334 U. S.
561.
Since
Saia's underlying premise was called into
question in
Kovacs, 336 U.S. at
336 U. S. 97-98
(Jackson, J., concurring);
id. at
336 U. S.
101-102 (Black, J., dissenting), at the very least, the
majority's
Saia-Kovacs comparison is a shaky foundation
for the departure from prior precedent which the Court now
undertakes.
(2)
Second, the Court incorrectly suggests that I rely on the
now-discredited "greater-includes-the-lesser" formulation of
Justice Holmes, as adopted by this Court in
Davis v.
Massachusetts,
Page 486 U. S. 786
167 U. S. 43
(1897).
Ante at
486 U. S.
762-766. The majority then engages in a detailed
analysis of cases having no applicability here whatsoever,
ante at 766-767, to slay this strawman of its own
creation.
As defined at its inception, "greater-includes-the-lesser"
reasoning holds that, where a State or municipality may ban an
activity altogether, it is consequently free "to determine under
what circumstances such [activity] may be availed of, as the
greater power contains the lesser."
See Davis, supra, at
167 U. S. 48. But
if, for example, a Lakewood ordinance provided for the issuance of
newsrack licenses to only those newspapers owned by persons of a
particular race, or only to members of a select political party,
such a law would be clearly violative of the First Amendment (or
some other provision of the Constitution), and would be facially
invalid. And if the Mayor of Lakewood granted or refused license
applications for similar improper reasons, his exercise of the
power provided him under § 901.181(c)(7) would be susceptible to
constitutional attack. Thus, I do not embrace the
"greater-includes-the-lesser" syllogism -- one that this Court
abandoned long ago.
Cf. Hague v. CIO, 307 U.S. at
307 U. S.
515.
Instead, my view is simply this: where an activity that could be
forbidden altogether (without running afoul of the First Amendment)
is subjected to a local license requirement, the mere presence of
administrative discretion in the licensing scheme will not render
it invalid
per se. In such a case -- which does not
involve the exercise of First Amendment protected freedoms -- the
Lovell-Freedman doctrine does not apply, and our usual
rules concerning the permissibility of discretionary local
licensing laws (and facial challenges to those laws) must
prevail.
(3)
Finally, the Court asserts that I do not understand the nature
of the conduct at issue here.
Ante at
486 U. S. 768.
It is asserted that "[t]he actual
activity' at issue here is
the circulation
Page 486 U. S.
787
of newspapers, which is constitutionally protected."
Ibid. But of course, this is wrong. Lakewood does not, by
its ordinance, seek to license the circulation of newspapers within
the city. In fact, the Lakewood ordinance does not even require
licenses of all newsracks within the jurisdiction -- the many
newsracks located within Lakewood on private property are not
included within the scope of the city's ordinance. See
App. 373-374. Thus, it is the majority -- and not I -- that is
guilty of "recharacterizing" the activity that Lakewood licenses.
The Lakewood ordinance must be considered for what it is: a license
requirement for newsracks on city property.
This is why, notwithstanding the Court's intimations to the
contrary,
ante at
486 U. S. 766-769, my approach would not change the
outcome of our previous cases in this area. In those cases, the
local law at issue required licenses -- not for a narrow category
of expressive conduct that could be prohibited -- but for a
sweeping range of First Amendment protected activity. Thus, the law
at issue in
Shuttlesworth v. Birmingham, 394 U.S. at
394 U. S. 149,
required a license for "any parade"; the license scheme under
attack in
Freedman v. Maryland, 380 U.S. at
380 U. S. 52-53,
and n. 1, applied to all films shown in the State of Maryland; the
law at issue in
Lovell v. Griffin, 303 U.S. at
303 U. S. 451,
applied to any distribution of leaflets or pamphlets within the
city limits. Surely, even at the extreme level of abstraction at
which the Court operates in its opinion, the majority can recognize
a difference between the scope and dangers of these laws and
Lakewood's more focused regulation.
See also 486
U.S. 750fn2/13|>n. 13,
infra.
III
I now address the rule of decision the majority offers.
A
Instead of the relatively clear rule that the Court's prior
cases support, the majority today adopts a more amorphous measure
of when the
Lovell-Freedman doctrine should apply.
Page 486 U. S. 788
As I see it, the Court's new "nexus to expression, or to conduct
commonly associated with expression" test is peculiarly
troublesome, because it is of uncertain scope and vague
expanse.
The Court appears to stop short of saying that any statute that
delegates discretionary administrative authority that has the
potential to be used to suppress speech is unconstitutional. A
great variety of discretionary power may be abused to limit freedom
of expression, yet that does not mean that such delegations of
power are facially invalid.
See Hoffman Estates v. The
Flipside, Hoffman Estates, Inc., 455 U.
S. 489,
455 U. S.
503-504 (1982). [
Footnote
2/10]
The new Lakewood ordinance enacted in tandem with § 901.181
illustrates this principle well. As discussed
ante at
486 U. S.
753-754, when the District Court invalidated Lakewood's
complete ban on all structures on city property (then § 901.18 of
the city code), the city enacted two new ordinances. One, §
901.181, provides for licensing newsracks on city property -- the
subject of this appeal. The second, § 901.18, gives the City
Council
unlimited discretion to grant or deny applications
for all other exclusive uses of city property. App. 266-267.
Someone who wishes to apply for permission under § 901.18 to erect
a soft drink vending machine on city property may fear that his
application will be denied because
Page 486 U. S. 789
he has engaged in some First Amendment protected activities
which are not to the City Council's liking. These fears may even be
substantial, and they may be based on facts eminently provable in a
courtroom;
e.g., that the applicant opposed a City
Councilwoman in her last election campaign. Yet surely § 901.18 is
not invalid on its face merely because it creates the possibility
that the discretion accorded therein to the City Council could be
abused in the way that the soft-drink vending machine applicant
fears.
Cf. Grayned v. City of Rockford, 408 U.S. at
408 U. S. 121,
n. 50;
Euclid v. Ambler Realty Co., 272 U.
S. 365,
272 U. S.
395-396 (1926).
Seeking a way to limit its own expansive ruling, the Court
provides two concrete examples of instances in which its newly
crafted "nexus to expression" rule will not strike down local
ordinances that permit discretionary licensing decisions. First, we
are told that a law granting unbridled discretion to a mayor to
grant licenses for soda machine placements passes constitutional
muster because it does not give that official "frequent
opportunities to exercise substantial power over the content or
viewpoint of the vendor's speech."
Ante at
486 U. S. 761.
How the Court makes this empirical assessment, I do not know. It
seems to me that the nature of a vendor's product -- be it
newspapers or soda pop -- is not the measure of how potent a
license law can be in the hands of local officials seeking to
control or alter the vendor's speech. Of course, the newspaper
vendor's speech is likely to be more public, more significant, and
more widely known than the soda vendor's speech -- and therefore
more likely to incur the wrath of public officials. But in terms of
the "usefulness" of the license power to exert control over a
licensee's speech, there is no difference whatsoever between the
situation of the soda vendor and the newspaper vendor. [
Footnote 2/11]
Page 486 U. S. 790
If the Court's treatment of the soda machine problem is not
curious enough, it also "assures" us that its ruling does not
invalidate local laws requiring, for example, building permits --
even as they apply to the construction of newspaper printing
facilities. These laws, we are told, provide "too blunt a
censorship instrument to warrant judicial intervention."
Ante at
486 U. S. 761.
Thus, local "laws of general application that are not aimed at
conduct commonly associated with expression" appear to survive the
Court's decision today.
Ante at
486 U. S.
760-761.
But what if Lakewood, following this decision, repeals local
ordinance § 901.181 (the detailed newsrack permit law) and simply
left § 901.18 (the general ordinance concerning "any . . .
structure or device" on city property) on the books? That section
vests absolute discretion (without any of the guidelines found in §
901.181) in the City Council to give or withhold permission for the
erection of devices on city streets. Because this law is of
"general application," it should survive scrutiny under the Court's
opinion -- even as applied to newsracks. If so, the Court's opinion
takes on an odd "the-greater-but-not-the-lesser" quality: the more
activities that are subjected to a discretionary licensing law, the
more likely that law is to pass constitutional muster.
B
As noted above, our tradition has been to discourage facial
challenges, and rather, to entertain constitutional attacks on
local laws only as they are applied to the litigants. The facts of
this case indicate why that policy is a prudent one.
Most importantly, there could be no allegation in this case that
the Mayor's discretion to deny permits
actually has been
abused to the detriment of the newspaper, for the Plain
Page 486 U. S. 791
Dealer has not applied for a permit for its newsracks under §
901.181. App. to Juris. Statement A30. Indeed, the District Court
found that the "Mayor stands ready and willing to permit
coin-operated newspaper dispensing devices in the commercial areas
of the City" pursuant to the ordinance.
Ibid. It also
found that the
"only reason why the [appellee] has not placed newspaper
dispensing devices along the streets of Lakewood, where permitted,
is that the [appellee] has not applied for such use."
Id. at A32.
Indicative of the true nature of this litigation is the fact
that the city of Lakewood has had on the books, since January 1987,
an interim ordinance that licenses the placement of newsracks on
city property -- an ordinance that is free of the constitutional
defects challenged here. Eighteen months have passed since the
interim ordinance was enacted, and the Plain Dealer apparently
still has not applied for a license to place its newsracks on city
property. [
Footnote 2/12] Thus,
the Court, with a strange rhetorical flourish, belittles the
usefulness of judicial review as a tool to control the Mayor's
discretion in granting newsrack licenses because newspaper
publishers and their reading public cannot afford to await the
results of the judicial process.
Ante at
486 U. S. 771.
"[N]ewspaper publishers
Page 486 U. S. 792
can[not] wait indefinitely for a permit" and "a paper needs
public access at a particular time," we are remonstrated.
Ante at
486 U. S.
771-772. Yet the Plain Dealer has eschewed the
availability of a wholly constitutional permit for its newsracks
for a year and a half.
The Court mentions the risk of censorship, the ever-present
danger of self-censorship, and the power of prior restraint to
justify the result.
See, e.g., ante at
486 U. S.
757-759,
486 U. S.
767-768. Yet these fears and concerns have little to do
with this case, which involves the efforts of Ohio's largest
newspaper to place a handful of newsboxes in a few locations in a
small suburban community. Even if one accepts the testimony of
appellee's own expert, it seems unlikely that the newsboxes at
issue here would increase the Plain Dealer's circulation within
Lakewood by more than a percent or two; the paper's overall
circulation would be affected only by about one one-hundredth of
one percent (0.01%).
See App. 82-84, 214.
It is hard to see how the Court's concerns have any
applicability here. And it is harder still to see how the Court's
image of the unbridled local censor, seeking to control and direct
the content of speech, fits this case. In the case before us, the
city of Lakewood declined to appeal an adverse ruling against its
ban on newsracks, and instead amended its local laws to permit
appellee to place its newsboxes on city property.
See id.
at 270-274. When the nature of this ordinance was not to the Plain
Dealer's liking, Lakewood again amended its local laws to meet the
newspaper's concerns.
See id. at 275. Finally, when the
newspaper, still disgruntled, won a judgment against Lakewood from
the Court of Appeals, the city once again amended its ordinance to
address the constitutional issues.
See App. to Brief for
Appellee A56-A59. The Court's David and Goliath imagery concerning
the balance of power between the regulated and
Page 486 U. S. 793
the regulator in this case is wholly inapt -- except, possibly,
in reverse. [
Footnote 2/13]
IV
Because, unlike the Court, I find that the Lakewood ordinance is
not invalid by virtue of the discretion it vests in the city's
Mayor, I must reach the question of whether the law is invalid for
the other reasons the Court of Appeals cited. I conclude that it is
not.
A
A similar analysis to the one I suggest in Parts II and III,
supra, applies to Lakewood ordinance § 901.181(a),
concerning the Architectural Review Board. Appellee argues
Page 486 U. S. 794
that this ordinance provision, like the one giving discretion to
the Mayor to grant or deny permit applications, vests excessive and
unbridled discretion in the Board, and thereby is violative of the
First Amendment. But for the reasons that I concluded,
supra, at 784, that § 901.181 does not directly regulate
activity protected by the First Amendment, I think this facial
challenge to the Architectural Review Board's role under the
ordinance must fail as the challenge to § 901.181(c)(7) did.
Section 901.181(a) does not fall simply because the Board
may find a way to use its discretion to suppress
speech.
The fallacy of the Plain Dealer's argument to the contrary is
exposed by considering its full implications. Under Lakewood
Codified Ordinance § 1325.04, the Architectural Review Board has
discretion to approve or reject designs for "
all new
construction . . . within the City."
See App. 386
(emphasis added). If we were to accept the Plain Dealer's analysis
that any potentially speech-suppressing discretion renders a local
law facially invalid, we would have to strike § 1325 as well: after
all, the Board could use its discretion under that ordinance to
punish or chill the speech of any person in the city seeking to
construct a new building. [
Footnote
2/14] Yet this mere possibility is not sufficient to invalidate
§ 1325. Likewise, the potential for abuse under § 901.181(a) --
which simply subjects newsracks to the same architectural review
applied to all other structures erected in Lakewood -- is not
sufficient to invalidate that provision either.
The First Amendment does not grant immunity to the Plain Dealer
from the city's general laws regulating businesses that operate
therein. "The publisher of a newspaper
Page 486 U. S. 795
has no special immunity from the application of general laws."
Associated Press v. NLRB, 301 U.S. at
301 U. S. 132;
see also, e.g., Citizen Publishing Co. v. United States,
394 U. S. 131,
394 U. S. 139
(1969);
Oklahoma Press Publishing Co. v. Walling,
327 U. S. 186,
327 U. S.
192-193 (1946). The District Court found that Lakewood
has applied its architectural review process to all new
construction in the city. App. to Juris. Statement A36. According
to the city, bookstores, theaters, and churches under construction
or renovation have all been required to obtain board approval for
their construction.
See Brief for Appellant 37-38. To hold
that all structure where First Amendment protected activities take
place are somehow exempt from this normal local regulation would be
anomalous and contrary to our precedents.
See Young v. American
Mini Theatres, Inc., 427 U.S. at
427 U. S.
62.
The Court of Appeals, 794 F.2d 1139, 1146 (CA6 1986), thought it
significant that the Board had no specific standards applying to
newsrack designs, but rather, had only general architectural
standards applicable to "buildings." Of course, this basis for
disapproval is particularly ironic, since the "narro[w] and
specifi[c]" focus of § 901.181 on the placement of newsracks is one
reason why this Court finds that law to be suspect.
Ante
at
486 U. S. 760.
Consequently, with respect to a future ordinance free from the
defect the Court finds fault with today, the city of Lakewood finds
itself between a rock and a hard place: make the rules
newsrack-specific, and be accused of drawing the noose too tightly
around First Amendment protected activities; apply more general
rules to newsracks, and be told that your regulators lack standards
sufficiently specific to pass constitutional muster.
The conundrum is unfortunate. Simply because a newspaper may
find new ways to distribute its papers, via semipermanent
structures that are not "buildings," should not permit the
publisher to escape otherwise all-inclusive city regulation.
Section 901.181(a) simply takes the rule that applies generally to
all new structures in Lakewood and extends it to cover the
structures at issue here: newsracks.
Page 486 U. S. 796
Newsracks have no First Amendment right to be placed on city
streets with disregard for these important economic and esthetic
concerns, or to contribute to the "visual blight" cities are
working so hard to eradicate.
See Vincent, 466 U.S. at
466 U. S.
810.
Finally, the Court's opinion provides substantial support for
the view that Lakewood's Architectural Review Board requirement is
constitutional. As I noted,
supra at
486 U. S. 790,
the Court today holds that laws of general application are not
invalid due to excessive discretion, even when they are applied to
expressive activities.
Ante at
486 U. S.
760-761. Since the architectural review requirement is
such a law of general application, it appears to me that the
Court's opinion implicitly sustains the constitutionality of the
imposition of this requirement on appellee's newsboxes. Moreover,
since this portion of the Lakewood ordinance only requires the
approval of the Architectural Review Board on a single occasion, at
the time of the initial adoption of a particular newsbox design, I
think it is clearly encompassed within the Court's discussion of
permissible building permit laws.
Ibid.
B
The final disputed provision of the Lakewood ordinance, §
901.181(c)(5), requires that newsrack owners indemnify the city for
"any and all liability . . . occasioned upon the installation and
use" of any newsrack. It also requires newsrack permittees to
obtain liability insurance in the amount of $100,000 to cover any
such liability.
The city's reasons for imposing such requirements are obvious.
Under Ohio law, a municipality has no sovereign immunity, and "is
liable for its negligence in the performance or nonperformance of
its acts."
Haverlack v. Portage Homes, Inc., 2 Ohio St.3d
26, 30, 442 N.E.2d 749, 752 (1982);
cf. Dickerhoof v.
Canton, 6 Ohio St.3d 128, 451 N.E.2d 1193 (1983). While there
is some dispute between the parties as to how substantial is the
city's risk of being held liable for an injury caused by a newsbox
located on city property, there
Page 486 U. S. 797
remains sufficient risk to suggest that avoiding such liability
is a legitimate concern of Lakewood's City Council.
In fact, appellee acknowledges that, standing alone, the city's
indemnification and insurance requirements would be constitutional;
the Plain Dealer recognizes that there is no constitutional bar to
requiring newspaper distributors to meet such requirements.
[
Footnote 2/15] Nor does it argue
that such insurance policies are unobtainable, or make the use of
newsboxes economically infeasible. [
Footnote 2/16] Rather, appellee argues (and the Court
of Appeals found), that this provision is invalid because it
applies to newsracks and not other "users" of the public streets.
794
Page 486 U. S. 798
F.2d at 1147.
This Court has consistently held that "differential treatment .
. . [for] the press . . . is presumptively unconstitutional."
See Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575,
460 U. S. 585
(1983). Yet, in this case, I find this argument inapposite and
unpersuasive. First, it ignores the obvious difference between
those on-street objects that are essential to the public safety and
welfare -- such as bus shelters, telephone and electric wiring
poles, and emergency phone boxes -- and the preferred distribution
means of a private newspaper company, the Plain Dealer's newsboxes.
Judge Unthank, in concurrence below, recognized the difference
between these "public services of a quasi-governmental nature," and
appellee's newsracks. 794 F.2d at 1148. I also find the difference
to be a significant one. [
Footnote
2/17]
Until this litigation ensued, a Lakewood ordinance banned the
construction of any new structure on city property. The new
ordinances, adopted in response to the initial District Court
decision below, which allow such structures, do explicitly require
insurance from newsrack-permittee holders, while being silent on
this question with respect to other potential permittees on public
land.
Compare § 901.181(c)(5)
with § 901.18. But
there is nothing in the record to suggest that the city would not
require such insurance of any applicant under § 901.18.
Cf.
Gannett Satellite Information Network, Inc. v. Metropolitan
Transportation Authority, 745 F.2d 767, 773-774 (CA2 1984);
see also ante at
486 U. S. 755,
n. 3. If the city does begin to treat nonpress permittees more
favorably than newsrack permittees, the Plain Dealer may have a
valid constitutional challenge to § 901.181(c)(5) at that time. But
I am unwilling to imply that such will be the city's practice based
on the record before us.
See Renton v. Playtime Theatres,
Inc., 475 U.S. at
475 U. S. 53.
Consequently, I would reject appellee's facial challenge to §
901.181(c)(5).
Page 486 U. S. 799
V
For the foregoing reasons, I dissent from the Court's opinion
and its judgment in this case. I would reverse the Court of
Appeals' decision invalidating the Lakewood ordinance.
[
Footnote 2/1]
See, e.g., Minnesota Newspaper Assn. v. Minneapolis, 9
Med.L.Rptr. 2116, 2122-2123 (DC Minn.1983);
Gannett Co. v. City
of Rochester, 69 Misc.2d 619, 330 N.Y.S.2d 648 (1972).
[
Footnote 2/2]
See, e.g., Brockett v. Spokane Arcades, Inc.,
472 U. S. 491,
472 U. S.
501-503 (1985);
United States v. Grace,
461 U. S. 171,
461 U. S. 175
(1983);
Nixon v. Administrator of General Services,
433 U. S. 425,
433 U. S.
438-439 (1977);
Joseph E. Seagram & Sons, Inc.
v. Hostetter, 384 U. S. 35,
384 U. S. 52
(1966);
United States v. Raines, 362 U. S.
17,
362 U. S. 20-24
(1960);
Watson v. Buck, 313 U. S. 387,
313 U. S. 402
(1941).
[
Footnote 2/3]
See, e.g., Independent Warehouses, Inc. v. Scheele,
331 U. S. 70,
331 U. S. 88
(1947);
Smith v. Cahoon, 283 U. S. 553,
283 U. S. 562
(1931);
Douglas v. Noble, 261 U.
S. 165,
261 U. S. 170
(1923);
Plymouth Coal Co. v. Pennsylvania, 232 U.
S. 531,
232 U. S.
544-545 (1914);
Bradley v. Richmond,
227 U. S. 477,
227 U. S.
482-483 (1913);
Western Union Telegraph Co. v.
Richmond, 224 U. S. 160,
224 U. S. 168
(1912);
Fischer v. St. Louis, 194 U.
S. 361,
194 U. S. 371
(1904);
Baer v. City of Wauwatosa, 716 F.2d 1117,
1123-1124 (CA7 1983);
Spanish International Broadcasting Co. v.
FCC, 128 U.S.App.D.C. 93, 104, 385 F.2d 615, 626 (1967);
Wallach v. City of Pagedale, 376 F.2d 671, 674-675 (CA8
1967).
[
Footnote 2/4]
Confining our attention to the actual impact of a law upon the
complaining party is a policy of restraint that rests upon the
time-tested advisability of having concrete, rather than
hypothetical, cases before us. As a general proposition, we can
arrive at informed judgments only when we have a record showing the
actual impact of the challenged statute.
Much the same approach underlies the case-or-controversy
requirement of Article III. As-applied adjudication also serves the
end of deciding no more than necessary to dispose of the specific
case under submission and of avoiding unnecessary confrontations
with Congress and state or local legislators.
Cf. Ashwander v.
TVA, 297 U. S. 288,
297 U. S.
346-348 (1936).
[
Footnote 2/5]
See also e.g., Secretary of State of Maryland v. Joseph H.
Munson Co., 467 U. S. 947,
467 U. S. 964,
n. 12 (1984);
Shuttlesworth v. Birmingham, 394 U.
S. 147,
394 U. S. 151
(1969);
Cox v. Louisiana, 379 U.
S. 536,
379 U. S.
557-558 (1965);
Staub v. Baxley, 355 U.
S. 313,
355 U. S. 319
(1958).
[
Footnote 2/6]
Appellee resists this "characterization" of its placement of
newsboxes on city property, arguing that it is not seeking to
"ren[t]" or have "permanently set aside" portions of the sidewalk
for its newsracks.
See Tr. of Oral Arg. 37, 47. Rather,
appellee contends, it is merely seeking to exercise its "First
Amendment right" to distribute newspapers by means of a newsrack,
"the mechanical cousin" of the traditional means of selling papers
on city streets, the "newsboy."
See Brief for Appellee 10;
cf. NLRB v. Hearst Publications, Inc., 322 U.
S. 111,
322 U. S.
115-116 (1944).
This "characterization" of its activities is unpersuasive. While
newsboxes may not be "permanent" structures in the way that
buildings are, they are not a peripatetic presence either.
See Tr. of Oral Arg. 37-38;
cf. McDonald v. Gannett
Publications, 121 Misc.2d 90, 90-91, 467 N.Y.S.2d 300, 301
(1983); Editor & Publisher, Apr. 9, 1983, p. 8., col. 1
(discussing "bolting" of newsracks to city sidewalks). Here, the
District Court found that the
"placement of a newspaper dispensing device on property is
normally of a permanent nature, the device generally occupying a
specific portion of property for months or years."
App. to Juris. Statement A30-A31.
There is little doubt that, if a State were to place an object
of the size, weight, and permanence of a newsrack on private
property, this "physical occupation" would constitute a "taking" of
that property.
See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U. S. 419,
458 U. S.
427-430,
458 U. S.
434-435 (1982);
Lovett v. West Virginia Central Gas
Co., 65 W.Va. 739, 742-743, 65 S.E. 196, 197-198 (1909);
Southwestern Bell Telephone Co. v. Webb, 393 S.W.2d
117, 121 (Mo.App.1965). The character of the newsrack's
intrusion on city sidewalks is not lessened by the fact that the
property here is public, the occupation is by a private party, or
that the purpose of the "taking" is the communication of ideas.
See generally St. Louis v. Western Union Telegraph Co.,
148 U. S. 92,
148 U. S. 98-99
(1893) (discussed in text
infra this page and
486 U. S.
780).
[
Footnote 2/7]
The conflict between cities' efforts to protect important public
interests and the desire of publishers to place newsracks on city
property no doubt accounts for the recent spate of litigation in
the lower courts over the constitutionality of city regulation of
newsracks.
See, e.g., Gannett Satellite Information Network,
Inc. v. Metropolitan Transportation Authority, 745 F.2d 767
(CA2 1984);
Miami Herald Publishing Co. v. Hallandale, 734
F.2d 666 (CA11 1984);
Providence Journal Co. v. City of
Newport, 665 F.
Supp. 107 (RI 1987);
Gannett Satellite Information Network,
Inc. v. Norwood, 579 F.
Supp. 108 (Mass.1984);
City of New York v. American School
Publications, Inc., 69
N.Y.2d 576, 509 N.E.2d 311 (1987);
Burlington v. New York
Times Co., 148 Vt. 275,
532 A.2d 562
(1987);
News Printing Co. v. Totowa, 211 N.J.Super. 121,
511 A.2d 139 (1986).
See also Ball, Extra! Extra! Read
All About It: First Amendment Problems in the Regulation of
Coin-Operated Newspaper Vending Machines, 19 Colum. J.L. &
Soc.Probs. 183, 185-187 (1985).
[
Footnote 2/8]
A city official testifying at trial reported numerous incidents
where objects located in the sidewalk areas where appellee wishes
to erect its newsboxes -- signposts, signal poles, and utility
poles -- were hit by cars, bicycles, or pedestrians. App. 144-145.
A vehicle may strike a newsrack on a city sidewalk, injuring its
occupants or passersby.
Cf. Tua v. Brentwood Motor Coach
Co., 371 Pa. 570, 92 A.2d 209 (1952). Cars may stop so that
their drivers can purchase papers from newsracks, increasing the
traffic hazards of city driving. App. 89, 124-128.
Other testimony at trial and exhibits introduced there described
newsracks restricting pedestrian traffic, blocking ramps for the
handicapped, or being too near fire hydrants.
Id. at
151-154; Defendant's Exs. GG-1, GG-7, GG-9, App. 391-393. Even a
one-on-one encounter with a seemingly benign newsrack has its
risks.
Cf. McDermott v. Engstrom, 81 So. 2d
553 (Fla.1955). Indeed, appellee's newspaper reported recently
that a man had received a serious electrical shock when he
approached a newsrack, apparently resulting from the fact that the
bolts used to anchor the newsrack to the ground had penetrated an
electrical power line.
See Are These Streets for Walking?,
The Plain Dealer, July 3, 1987, p. 12-A, cols. 1-2;
see
also N.Y. Times, Nov. 14, 1986, p. A14, col. 5; Editor &
Publisher, Apr. 16, 1983, p. 13, cols. 1-2.
[
Footnote 2/9]
One article introduced at trial in this case discussed growing
frustration among local officials with rapidly escalating numbers
of newsracks on city streets.
See Longhini, Coping with
High-Tech Headaches, 50 Planning Contents 31-32 (Mar.1984).
Esthetic problems are among the chief complaints.
See id.
at 31.
Many other accounts have quoted city officials and city
residents expressing dismay over newspaper distributors' seeming
disregard for local esthetic concerns and standards.
See,
e.g., Editor & Publisher, Sept. 8, 1984, p. 11, cols. 1-3;
N.Y. Times, Aug. 22, 1984, p. A12, cols. 3-5, Editor &
Publisher, May 28, 1983, p. 43, col. 1.
[
Footnote 2/10]
For example, the power to hire and fire public employees can be
abused to suppress discussion on matters of public concern,
see, e.g., Rankin v. McPherson, 483 U.
S. 378 (1987), but that does not render facially invalid
all laws that give public employers discretion to hire and fire.
The plenary power given state public utility commissions to
regulate local utilities too can be misused to infringe on
protected speech rights,
see Pacific Gas & Electric Co. v.
Public Utilities Comm'n of Cal., 475 U. S.
1,
475 U. S. 10-15
(1986);
Consolidated Edison Co. of N.Y. v. Public Service
Comm'n of N.Y., 447 U. S. 530,
447 U. S.
533-535 (1980), but that does not render the statutes
granting such regulatory power facially infirm. Even the power to
grant or deny liquor licenses can be abused in violation of the
First Amendment,
cf. Reed v. Village of Shorewood, 704
F.2d 943, 949-951 (CA7 1983), but this does not
per se
invalidate all local liquor laws.
[
Footnote 2/11]
Indeed, in practical terms, if two businesses contemplated the
prospect of standing before Lakewood's officials to seek vending
machine permits -- a sole proprietorship, seeking a license for a
soda machine that is the only source of the owner's income, and the
Plain Dealer Publishing Co., seeking licenses for newsracks -- I
have little doubt about which applicant would be more likely to
feel constrained to alter its expressive conduct in anticipation of
the encounter.
[
Footnote 2/12]
The discussion of the interim ordinance at oral argument
highlights this point:
"QUESTION: Well, then, while [the interim] ordinance is in
effect, have you gone ahead and installed some boxes?"
"MR. GARNER [Appellees' Counsel]: No, we have not, Your
Honor."
"QUESTION: Why not?"
"MR. GARNER: We thought, as I suggested earlier, we think this
is a very important case, and from the Plain Dealer's immediate
standpoint, certainly -- "
"QUESTION: In other words, you'd rather win the lawsuit then get
the boxes out there."
"MR. GARNER: Yes, that's correct, Your Honor. . . ."
Tr. of Oral Arg. 43-44.
See also 486
U.S. 750fn2/13|>n. 13,
infra (comparing this case
to
Freedman v. Maryland, 380 U. S. 51
(1965), and
Shuttlesworth v. Birmingham, 394 U.
S. 147 (1969)).
[
Footnote 2/13]
It should be noted that several aspects of the particular
ordinance at issue here diminish the possibility that it will
result in the general abuses that the majority fears. These factors
also distinguish the Lakewood ordinance from the local licensing
laws under consideration in the cases that the Court relies on it
its opinion.
First, unlike many regulatory schemes we have struck down in the
past,
cf., e.g., Shuttlesworth v. Birmingham, supra, at
394 U. S.
149-150,
394 U. S. 153,
394 U. S.
157-158, § 901.181 requires that the Mayor state the
reasons for any denial of a newsrack permit application. This
statement of reasons should facilitate review of the Mayor's
decision, and help to insure that it does not rest on an
unconstitutional rationale.
Second, the availability of such review of mayoral decisions is
another distinguishing aspect of the ordinance.
Cf., e.g.,
Staub v. Baxley, 355 U.S. at
355 U. S. 325.
Section 901.181(e), allows (in the first instance) appeal to the
City Council of any unfavorable mayoral decision. Then, if this
appeal is unsuccessful, a dissatisfied applicant can seek relief
from the Ohio courts under state law. Ohio Rev.Code Ann. § 2506.01
et seq. (Supp.1987). These appeals provide assurance that
any abuse of the Mayor's discretion under the Ordinance is unlikely
to go unremedied.
Finally, the Court ignores the fact that the license that
appellee seeks is not for conducting an activity (such as showing
films or organizing a parade) for which a "most propitious
opportunity for exhibition [may] pas[s],"
Freedman, supra,
at
380 U. S. 61,
but rather for the erection of a semipermanent structure on city
property. Thus, the administrative and judicial appeals processes
made available by city and state laws can serve as a more effective
check on the Mayor's decisionmaking, with less of a burden on the
permit-applicant, than was the case in
Freedman or
Shuttlesworth.
[
Footnote 2/14]
Not only would Lakewood's ordinance fall to such a challenge,
but so too would countless other local laws that grant
Architectural Review Boards substantial discretion to approve the
construction plans of applicants who may fear reprisal for the
exercise of their First Amendment rights, or who wish to construct
some structure in which First Amendment protected activities will
take place.
See App. B to Brief for National Institute of
Municipal Law Officers as
Amicus Curiae.
[
Footnote 2/15]
The following excerpt from oral argument makes this point
clear:
"QUESTION: [Y]ou assert that it is not possible under the First
Amendment for the city to require indemnity insurance for those
devices? I think that is a remarkable proposition."
"MR. GARNER [Appellee's Counsel]: No, I am not suggesting that,
Your Honor. No. No, I am not suggesting that. . . ."
Tr. of Oral Arg. 48.
[
Footnote 2/16]
Nor could the Plain Dealer so argue. Lakewood introduced as
exhibits at trial copies of $1 million liability insurance policies
(10 times the amount required by ordinance § 901.181(c)(5)) that
the Plain Dealer obtained for the benefit of 11 other cities in
Ohio -- including the city of Cleveland -- where it has located
newsracks on public property. App. 401.
[
Footnote 2/17]
In addition, it may be beyond Lakewood's control to impose
indemnity and insurance requirements on those entities that have
structures on public property that predate the city's recent
legislation. According to appellant, many of these placements of
utility poles, signal boxes, and the like are on property obtained
by utilities from the city via easement grants several decades old.
See Tr. of Oral Arg. 28.
The city contended at argument (without dispute from the Plain
Dealer) that it is Lakewood's policy to place indemnification and
insurance requirements in all city rental contracts at this time.
See ibid. Henceforth, then, the preexisting
nonindemnifying structures on city property will become the
"isolated exceptions, and not the rule."
See Minneapolis Star
& Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.
S. 575,
460 U. S. 583,
n. 5 (1983);
cf. Oklahoma Press Publishing Co. v. Walling,
327 U. S. 186,
327 U. S.
193-194 (1946). Any future discriminatory application of
what the city claims to be its current, uniform policy would, of
course, be unconstitutional.
See Minneapolis Star, supra,
at
460 U. S.
583-584.