CITY OF LAKEWOOD v. PLAIN DEALER PUBLISHING CO.
No. 86-1042
Supreme Court of the United States
Argued November 4, 1987—Decided June 17, 1988
486 U.S. 750
Henry B. Fischer argued the cause for appellant. With him on the briefs were Frederick W. Whatley and Roger D. Tibbetts.
James P. Garner argued the cause for appellee. With him on the briefs were David L. Marburger, Bruce W. Sanford, and Peter C. Gould.*
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
*Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Law Officers by William I. Thornton, Jr., Roger F. Cutler, Roy D. Bates, William H. Taube, John W. Witt, Robert J. Alfton, James K. Baker, Joseph N. deRaismes, Frank B. Gummy III, Robert J. Mangler, Neal E. McNeill, Analeslie Muncy, Dante R. Pellegrini, Clifford D. Pierce, Jr., and Charles S. Rhyne; and for the National League of Cities et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Peter Buscemi.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union Foundation by Gordon J. Beggs, John A. Powell, Steven R. Shapiro, Bruce A. Campbell, and Paul L. Hoffman; and for the American Newspaper Publishers Association et al. by Robb M. Jones, Robert C. Bernius, Peter G. Stone, Lawrence W. Boes, William Niese, Boisfeuillet Jones, Jr., W. Terry Maguire, Tonda F. Rush, Harold W. Fuson, Jr., Alice Neff Lucan, and Norton L. Armour.
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 Deаler 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.
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.
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
“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 97 (emphases added).
See also Freedman, supra. Self-censorship is immune to an “as applied” challenge, for it dеrives 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 re-
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 964, n. 12; Cox v. Louisiana, supra, at 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 tо 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, supra, at 57; see also Saia, supra, at 560; Cantwell v. Connecticut, 310 U. S. 296, 306 (1940). In sum, without standards to fetter the licensor‘s discretion, the difficulties of proof and the
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
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
A second feature of the licensing system at issue here is that it is directed narrowly and specifically at expression or conduct commonly 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 hаs 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
The foregoing discussion explains why the dissent‘s analogy between newspapers and soda vendors is inapposite. See post, at 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, 419 (1971); see also Lovell, supra, at 450-452. The dissent‘s theory therefore would turn the law on its head. That
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
The key to the dissent‘s analysis is its “greater-includes-the-lesser” syllogism. But that syllogism is blind to the rad-
In сontrast, 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
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 80 (plurality opinion of Reed, J.).9
ated. JUSTICE WHITE‘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, 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., Joseph H. Munson Co., 467 U. S., at 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, 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 Kovacs v. Cooper, 336 U. S. 77“); Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 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, 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, 117, n. 4 (1972) (Kovacs cited for the proposition that “States may validly limit the manner in which the
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
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 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 pro-
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
The dissent compounds its error by defining an “activity protected by the
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
III
Having concluded that the Newspaper may facially challenge the Lakewood ordinance, we turn to the merits.
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 ordinance‘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 state statute.
“Some have argued, unpersuasively, that pre-enforcement 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, 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
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 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 54-55, 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 560, and supra, at 759-760.
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
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, 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.
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.
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.1 Cities “may require periodic licensing, and may even have special licensing procedures for conduct commonly associated with expression.” Ante, at 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
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 deter-
“[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 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 hap-
There are, however, a fеw 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
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, 574-575 (1941); Cantwell v. Connecticut, 310 U. S. 296, 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 52-53, and n. 1, at issue was a license requirement that was a prerequisite for any exhibition of a film in the State of Maryland. In all of these cases, the scope of the local license requirement included expressive activity protected by the First Amendment. See also Part II-C, 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. City of Baxley, 355 U. S. 313, 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, 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 li-
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, 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 argues6 — and appropriate it for its own exclusive use, on a semipermanent basis, by means of the erection of a newsbox. “The publisher of a newspaper . . .
has no special privilege to invade the rights and liberties of others,” Associated Press v. NLRB, 301 U. S. 103, 132-133 (1937); these protected “rights of others” have always inсluded 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, 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, 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 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
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, 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 lеafletting 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, 546 (1983) (quoting Cammarano v. United States, 358 U. S. 498, 515 (1959) (Douglas, J., concurring)). Conse-
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.7 One of these interests, discussed supra, at 780, is keeping the streets and sidewalks free for the use of all members of the public, and not just the exclusive use оf 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
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,
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 705-706, n. 2; Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 53 (1983); Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976). The District Court found that no person in Lakewood lives more than one-quarter mile from a 24-hour newspaper outlet: either a store open all night or a newsbox located on private property.
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 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
The majority‘s reading of these two cаses 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 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, 336 U. S., at 97-98 (Jackson, J., concurring); id., at 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 562. Cf. also id., at 559-560, 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 561.
Since Saia‘s underlying premise was called into question in Kovacs, 336 U. S., at 97-98 (Jackson, J., concurring); id., at 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. Massa-chusetts, 167 U. S. 43 (1897). Ante, at 762-766. The majority then engages in a detailed analysis of cases having no applicability here whatsoever, ante, at 766-767, to slay this straw man 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 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 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 768. It is asserted that “[t]he actual ‘activity’ at issue here is the cir-
This is why, notwithstanding the Court‘s intimations to the contrary, ante, at 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 149, required a license for “any parade“; the license scheme under attack in Freedman v. Maryland, 380 U. S., at 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 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 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.
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, 503-504 (1982).10
The new Lakewood ordinance enacted in tandem with
he has engaged in some First Amendment protected activities which are not to the City Council‘s liking. These fears
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 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 сontrol 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.11
But what if Lakewood, following this decision, repeals local ordinance
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
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.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 771. “[N]ewspaper publish
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 757-759, 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 Appellеe A56-A59. The Court‘s David and Goliath imagery concerning the balance of power between the regulated and
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 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
The fallacy of the Plain Dealer‘s argument to the contrary is exposed by considering its full implications. Under
The
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
The conundrum is unfortunate. Simply because a newspaper may find new ways to distribute its papers, via semi-permanent structures that are not “buildings,” should not permit the publisher to escape otherwise all-inclusive city regulation.
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 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 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,
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
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.15 Nor does it argue that such insurance policies are unobtainable, or make the use of newsboxes economically infeasible.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 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, 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.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
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.
Notes
The ordinance is quoted in full in the opinion below. 794 F. 2d 1139, 1141, n. 1 (CA6 1986). See, e. g., Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 501-503 (1985); United States v. Grace, 461 U. S. 171, 175 (1983); Nixon v. Administrator of General Services, 433 U. S. 425, 438-439 (1977); Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U. S. 35, 52 (1966); United States v. Raines, 362 U. S. 17, 20-24 (1960); Watson v. Buck, 313 U. S. 387, 402 (1941).“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 Lakewoоd 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. . . .”
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, 346-348 (1936).
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, 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 (discuss-
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, 427-430, 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, 98-99 (1893) (discussed in text infra this page and 780).
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.
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.
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 n. 13, infra (comparing this case to Freedman v. Maryland, 380 U.S. 51 (1965), and Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)).
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 149-150, 153, 157-158,
Second, the availability of such review of mayoral decisions is another distinguishing aspect of the ordinance. Cf., e. g., Staub v. City of Baxley, 355 U.S. 313, 325 (1958).
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 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.
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 [Appellees’ Counsel]: No, I am not suggesting that, Your Honor. No. No, I am not suggesting that....” Tr. of Oral Arg. 48.
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 pre-existing 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, 583, n. 5 (1983); cf. Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 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 583-584.