486 U.S. 750, 783 (1988)
Prior to 1983, the city of Lakewood absolutely prohibited the private placement of any structure on public property.1 On the strength of that law, the city denied the Plain Dealer Publishing Company permission to place its coin-operated newspaper dispensing devices on city sidewalks.2 In response, the Newspaper brought suit in the District Court for the Northern District of Ohio challenging the ordinance.3 The District Court adjudged the absolute prohibition unconstitutional, but delayed entering a permanent injunction to give the city time to amend its law.4
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 conditions including design approval by the Architectural Board of Review, indemnification, and other terms deemed necessary and reasonable by the Mayor.5 One of those ordinances specifically concerns newsracks.6 That ordinance gives the mayor the authority to grant or deny applications for annual newsrack permits subject to several terms and conditions, including approval of the newsrack design by the city's Architectural Board of Review, an agreement to indemnify the city against liability guaranteed by a $100,000 insurance policy, and any other terms and conditions deemed necessary and reasonable by the Mayor.7
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.8 The District Court found the ordinance constitutional in its entirety, and entered judgment in the city's favor.9 The Court of Appeals for the Sixth Circuit reversed, finding the ordinance unconstitutional in three respects, including that it 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.10 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.11 The city appealed, and the Supreme Court noted probable jurisdiction.12
Whether the Newspaper may bring a facial challenge to the city's ordinance?13
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, and being denied, a license.14
Yes. The ordinance requires the Newspaper to apply annually for newsrack licenses, a system directed at conduct commonly associated with expression.15 It grants the mayor authority to grant or deny applications subject to terms including any other terms and conditions deemed necessary and reasonable by the Mayor without explicit limits.16
The Newspaper may bring a facial challenge to the city's ordinance.17
Related opinions on this issue
Joined by Justices Stevens And O’connor
Justice White argues that the Lovell-Freedman doctrine applies only when the specific conduct which the locality seeks to license is protected by the First Amendment.18 Because there is no constitutional right to place newsracks on city property, the facial challenge should be rejected in favor of the traditional as-applied approach.19 White emphasizes that the placement of newsracks on city property is not an activity protected by the First Amendment, as opposed to the circulation of newspapers generally.20
Therefore, the exception to the usual facial challenge doctrine does not apply here.21
Whether the ordinance vests the mayor with unbridled discretion over which publishers may place newsracks on public property and where?22
A law giving a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers is unconstitutional when it lacks standards controlling the official's discretion.23
Yes. The ordinance states that the mayor shall deny the application, stating the reasons for such denial, or grant the permit subject to terms including such other terms and conditions deemed necessary and reasonable by the Mayor.24 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.25
The ordinance vests the mayor with unbridled discretion, and those portions are unconstitutional.26
Related opinions on this issue
Joined by Justices Stevens And O’connor
Justice White concludes that because the placement of newsracks on city property is not an activity protected by the First Amendment the facial challenge to the mayor's discretion fails.27 He maintains that the usual rule that a law requiring permits is not unconstitutional merely because it vests discretion in officials should apply.28 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.29