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.
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. The city responded with the District Court’s judgment by adopting two new ordinances, one of which authorized 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, the new ordinance required the mayor to state 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. With this new ordinance in place, the District Court now entered judgment in favor of the city, finding the ordinance constitutional. However, 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 permits issued.
Did the Court of Appeals err in holding that the new ordinance, which authorized the city mayor to grant or deny applications for annual permits, was unconstitutional?
The Court affirmed the judgment of the Court of Appeals. According to the Court, the provisions giving the mayor unlimited discretion to grant or deny permit applications, and to impose additional terms and conditions for the issuance of such permits, violated the Federal Constitution's First Amendment. As such, the Court ruled that it was appropriate for the publisher to bring a facial challenge to the newsrack ordinance.