City of Lakewood v. Plain Dealer Publishing Co.

1988-06-17

Headline: Local law giving the mayor unchecked power to approve or deny newsrack permits struck down, protecting newspaper distribution on public sidewalks and limiting municipal control over placement of vending machines.

Holding: The Court held that a city ordinance giving the mayor unfettered discretion to deny or condition newsrack permits is unconstitutional and subject to a facial challenge, and remanded the severability question to the lower court.

Real World Impact:

Prevents municipal permits lacking standards from blocking newsrack placement
Allows publishers to challenge licensing laws before applying for permits
Forces lower courts to decide whether invalid parts of ordinances are severable

Topics: newspaper vending, free press, local government rules, permits and licensing

Summary

Background

The dispute involved a suburban city that had long banned private structures on public property and later adopted a newsrack permit law. A large local newspaper challenged the law instead of applying for permits. The ordinance required annual permits, design approval by an Architectural Board, $100,000 liability insurance and an indemnity agreement, and allowed the mayor to impose “other terms and conditions deemed necessary and reasonable.” The newspaper sought to invalidate the law on its face as a threat to press distribution.

Reasoning

The Court said the newspaper could bring a facial challenge because licensing systems that give officials open-ended discretion over expressive activity create a risk of prior restraint and self-censorship. The majority focused on two features: periodic licensing for a circulation activity and a law targeted at conduct commonly associated with expression. Those features, together with no clear standards limiting the mayor’s choices, made the law vulnerable to a facial attack. The Court held the portions giving the mayor unfettered discretion to deny or condition permits unconstitutional and refused to write limiting standards into the ordinance itself.

Real world impact

The ruling prevents municipalities from enforcing permit schemes that leave officials unchecked over newsrack placement without clear neutral rules. The case was sent back to the Court of Appeals to decide whether the invalid parts can be severed from the rest of the ordinance. The decision allows publishers to challenge licensing regimes before seeking permits when the law risks censorship.

Dissents or concurrances

A dissent argued there is no constitutional right to place newsracks on public property, urged an as-applied approach, and would have upheld the ordinance.