City of Lakewood v. Plain Dealer Publishing Co.

486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771, 1988 U.S. LEXIS 2863, 56 U.S.L.W. 4611, 15 Media L. Rep. (BNA) 1481

• Court: Supreme Court of the United States
• Decided: June 17, 1988
• Docket: 86-1042
• Status: Published

Opinions

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 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).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 that effect; and (3) any “other terms and conditions deemed necessary and reasonable by the Mayor.”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. 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.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.⁴ The city appealed, and we noted probable jurisdiction. 480 U. S. 904 (1987).

HH hH

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, and being denied, a license.⁵ E. g., Freedman v. Maryland, 380 U. S. 51, 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, 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, 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, 602 (1942) (Stone, C. J., dissenting), adopted per curiam on rehearing, 319 U. S. 103, 104 (1943))); Lovell v. Griffin, 303 U. S. 444, 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, 956-957 (1984).⁶

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 151; Cox v. Louisiana, 379 U. S. 536 (1965); Staub v. City of Baxley, 355 U. S. 313, 321-322 (1958); Kunz v. New York, 340 U. S. 290, 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 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 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, 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 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 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, 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 case-by-case nature of “as applied” challenges render the li-censor’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 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 v. Maryland, 380 U. S. 51 (1965); 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 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 thé 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 licen-sor’s occasional speech-related decision.

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 thé 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 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 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 news-racks than for pamphleteers. Cf. Schneider v. State, 308 U. S. 147, 164 (1939) (relying on the effectiveness of pam-phleteering); Martin v. Struthers, 319 U. S. 141, 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.⁷

The key to the dissent’s analysis is its “greater-includes-the-lesser” syllogism. But that syllogism is blind to the radically different constitutional harms inherent in the “greater” and “lesser” restrictions.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, 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. City of Rockford, 408 U. S. 104, 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 the speaker. E. g., Cox v. Louisiana, 379 U. S., at 557; Staub, 355 U. S., at 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 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 80 (plurality opinion of Reed, J.).⁹

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. No “activity protected by the First Amendment” (as the dissent defines it) would have been at issue.¹⁰

The KovacsISaia comparison provides perhaps the clearest example of the flaw in the dissent’s “gre'atér-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 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-duetion 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 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 ccelo from one limited by its terms, or by nondiscriminatory practice, to considerations of public safety and the like.” Id., at 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 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, 733 (1878); Lovell, 303 U. S., at 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 777. But see Grayned, 408 U. S., at 113 (implying that a law banning excessively loud demonstrations was not facially invalid because its terms could not invite “subjective or discriminatory enforcement”).

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 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.

Ill

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 guarantee against censorship little more than a high-sounding ideal. See Shuttlesworth, 394 U. S., at 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 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.¹¹

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 access at a particular time; eventual access would come “too little and too late.” Freedman, supra, at 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, 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.

1 The other ordinance deals with all other structures and is unchallenged. § 901.18, Codified Ordinances, City of Lakewood (1984).

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 ánd 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).

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.

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.

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, 385 (1973).

6 In general, compare Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914) (coal mining), Yazoe & 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 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.

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.

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 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.

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 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 ease 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 First Amendment freedoms are exercised by forbidding sound trucks in residential neighborhoods”); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386-387 (1969) (citing Kovacs for the proposition that sound trucks may be neutrally regulated); Edwards v. South Carolina, 372 U. S. 229, 242 (1963) (Clark, J., dissenting) (Kovacs cited for the proposition that there is no right to broadcast from a sound truck on public streets).

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 newsraek on city property illegally in order to obtain standing to ¿challenge the ordinance. Cf. Steffel v. Thompson, 416 U. S. 452 (1974).

11 Some have argued, unpersuasively, that pre-enforcement challénges, 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 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.