City Of Lakewood v. Plain Dealer Publishing Co.

486 U.S. 750 (1988)

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Nature of the Case

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Facts

Prior to 1983, D absolutely prohibited the private placement of any structure on public property. D denied P permission to place its coin-operated newspaper dispensing devices on city sidewalks. The District Court adjudged the absolute prohibition unconstitutional but delayed entering a permanent injunction to give the city time to amend its law. D adopted two ordinances permitting the placement of structures under certain conditions. The mayor was given authority to grant or deny applications for annual newsrack permits. The mayor is required to 'state the reasons for such denial.' If 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.' P amended its complaint 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 reversed, finding the ordinance unconstitutional in 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. 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. It also 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. It found the provisions not severable. D appealed.