486 U. S. 750
June 17, 1988
Lakewood passed an ordinance that required the mayor to annually approve any placement of newsracks on public property. Because no limits were placed on the mayor’s discretion to disapprove of a newsrack, a newspaper argued that the ordinance facially violated the First Amendment. Lakewood responded that the mayor could be trusted, and that an as-applied challenge could issue if the mayor ever seemed to be squelching the freedom of the press.
The Court ruled 4-3 that a facial challenge was warranted, and that the ordinance failed under a facial challenge (Rehnquist and Kennedy did not participate). Brennan said that regulations aimed at the press, like the one at issue, are particularly suited for facial challenges, because of the dangers of self-censorship in its absence. He admitted that newsracks could be banned altogether, but this power did not give the state unlimited discretion once it made the choice to allow some. Many precedents were cited for this fact. Turning to the merits, Brennan found that there was no guiding principle in the ordinance to limit the mayor’s discretion. Should the mayor ban a newsrack, as-applied relief would come to late, because in the meantime the opportunity to report years worth of news may be lost.
White, joined by Stevens and O’Connor, dissented. He did not think an imagined right to permanently occupy city property for the dissemination of news was enough of a First Amendment concern to bring about a facial challenge. White disputed the majority’s conclusion that a state cannot regulate, with some discretion, action that it could ban. Indeed, the majority’s mode of analysis might induce localities to effective regulate the press by passing more generally worded and applicable ordinances. White further noted that Lakewood had subsequently passed a much more press-friendly ordinance, and that newspapers were sold all over Lakewood on property not belonging to the government; given all this, there was realistically little at stake. White concluded by arguing that some other features of the ordinance not addressed by the majority were Constitutional.
Both the majority and dissent expended way more effort than necessary. I left out a few points, and over-summarized others, but you’re not missing much. This was a trivial case, and both sides ended up losing perspective. White’s impassioned dissent reflects his decades long hatred of newspapers, which was nurtured by their shoddy coverage of him as a college football star.
Brennan’s impassioned majority opinion reflects his love of juicy First Amendment cases, and his aching desire to get just a couple additional soaring opinions on that topic in United States Reports before retirement. I will say this about Brennan: no one is as good as him at arguing that a case is totally controlled by this or that precedent. Regardless of whether the precedent really controls, he is unfailingly good at making it sound convincing.