What is the test for a "prior restraint" under a licensing statute?

MultiRegion, United States of America

The following excerpt is from ArchitectureArt, LLC v. City of San Diego, 231 F.Supp.3d 828 (S.D. Cal. 2017):

"[W]hen a licensing statute vests unbridled discretion in a government official over whether to permit or deny expressive activity," it is "void on its face." Lakewood v. Plain Dealer Pub. Co. , 486 U.S. 750, 75556, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (quoting Lovell v. Griffin , 303 U.S. 444, 45253, 58 S.Ct. 666, 82 L.Ed. 949 (1938) ). "[I]n 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." Id. at 757, 108 S.Ct. 2138 (citations omitted). It allows the government "substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." Id. at 759, 108 S.Ct. 2138.

"A person subject to a restraint ordinance may make a facial, First Amendment attack on that ordinance without ever applying for a permit because the threat of the prior restraint itself constitutes an actual injury." Get Outdoors II v. San Diego , 506 F.3d 886, 894 (9th Cir. 2007). A "prior restraint" exists when: (1) the ordinance vests unbridled discretion in the licensor; or (2) the ordinance does not impose adequate time limits on the relevant public officials. Id.

Other Questions


Can a prior interpretation of a statute be overruled by a later interpretation of the same statute? (MultiRegion, United States of America)
Does the expiration of the statute-licensing statute- limitation period apply to a claim brought by a plaintiff who was brought before the date of the petition was filed? (MultiRegion, United States of America)
Does the felon-in-possession statute extend to all guns manufactured after the effective date of the statute's effective date? (MultiRegion, United States of America)
Is a federal district court's interpretation of a federal statute a de novo review of the interpretation of the federal statute? (MultiRegion, United States of America)
How have the courts interpreted the meaning of a statute in the context of the history of the statute? (MultiRegion, United States of America)
Does the attorney's fee statute apply to services rendered prior to its enactment? (MultiRegion, United States of America)
When a statute requires knowledge of the jurisdictional element of a claim, when the statute itself states that knowledge is not an essential element, is that knowledge required? (MultiRegion, United States of America)
What is the test for judicial deference to an administrative tribunal on the interpretation of its "home statute" or statute? (Canada (Federal), Canada)
Is a federal district court's interpretation of a federal statute a de novo review of the interpretation of the federal statute? (MultiRegion, United States of America)
Can damages be sought under a statute with an explicit private right of action where the statute does not specify the remedies available? (MultiRegion, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.