dissenting.
In this case the court strikes down the ordinance on its face. I respectfully dissent on three separate and independent grounds. First, the newsstand ordinance does not involve speech under the protections of the First Amendment. Second, a facial challenge is not permitted (Graff should have applied for, and been denied, a permit before filing suit). Third, even if a facial challenge were possible, I would remand for a determination of whether the ordinance contains reasonable time, place and manner restrictions that serve a substantial governmental interest and whether alternative avenues of communication are available.
I. Structure or Speech?
Part IV of the court's opinion holds that a newsstand occupying a sidewalk involves a traditional public forum. I disagree. The newsstands target the general public and may, as in this case, operate on public land. See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802-03, 105 S.Ct. 3439, 3449, 87 L.Ed.2d 567 (1985). But the building of a newsstand is not a form of constitutionally protected expression. At least the court appears not to hold that Graff has a constitutional right to build newsstands on public property. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 762 n. 7, 108 S.Ct. 2138, 2147 n. 7, 100 L.Ed.2d 771 (1988). Rightly so. There is no
private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures. Public parks are certainly quintessential public forums where free speech is protected, but the Constitution neither provides, nor has it ever been construed to mandate, that any person or group be allowed to erect structures at will.
Lubavitch Chabad House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir.1990). Accord Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 813-15 and n. 32, 104 S.Ct. 2118, 2133-34 and n. 32, 80 L.Ed.2d 772 (1984). The court distinguishes Lubavitch on the basis that an airport is not a traditional public forum, citing International Soc'y for Krishna Consciousness v. Lee, — U.S. —, —, 112 S.Ct. 2701, 2706, 120 L.Ed.2d 541 (1992). The Krishna case was decided two years after Lubavitch. The Seventh Circuit established a direct holding that in a case that involves a public forum, there is no constitutional right to erect structures. Id., 917 F.2d at 347. Unless the structure of a Chanukah menorah deserves less protection than the structure of a newsstand, Lubavitch is dispositive of this case. Although a case involving an airport would now receive a different analysis under Krishna, the major teachings of Lubavitch remain to guide us in cases such as this one.
In Lakewood a newspaper challenged a city ordinance that allowed the mayor to grant or deny permits to publishers to place their newsracks on public property. The mayor had to state specific reasons if he denied the application; in granting a permit, the mayor could add such terms and conditions he deemed reasonable and necessary. The newspaper elected not to apply for a permit, instead bringing a facial challenge to the ordinance. 486 U.S. at 754, 108 S.Ct. at 2142.
[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____ 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.
Id. at 759, 108 S.Ct. at 2145. The Court found the First Amendment implicated because the specific ordinance involved news*1071papers and required them to renew their newsrack licenses annually. The Court saw the printing and circulation of newspapers as “conduct commonly associated with expression” and the periodic licensing scheme as closer to a regulation that allows the government to view actual speech content before issuing a permit.
The court in the present case uses Lakewood in holding that “If newsracks receive First Amendment protection, so do newsstands.” [p. 1062]. But Lakewood does not so conveniently bridge the gap between newsracks and newsstands. Although the court in Lakewood rejected Justice White’s dissent, which drew an analogy between newsracks and soda vendors, this court goes so far as to see an even stronger analogy between newsstands and soda vendors because the newsstand operators “distribute publications by hand.” [p. 1063]. Lakewood called this particular point a “meaningless distinction.” Id. at 762, 108 S.Ct. at 2146. The fact that newsracks do not involve hand distribution makes the need for the First Amendment, “if anything, greater for newsracks than for pamphleteers.” Id. Thus, the court in this case uses hand distribution to boost a First Amendment analysis under Lakewood, contrary to the Supreme Court’s statements that hand distribution is less in need of First Amendment protection than publications passively distributed by machines. The proper parallel is in the Lakewood opinion itself.
[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 licensor’s occasional speech-related decision.
Id. at 761, 108 S.Ct. at 2146. The court in this case sees newsstands as similar to newsracks and leafletters. They are significantly different, however. Newsstands are large, permanent-type structures. They are constructed, not placed; they do not walk around. Newsstands are not advocates; rather they supply many and varying editorial opinions. Newsstands to some extent protect vendors from the weather. And they are not easily moved. Newsstands shelter a business operation; they do not merely dispense or hand deliver newspapers. When they need fixing, they get repaired, not replaced. Finally, building and operating a newsstand is conduct, not speech, which the City can lawfully prescribe:
Municipal authorities, as trustees for the public, have the duty to keep their communities’ streets open and available for movement of people and property, the primary purpose to which the streets are dedicated. So long as legislation to this end does not abridge the constitutional liberty of one rightfully upon the street to impart information through speech or the distribution of literature, it may lawfully regulate the conduct of those using the streets. For example, a person could not exercise this liberty by taking'his stand in the middle of a crowded street, contrary to traffic regulations, and maintain his position to the stoppage of all traffic; a group of distributors could not insist upon a constitutional right to form a cordon across the street and to allow no pedestrian to pass who did not accept a tendered leaflet; nor does the guarantee of freedom of speech or of the press deprive a municipality of power to enact regulations against throwing literature broadcast in the streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity bears no necessary relationship to the freedom to speak, write, print or distribute information or opinion.
Schneider v. State, 308 U.S. 147, 160-61, 60 S.Ct. 146, 150, 84 L.Ed. 155 (1939); accord International Soc'y for Krishna Consciousness v. Lee, — U.S. —, —, 112 S.Ct. 2711, 2717, 120 L.Ed.2d 541 (1992) *1072("The principal purpose of streets and sidewalks, like airports, is to facilitate transportation, not public discourse." (emphasis added)). While the Supreme Court holds that newsracks involve activity commonly associated with expression, such as the circulation of newspapers, the First Amendment does not go so far as to give newsstands and similar structures the same treatment.
While there is a First Amendment right to publish newspapers, publishers have no right to force municipalities to turn over public property for the construction of a printing facility. There is a First Amendment right to sell books, but we would not accept an argument that a city must allow a book seller to construct a book shop—even a small one—on a city sidewalk. The right to leaflet does not create a right to build a booth on city streets from which leafletting can be conducted. Preventing the “taking” of public property for these purposes does not abridge First Amendment freedoms.
Lakewood, 486 U.S. at 780, 108 S.Ct. at 2156 (White, J., dissenting). The newsstand is more analogous to the construction of a printing facility, book shop or booth, than to a newsboy or newsrack.1 Although newsstands do contribute to newspaper circulation, the method of that circulation sufficiently distinguishes newsstands from newsracks as to require distinct treatment.2 This case neither concerns simply the circulation and printing of newspapers nor “conduct commonly associated with expression.” This case involves a structure, a topic within the domain of city ordinances since the very first city council convened.
II. Facial or As-Applied Attack?
Even assuming that newsstands somehow equate with speech, the second hurdle is whether a facial challenge is permitted. Courts are reluctant to entertain facial attacks, where the statute may be declared unconstitutional in all instances. The usual approach is to wait until a statute is applied in the suspected and offensive way. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 603, 107 L.Ed.2d 603 (1990); Lakewood, 486 U.S. at 774-75, 108 S.Ct. at 2153 (White, J., dissenting). In this case the court holds that a facial challenge is permitted for two reasons: the ordinance requires periodic license renewal and the licensing system is "directed narrowly and specifically at expression or conduct commonly associated with expression: the circulation of newspapers." [p. 1061], citing Lakewood, 486 U.S. 750, 760, 108 S.Ct. 2138, 2145, 100 L.Ed.2d 771. Such a test would allow facial challenges in almost every First Amendment case. Contrary to the court's citation, Lakewood used these reasons to address whether newsracks implicated speech, as that term is used under the protections of the First Amendment. In addition to finding that newsracks involve "speech", Lakewood holds 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.
Id. at 755-56, 108 S.Ct. at 2143 (citations omitted). Since we are here assuming for the sake of argument that a newsstand *1073represents “expressive activity,” the key inquiry is whether the licensor’s discretion is unbridled because “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. There are two reasons for this inquiry. First, only if the licensor’s discretion is limited will potential applicants not be intimidated into censoring their own speech by not applying for a license. Second, the lack of express standards makes the plaintiff’s burden of proof and judicial review of a licensing decision difficult on the question of whether the decisionmaker had really disfavored certain speech, id. at 758, 108 S.Ct. at 2144, or was otherwise unconstitutionally motivated. Id. at 759, 108 S.Ct. at 2145. At a minimum, Lakewood excused the newspaper from applying for a newsrack permit and allowed a facial challenge to the ordinance because the ordinance involved expressive activity; the opinion can also be read to inquire into the extent that the licensor’s unbridled discretion threatens to censor speech before allowing a facial challenge.
Whether the ordinance was attacked on its face or as applied, a major premise in Lakewood is that "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." Id. at 760, 108 S.Ct. at 2145. The Court struck down the ordinance specifically because there were "no explicit limits on the Mayor's discretion." Id. at 769, 108 S.Ct. at 2150. In denying a permit application, the Mayor was required only to state "it is not in the public interest." Although the ordinance required the Mayor to state his reasons, the Court found troubling the lack of specificity required and the limitless reasons the Mayor could assert. Id. at 771, 108 S.Ct. at 2151. In granting a permit, the Mayor could require the newsrack to be located "in an inaccessible location without providing any explanation whatsoever." Id. at 769, 108 S.Ct. at 2151. This constituted "unfettered discretion" abridging the First Amendment. See FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603; Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 737, 13 L.Ed.2d 649 (1965) ("one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion"); Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940) (the offending statute subjected the defendant to "harsh and discriminatory enforcement by local prosecuting officials"). In the context of whether to permit a facial challenge, the court in this case does not address the question of unfettered discretion.3 I would hold that the ordinance does not give the Commissioner unfettered discretion.
The ordinance provides for prompt decisions on initial and renewal permit applications, and lists six criteria by which the Commissioner may grant or deny permission to build a newsstand. As the court suggests, many of the criteria do not censor a newsstand operator, including such factors as
whether the design [of the newsstand] comports with the “quality and character of the streetscape”; whether the vendor complies with the ordinance; whether the vendor has previously operated a stand at the location; whether there are other newsstands in the area, ... and whether the size of the stand relates to the number of days it will be operating.
[pp. 1064-65]. By requiring the Commissioner to consider these factors, his discretion is limited, not unbridled. A person cannot feel intimidated into censoring his speech just because he would otherwise build a newsstand that blocks another business’s display window, disregard paying any permit fee, or build a newsstand as a start-up business next door to another one, only to be open one day a week. Obviously, no two newsstands can occupy the same spot at the same time. These criteria give *1074adequate and specific guidance to the Commissioner, and predictable reasons to the applicant, as to why a particular permit to build a newsstand should be preferred. If a permit to build a newsstand were denied, these express standards give the plaintiff adequate guidance in challenging the application of the ordinance to his particular case, and upon judicial review allows an informed inquiry into whether the Commissioner made his decision in an unconstitutional manner, such as by disfavoring certain speech. The factors outlined in the ordinance are subjective and involve a weighing of interests. By denying and granting more and more permits, the Commissioner’s subjective decisions and weighing of interests can be held to a consistency standard; if the plaintiff is denied a permit, yet a similar (or a less satisfactory) distributor is granted a permit under like circumstances, the ordinance gives the plaintiff a road map in how to prove whether the Commissioner denied a permit for reasons unconstitutional.
This court finds troubling the Commissioner’s ability to consider how many daily publications the newsstand will carry, [p. 1065], This factor does not infringe, but rather fosters, the interests of the First Amendment that Graff challenges. See Gannett Satellite Info. Net. v. Metro Transp. A., 745 F.2d 767, 774 (2d Cir.1984) (“the newspapers are in a privileged position and are not and will not become the victims of discrimination”). The ordinance clearly favors an applicant who has the higher, not the lower, proposed number of publications to be sold from the newsstand. This conceivably censors only the newsstand operator who himself might censor certain publications from distribution. In addition, an ordinance directed at the number of publications concerns quantity, not quality. Graff cites no case where an ordinance promoting speech (in general) infringes the First Amendment. Only if the government discriminates on the basis of the content of speech should the ordinance be scrutinized under the First Amendment.
The ordinance addresses the speech content in two ways. First, the ordinance favors the newsstand that will carry more daily publications. Second, the ordinance permits the newsstand to carry only “newspapers, periodicals and similar publications.” Chicago, Ill.Mun.Code § 10-28-180 (1991). The court concludes that these provisions may be an attempt to “curry favor with the dailies.” The City readily admits that the “intended function” of the ordinance “is merely a preference for newsstands that maximize the number of newspapers sold.” The court also states that “While the city might legitimately favor daily publications, it offers no justification for this preference in the record.” [p. 1065]. The City can and does offer legitimate reasons to favor daily publications.
The district court granted the City’s motion to dismiss two of three counts in the complaint. The district court thus denied injunctive relief because of an insufficient likelihood of success on the merits. With this ruling there was never any need for the City to present any justification for its ordinance, especially in light of Graff presenting a facial challenge. On appeal, the City offers a variety of legitimate reasons to favor the dailies.
[R]estrictions on what can be sold have nothing to do with the viewpoint expressed in the items sold from newsstands. They are simply an effort to reduce clutter on the public way____ This type of ordinance, designed to facilitate the distribution of newspapers from a newsstand without undue obstruction of the public ways, is viewpoint neutral.4
As a practical matter, people purchase newspapers in seconds. The more time-consuming purchase of books or video*1075tapes, in contrast, would obviously obstruct the public way. The only reason that a factual record might prove necessary is if the preference for daily newspapers and the restriction against books or videotapes qualifies as an unwarranted infringement of speech. As I discuss in Part III, infra, I would leave for the district court on remand the question of whether “the means chosen are not substantially broader than necessary to achieve the government’s interest.” Ward v. Rock Against Racism, 491 U.S. 781, 800, 109 S.Ct. 2746, 2758, 105 L.Ed.2d 661 (1989). It seems that the book-videotape dispute is an excuse to magnify a First Amendment issue. At the very most this isolated factor can be severed from an otherwise valid ordinance.
The court reverses the district court for one reason: that the “ordinance fails to provide prompt judicial review—or review of any kind for that matter—and so flunks the second requirement of FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606.” [p. 1065]. The court’s entire opinion relies on FW/ PBS
In FW/PBS the city of Dallas attempted to curb the secondary effects of crime and urban blight by regulating the activities of sexually oriented businesses. 493 U.S. at 220, 110 S.Ct. at 602. The ordinance subjected these businesses to "zoning, licensing, and inspections." Id. at 220-21, 110 S.Ct. at 602. Part II of Justice O'Connor's plurality (three Justices) opinion, specifically relied upon by the court in this case, presented two holdings: (1) "petitioners may raise a facial challenge to the licensing scheme, and that as the suit comes to us, the businesses challenging the scheme have a valid First Amendment interest," id. at 225, 110 S.Ct. at 604; and (2) the failure to "provide for an effective limitation on the time within which the licensor's decision must be made," and the failure to "provide an avenue for prompt judicial review so as to minimize suppression of the speech" renders the ordinance unconstitutional, (two of three procedural safeguards recited in Freedman). FW/PBS, 493 U.S. at 229, 110 S.Ct. at 606.5 Only two other Justices (Stevens & Kennedy) joined in these holdings. Justice Brennan, joined by Justices Marshall and Blackmun concurred only in the judgment. They would have added to the second holding a requirement that the government "bear both the burden of going to court and the burden of proof in court" (the third Freedman safeguard). FW/PBS, 493 U.S. at 239, 110 S.Ct. at 612. Thus, FW/PBS certainly narrowed the Freedman doctrine; where a licensing scheme requires "adult" businesses to procure a license before engaging in business, only two of the three procedural requirements survived. FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 608-09. Justice Scalia, dissenting, rejected the first holding, arguing to not allow a facial attack on the ordinance. Id. at 262, 110 S.Ct. at 624. Justice White, joined by Chief Justice Rehnquist, also dissented and rejected the second holding that the ordinance had to include the Freedman safeguards. Id. at 244, 110 S.Ct. at 614.
In FW/PBS, the city did not contest that the businesses challenging the ordinance had “a valid First Amendment interest.” Id. at 225, 110 S.Ct. at 604. The city did not argue that the ordinance did not raise First Amendment concerns. Id. at 224, 110 S.Ct. at 604. Even though the ordinance involved an inspection scheme that applied to all businesses, the Court found that the ordinance “largely targets businesses purveying sexually explicit speech which the city concedes ... are protected by the First Amendment,” id., and that “the scheme involved here is more onerous with respect to sexually oriented businesses than with respect to the vast majority of other businesses.” Id. at 225, 110 S.Ct. at 604.
In the present case the City of Chicago disputes that the First Amendment pro*1076tects the construction of newsstands. This case neither concerns simply the distribution of newspapers nor conduct commonly associated with expression. Nor is the ordinance more unreasonably burdensome with respect to newspaper distributors as compared to other businesses. The primary reason I reject a facial challenge to the ordinance is because a newsstand is a structure, not speech. This ease thus involves contested conclusions that FW/PBS assumed were admitted. Thus, FW/PBS is not controlling because the Supreme Court did not address to what extent the judicial safeguards in Freedman should apply in cases even tangentially involving First Amendment protection.
The second reason I oppose a facial challenge (the Commissioner’s lack of unbridled discretion in the ordinance) directly involves the FW/PBS case. Justice O’Connor addresses whether the Dallas ordinance involves unbridled discretion and the lack of judicial review in two entirely different contexts: First, whether the ordinance is susceptible to a facial challenge. Id. at 223-25, 110 S.Ct. at 603-04. Second, whether the ordinance is unconstitutional as a prior restraint on speech. Id. at 225-29, 110 S.Ct. at 604-06.
In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559-60, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448 (1975), and Freedman, 380 U.S. at 58, 85 S.Ct. at 739, the Supreme Court held that a system of prior restraint offends the Constitution if it lacks certain safeguards, including prompt judicial review. But in both cases, before the Supreme Court addressed the issue of a lack of judicial review, the prerequisite finding was that the government officials had too much discretion. Southeastern, 420 U.S. at 553, 95 S.Ct. at 1244 ("unbridled discretion"); Freedman, 380 U.S. at 56, 85 S.Ct. at 737 ("overly broad licensing discretion"). Accord Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150, 89 S.Ct. 935, 938, 22 L.Ed.2d 162 (1969) (the ordinance gave the city commission "virtually unbridled and absolute power to prohibit" certain speech); Staub v. City of Baxley, 355 U.S. 313, 322, 78 S.Ct. 277, 282, 2 L.Ed.2d 302 (1957) ("uncontrolled discretion"); Kunz v. New York, 340 U.S. 290, 293, 71 S.Ct. 312, 314, 95 L.Ed. 280 (1951) (discretion based upon the police commissioner's personal interpretation at a given time). Cf., Riley v. National Fed'n of the Blind, 487 U.S. 781, 786-87, 793-94, 108 S.Ct. 2667, 2672, 2676, 101 L.Ed.2d 669 (1988) (the government had left the standard of reasonableness of a fundraiser's fee to a case by case judicial standard). In FW/PBS, however, Justice O'Connor seemed not to confine these cases, or Freedman specifically, to cases where the Supreme Court made a prerequisite finding that the government officials had too much discretion before considering whether judicial review was available. Rather, Justice O'Connor asserted a new slant on our inquiry:
In Freedman, we held that the failure to place limitations on the time within which a censorship board decisionmaker must make a determination of obscenity is a species of unbridled discretion. See Freedman, [380 U.S.] at 56-57 [85 S.Ct. at 737-38] (failure to confine time within which censor must make decision “contains the same vice as a statute delegating excessive administrative discretion”). Thus, where a scheme creates a “[r]isk of delay,” 380 U.S. at 55 [85 S.Ct. at 737], such that “every application of the statute create[s] an impermissible risk of suppression of ideas,” Taxpayers for Vincent, [466 U.S.] at 798 n. 15 [104 S.Ct. at 2125 n. 15], we have permitted parties to bring facial challenges.
FW/PBS, 493 U.S. at 223-24, 110 S.Ct. at 603-04. What is puzzling is that although the Dallas ordinance on its face did not contain any of the Freedman limitations, id. at 227, 110 S.Ct. at 605-06, the only reasons advanced by the Court in allowing a facial challenge were those stated earlier: the Court found that the ordinance “largely targets businesses purveying sexually explicit speech which the city concedes ... are protected by the First Amendment,” id. at 224, 110 S.Ct. at 604, and that “the scheme involved here is more onerous with respect to sexually oriented businesses than with respect to the vast majority of other businesses.” Id. at 225, 110 S.Ct. at 604. In holding that a facial challenge was *1077permitted, the Court felt it unnecessary to address whether the ordinance gave the decisionmaker unbridled discretion or contained inadequate procedural limitations. On this point the City of Dallas’ admissions were fatal. In the present case, however, the City of Chicago concedes nothing; therefore, I will briefly address what I perceive as the Supreme Court’s new slant (announced but not applied) on allowing facial challenges in the First Amendment arena.
Justice White, dissenting in FW/PBS, argues that Freedman’s procedural safeguards were designed to “protect against arbitrary use of the discretion conferred by the ordinance.” Id. at 246, 110 S.Ct. at 616. Justice O’Connor, however, sees the lack of procedural safeguards as “a species of unbridled discretion.” FW/PBS, 493 U.S. at 223-24, 110 S.Ct. at 603-04. It is not clear exactly what Justice O’Connor means by this statement because the FW/ PBS case sidestepped the issue of whether the lack of procedural safeguards allows a facial challenge, relying rather on the city’s admissions. The key distinction between Justice White’s and Justice O’Connor’s approaches rests on a fundamental disagreement over facial verses as-applied challenges.
The Supreme Court continues to disfavor facial challenges. FW/PBS, 493 U.S. at 223, 110 S.Ct. at 603. Justice White, dissenting in Lakewood, objected to allowing a facial challenge where an ordinance granted discretion to a government official because it presumes that such discretion would be illegally exercised. Id., 486 U.S. at 776, 108 S.Ct. at 2154. Rather than await whether a government official actually exercised his discretion unlawfully (an as-applied challenge), the Supreme Court would allow a facial challenge “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.” Id. at 759, 108 S.Ct. at 2145. It is one thing to conclude that censorship occurs where the government could use its power unlawfully under an ordinance involving unbridled discretion; it is quite another, as the court in this case holds, to conclude that a person would feel censored where the government’s discretion is limited, yet that discretion is not subject to certain procedural safeguards.6
The Supreme Court has not addressed this point directly. Justice O'Connor's opinion that procedural safeguards are a "species" of unbridled discretion does not say that censorship is more likely to occur when there is a lack of procedural safeguards and yet the ordinance otherwise limits a decisionmaker's discretion. It is naive to think that a person lacks a judicial forum when their speech is allegedly infringed. Neither Graff nor the City of Chicago argues that the judiciary cannot hear challenges to this ordinance because *1078of the lack of judicial permission in the ordinance. The lack of these procedural safeguards does not censor speech, where these procedural safeguards, in a practical sense, neither expand nor detract from our jurisdiction over constitutional questions. The Illinois state courts also maintain jurisdiction over the Commissioner's decision through the writ of common law certiorari. See Stratton v. Wenona Community Unit Dist. No. 1, 133 Ill.2d 413, 141 Ill.Dec. 453, 458, 551 N.E.2d 640, 645 (1990). Lakewood favored a facial attack because the lack of express standards would make judicial review, and the plaintiff's burden of proof, difficult on the question of whether the decisionmaker had disfavored certain speech, or was unconstitutionally motivated. Id., 486 U.S. at 757-58, 108 S.Ct. at 2144-45. Freedman favored a facial attack because awaiting the censor's exercise of discretion and bringing an as-applied challenge to the ordinance "may be too little and too late." Id., 380 U.S. at 57, 85 S.Ct. at 738. Such reasons for a facial attack concerning judicial review are not present in this case.7
The ordinance’s express standards give adequate and specific guidance to the Commissioner, and predictable reasons to the applicant, as to why a particular permit to build a newsstand should be preferred. If a permit to build the newsstand were denied, these express standards give the plaintiff adequate guidance in challenging the application of the ordinance to his particular case, and upon judicial review allows an informed inquiry into whether the Commissioner made his decision in an unconstitutional manner, such as by disfavoring certain speech. If Graff were ultimately denied a permit under the ordinance, he could only feel censored by the application of the ordinance’s criteria to his particular situation, not because the ordinance does not contain specific procedural safeguards. Such judicial review would also not come “too little and too late.” Graff does not argue that the City of Chicago cannot ban newsstands entirely. And he cannot seriously argue that he has a constitutional right to erect a newsstand on public property anywhere he desires.
A facial challenge should not be permitted in the present case for either of two reasons. Newsstands involve the building of structures. Thus, the ordinance does not 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.” Lakewood, 486 U.S. at 759, 108 S.Ct. at 2145. In the alternative, the ordinance does not vest the Commissioner with unbridled discretion so as to censor Graff’s speech. I would therefore dismiss Graff’s complaint to the extent that it alleges only a facial challenge to the ordinance.8
III. A Facial Challenge Should Be Remanded
In many ways this case resembles City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). There the city of Renton, Washington en*1079acted a zoning ordinance to prohibit adult motion picture theaters from locating within a certain distance from residential, church, or school property. Id. at 43, 106 S.Ct. at 926. The Supreme Court found that the ordinance
does not appear to fit neatly into either the “content-based” or the “content-neutral category.” To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, as the district court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theatres,” but rather at the secondary effects of such theaters on the surrounding community.
Id. at 47, 106 S.Ct. at 929. The Supreme Court analyzed the ordinance by looking at the time, place, and manner restrictions in the regulation. The Supreme Court held that the Renton ordinance was justified without reference to content, thus "content-neutral," id., and served a substantial government interest, while allowing for reasonable alternatives of communication. Id. at 53-54, 106 S.Ct. at 932. If a city can restrict speech through the planning, regulation, and zoning of property because of the secondary effects of adult motion pictures on the neighborhood, id. at 51-52, 106 S.Ct. at 931, Young v. American Mini Theatres, Inc., 427 U.S. 50, 62, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976), the City of Chicago should be allowed to regulate newsstands, if for only aesthetic reasons. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772 (1984).
In light of the procedural posture of the present case, what the court holds today is unprecedented. Graff filed a complaint for damages and injunctive relief. Rather than conduct a preliminary hearing, the district court denied injunctive relief by granting the defendant’s motion to dismiss two of three counts in the complaint. By reversing the district court and holding, as a matter of law, that the ordinance is invalid on its face, the defendants lose without having even answered the first amended complaint.
If the matter were indeed properly remanded, rather than reversed, we could direct the district court to wait until the summary judgment stage of the litigation to address the ultimate question of whether the ordinance should stand. In FW/PBS, 493 U.S. at 221, 110 S.Ct. at 602, Renton, 475 U.S. at 41, 106 S.Ct. at 925, Vincent, 466 U.S. at 792-93, 104 S.Ct. at 2122, and Young, 427 U.S. at 55, 96 S.Ct. at 2445, the cities were at least allowed to get to the summary judgment stage. The City of Chicago should at least be given the opportunity to show the substantial governmental interests at stake, the reasonableness of the ordinance's time, place, and manner restrictions, and the alternative avenues of communication available to Graff. Only after such an inquiry should we address the extent to which the Freedman safeguards are necessary. The court criticizes the district court for failing to "measure either the city's proposed interests in regulating expressive conduct or the availability of alternative channels of communication." [p. 1068]. Even if the district court had attempted to do so, ruling on a motion to dismiss is no place for such an inquiry. In this case, however, this court goes in the opposite direction and strikes down an ordinance on nothing more than the allegations in a complaint.
IV. Conclusion
Graff filed his original complaint on February 20, 1991. The City of Chicago thereafter amended its newsstand ordinance on June 28, 1991. The City was searching for a reasonable alternative to either prohibiting newsstands entirely or permitting newsstands at will. Today’s decision takes a microscope to the ordinance and concludes that newsstands, per se, involve speech, and that newsstand ordinances must have a one-sentence section that gives an unidentified court or other reviewing *1080body power to review a Commissioner’s decision. The extent to which this judicial review must comply with all of the Freedman safeguards we do not know. It could take the City of Chicago only one meeting to correct the technicality the court finds problematic. But the court does little in giving the City any clue to other possible weaknesses in the ordinance. The court holds “that a municipality must grant its citizens certain procedural safeguards where it seeks to license expressive activity.” Supra, p. 1063. But the ordinance the court strikes down today purports to allow newsstands only when a permit is granted. Since the court “most emphatically reject[s] the notion that private parties have any unassailable right to build structures on public property,” {supra, p. 1063), by what right does Graff operate his newsstand on public (Landmark) property? Without answers to these questions, the case will probably start over, giving the parties another two years of litigation expense before we hear it again. This type of strident, piecemeal review neither promotes the interests of the First Amendment nor the needs of the parties in resolving this case.
I respectfully dissent.
Before BAUER, Chief Judge, CUMMINGS, CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ILANA D. ROVNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.*ORDER
April 15, 1993.
On consideration of the petition for rehearing with suggestion for rehearing en banc filed by defendant-appellee on March 16, 1993, and the answer of plaintiff-appellant, a vote of the active members of the Court was requested and a majority of the judges in active service have voted to rehear this case en banc.
IT IS ORDERED that rehearing en banc be, and the same is hereby, GRANTED.
IT IS FURTHER ORDERED that the opinion entered in this case on February 16, 1993, be, and is hereby, VACATED. This case will be reheard en banc at the convenience of the Court.
. In Lakewood, 486 U.S. at 781-82, 108 S.Ct. at 2157-58, Justice White feared that equating newsracks with newsboys and conduct commonly associated with expression allows newspaper publishers the right to take public property for private use and ignores the governmental interests at stake: allowing all members of the public use of their streets and sidewalks, insuring the public's safety and aesthetic interests, especially where alternative methods of newspaper distribution are available. The court responds that “The physical nature of the structure does not dictate the First Amendment protection it receives because the newsstand or newsrack is merely the conduit.” Supra, p. 1063. This extension of the rule makes no allowance for the degree the public is obstructed in walking on their sidewalks. If the ordinance in the present case is struck down, Justice White's fears in 1988 have become Chicago’s reality in 1993.
. In Lakewood the newspaper publisher argued that it was not seeking to rent or permanently build a structure on the sidewalk; the newsrack was characterized as similar to a newsboy, and the newsrack his "mechanical cousin." Id. at 778 n. 6, at 2155 n. 6.
. The court does address unfettered discretion in the context of whether the ordinance contains sufficient judicial review provisions, wherein the court is willing to assume for the sake of argument that the ordinance contains valid limitations on the Commissioner’s discretion. [p. 1065],
. The City also argued in the district court that prior Supreme Court decisions allow the City to
provide more outlets for the sale of daily publications than for the sale of other “expressive materials.” See, e.g., Lakewood [486 U.S. at 771-72, 108 S.Ct. at 2152], 100 L.Ed.2d at 792 (uniqueness of daily newspapers requires public access at a particular time); Gannett Satellite Inf. Net. v. Metro Transp. A., 745 F.2d 767, 773-4 (2d Cir.1984) (upholding as content neutral regulation which allowed newspapers but not other vendors to install coin operated vending machines).
. Justice Brennan summarized the three Freedman safeguards as follows:
(1) any prior restraint in advance of a final judicial determination on the merits must be no longer than that necessary to preserve the status quo pending judicial resolution; (2) a prompt judicial determination must be available; and (3) the would-be censor must bear both the burden of going to court and the burden of proof in court.
FW/PBS, 493 U.S. at 239, 110 S.Ct. at 612.
. The court reads Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325 (7th Cir.1991), as "merely regulat[ing] the size of newsracks; it did not exercise licensing power to deny permit applicants the means to conduct business related to the First Amendment.” [page 1062 n. 5]. I disagree. In Chicago Observer, the City of Chicago enacted an ordinance "designed to get the Observer’s billboards off the sidewalks,” and addressed the size and advertisements concerning newsracks. 929 F.2d at 327. The district court enjoined the City from removing any newsracks because the owners were not given an opportunity for a hearing prior to removal. After the City amended the ordinance to provide for notice and a hearing, the district court refused to vacate the injunction on the grounds that the Commissioner had unfettered discretion to later revoke the amendment. Id. We reversed, upholding the ordinance because the City "offers hearings before a neutral arbiter, the right to be represented by counsel, to present evidence, to cross-examine adverse witnesses.” Id. at 328.
If the ordinance originally did not provide for notice and hearing procedures, it obviously did not provide the procedural safeguards articulated in Freedman or, as this court now asserts, in FW/PBS. We simply noted that The Chicago Observer did not seek review in state court. Id. at 327. And we did reach some of Chicago Observer’s constitutional arguments, stating that "Chicago does not regulate the viewpoint of publications; it is concerned only with size and advertising." Id. The parties do not dispute that the ordinance in this case gives proper notice and an opportunity for a hearing. The court only complains that the Commissioner’s ultimate decision is not limited by the Freedman standards. The court’s holding in this case seems to condemn the ordinance we approved in Chicago Observer. This would be contrary to the court’s assertion that the case is not relevant here.
. In FW/PBS, a plurality (JJ. O'Connor, Stevens and Kennedy) applied only two of the three procedural safeguards in Freedman to a licensing scheme involving sexually oriented businesses. Id. 493 U.S. at 229-30, 110 S.Ct. at 606-07. Justices White, Scalia, and Chief Justice Rehnquist did not apply the Freedman safeguards. And Justices Brennan, Marshall and Blackmun would have applied all three of the Freedman safeguards. In the present case, by simply citing to FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606, as authority for its holding, the court disregards the fact that Justice O’Connor at least considered the nature of the speech and the discretion in the ordinance as relevant inquiries regarding the extent the Freedman safeguards are necessary. If the full procedural protections of Freedman are not necessary in the context of sexually oriented licensing schemes, FW/PBS, 493 U.S. at 228, 110 S.Ct. at 606, what law demands that the Freedman safeguards are necessary in an ordinance that regulates the building of newsstands on public property?
. The importance of an as-applied challenge is particularly appropriate in this case. Graff has insisted on operating his newsstand on property protected by the Commission on Chicago Historical and Architectural Landmarks. After Graff's first amended complaint of September 11, 1991, and the district court’s decision of May 28, 1992, the Landmark Commission denied Graff's application on August 13, 1992, concerning a permit to build a newsstand on property that is part of the Chicago Public Library Cultural Center. Graff does not challenge the Landmark Commission’s actions as violative of the First Amendment. Thus, if Graff wishes to build his newsstand only where a permit is necessary from the Landmark Commission, he should have no standing to challenge any ordi*1079nance that gives the Commissioner of Public Works the power to subsequently act on the permit. Neither the parties nor the district court addressed the matter in detail; I mention it only to illustrate that a facial challenge to the ordinance Graff attacks may still not allow Graff to maintain his newsstand on Landmark property.