(concurring in the judgment):
I. Introduction
Judge Calabresfs learned exegesis on certification of state-law questions in federal constitutional cases is, in my view, misplaced in our current consideration of an injunction against a prior restraint on artistic expression. In light of the divergence of views among the members of this panel, I concur in the result he proposes nonetheless, concluding that although certification in this case is contrary to the dictates of the First Amendment it will result in a speedier resolution of the plaintiffs right to express himself than will any other practically available alternative. Getting on with this case is less offensive to the First Amendment, I think, than my continuing to argue for a result I view as constitutionally correct but which is, for now at least, unobtainable. While I thus concur in Judge Calabresi’s proposed judgment, I see no reason to decide whether the analytical framework he prescribes is correct.
* * *
I have little doubt that the City of New York can stop a large group of men and women from undressing on a public street in a residential neighborhood, even if the members of the group do so for the purpose and in the course of creating artistic1 *91expression.2 But governmental prevention of expression before it takes place is a prior restraint. “[Pjrior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Any such bar may be accomplished, therefore, only through the enactment of a clear statute meeting constitutional rigors or a regulatory scheme with sufficiently definite standards and procedural safeguards.
The City has chosen to employ neither. Instead it has invoked a statute that, as Judge Calabresi correctly points out, ante at 71-72, does not clearly prohibit Tunick’s intended actions. The City proposes to allow members of the executive branch of City government physically to prevent Tunick’s expressive activity based on their reading of the statutory language. In my view, because the City has chosen to employ neither a permit system nor a clear statute, First Amendment principles leave us with no choice but to lift our stay of the district court’s preliminary injunction prohibiting the police from physically restraining Tunick’s expression before it occurs.
II. The City’s Licensing System
The City has in place a permitting system “for the taking of photographs ... in or about city property, or in or about any city street.” See N.Y. City Charter § 1301(i)(r). The City might have attempted to employ that system to deal with Tunick’s intended photo shoot in a residential Manhattan neighborhood. “Of course, the [C]ity may require periodic licensing, and may even have special licensing procedures for conduct commonly associated with expression.” City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Under a properly structured licensing system, a municipality may constitutionally regulate at least the time, place and manner of expressive activity. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). But a system of licensing speech or other expression is impermissible if it does not contain clear objective standards on the basis of which the licensing authority must act. This deters the licensor from engaging in raw censorship, preventing or unduly restricting speech of which or by people of whom he or she disapproves. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (“principal inquiry” in licensing cases is “whether the government has adopted a regulation of speech because of disagreement with the message it conveys.”)
Standards provide the guideposts that check the licensor and allow courts *92quickly 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.
Lakewood, 486 U.S. at 758, 108 S.Ct. 2138 (citation omitted). A “law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworbh v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (footnote containing citations omitted).
We need not review the statutory basis for, or the operation of, the City’s licensing system here, however. As Judge Calabre-si observes, ante at 70, the City has explicitly declined to base its threatened arrest of Tunick and his models upon his failure to obtain a City permit.3
III. The State Criminal-Exposure Statute
Having foregone regulation by licensing, the City intends for the police physically to prevent Tunick and his models from engaging in the photo shoot on the grounds that it will violate §§ 245.01 and 245.02 of the New York State Penal Law. Section 245.01 provides:
A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.
N.Y. Penal Law § 245.01. More meaningfully for Tunick, who does not plan to doff his clothing in order to take the photographs, Penal Law § 245.02 provides:
A person is guilty of promoting the exposure of a person when he knowingly conducts, maintains, owns, manages, operates or furnishes any public premise or place where a person in a public place appears in such a manner that the private or intimate parts of his body are unclothed or exposed.
N.Y. Penal Law § 245.02. But each of these statutes also contains an exception that may cover Tunick’s planned photo shoot: “[T]his section shall not apply to the breastfeeding of infants or to any person entertaining or performing in a play, exhibition, show or entertainment.” Indeed, Tunick’s view is not that this exception may apply to his photo shoot, but that it unquestionably does. According to his counsel, this statutory language, which is “totally clear and completely unambiguous on its face,” Tr. Oral Arg. at 25, permits that which Tunick proposes to do.
The statute gives cities, towns and villages the power to opt out of the exception insofar as it applies to expressive activity, thus allowing such municipalities to enact local laws prohibiting public nudity irrespective of its artistic purpose. N.Y. Penal Law §§ 245.01 and 245.02.4 While such a local law would render Tunick’s planned activity plainly illegal, leaving the issue of whether the prohibition meets First Amendment standards, New York City has chosen not to adopt one. Indeed, New York’s licensing authority has deliberately permitted nude photography in public places from time to time.
*93The City has thus both abandoned Tun-ick’s lack of a permit as a basis on which to prevent his planned photo shoot and declined or failed to adopt an ordinance that would make it explicitly unlawful. It has nonetheless decided that despite the statute’s exception for artistic activities what Tunick proposes to do is prohibited by §§ 245.01 and 245.02. According to the City, people posing naked in the public streets for the purpose of having their photograph taken for eventual display elsewhere, using the street as a “set” rather than a forum,5 are not “performing in a play, exhibition, show or entertainment.” Neither the plain meaning of the statute, the decision of a New York appellate court, nor any other means by which we might determine the statute’s reach is available— to us or to the New York City Police Department — to determine whether the City is right.
In my view, the arrest of Tunick by the police under a statute that does not clearly make his artistic expression unlawful prior to that expression taking place presents the same kind of peril for freedom of expression as does the refusal of a licensing authority to grant a permit under a similarly unclear statute. Unguided by a plain statutory command, the police can permit or restrain Tunick’s expression before it occurs for reasons of their own. When a government license is involved, a “law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objec-five, and definite standards to guide the licensing authority, is unconstitutional.” Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. 935 (footnote containing citations omitted). I do not see why subjecting the exercise of First Amendment freedoms to a prior restraint imposed by the police, without narrow, objective, and definite standards to guide the police, is any the more permissible. This variation on the classic theme of censorship is, it seems to me, also foreclosed by the First Amendment.
Police censorship is, if anything, more dangerous than a licensing system. It is pure force unaccompanied by the procedural safeguards that are a constitutionally mandated part of a viable licensing plan. See, e.g., Beal v. Stern, 184 F.3d 117, 128 (2d Cir.1999).6 I do not think that law enforcement officials may stop expressive activity before it begins absent a clear statute making the activity illegal. The police operate under no such clear mandate here.
In sum, the City’s arrest of Tunick and his models would prevent his expression. It would thus be a prior restraint and as such has special constitutional significance. As the Supreme Court has explained:
A criminal penalty or a judgment ... is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct *94or otherwise, does the law’s sanction become fully operative.
A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication “chills” speech, prior restraint “freezes” it at least for the time.
Nebraska Press Ass’n, 427 U.S. at 559, 96 S.Ct. 2791 (citing Alexander M. Bickel, The Morality of Consent 61 (1975)) (footnote omitted). The prohibition of prior restraints has been understood for centuries to be central to the guarantee of freedom of expression. See Near v. Minnesota, 283 U.S. 697, 713-14, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). “The [Supreme] Court has emphasized that ‘[a] system of prior restraints of expression comes to [the courts] bearing a heavy presumption against its constitutional validity.’ ” Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)(quoting Bantam Books v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) and Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)) (second alteration in the original). There is no basis for a finding that that fundamental presumption has been overcome here.
IV. Subsequent Punishment
Prosecution of Tuniek or his models under the New York statutes after the photography is complete would be another matter. Tunick’s counsel made clear at oral argument that the aim of this pro-eeeding was solely “to enjoin a prior restraint. The purpose sought was not to prevent Mr. Tuniek from being prosecuted subsequently and havfing] the case wend its way through the court[s].”7 Tr. Oral Arg. at 28. I see no impediment to such after-the-fact action under § 245.01 or § 245.02.
Should the City seek to prosecute Tun-ick (or his models) they would have available to them in the New York state courts the argument advanced here, that his (or their) activity is — plainly in Tunick’s view — protected as a “perform[ance] in a play, exhibition, show or entertainment” under the exceptions contained in §§ 245.01 and 245.02. State courts thus would decide the issue of the meaning of these state statutes. If the New York courts were to decide that Tuniek’s (or his models’) behavior was not exempt under the statutes, he (or they) would then be able to argue the statutes’ unconstitutionality. If he (or they) were prosecuted after the fact, his (or their) rights under the Federal Constitution and state constitutional8 and statutory law would thus be protected. The potential for the “ ‘friction-generating error’ between the federal and state court systems” that Judge Calabresi seeks to avoid, ante at 77 (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 79, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)), would not arise.
V. Judge Calabresi’s Opinion
I do not write in order to take issue with Judge Calabresi’s learned dissertation on *95certification of state-law questions to state courts in constitutional adjudication.9 I part company with him because certification in this case will postpone Tunick’s speech indefinitely, and in the realm of prior restraints on expression I think that such delay, being unnecessary, is constitutionally intolerable.
This is not to say that Judge Calabre-si’s approach is wholly insensitive to freedom of speech. See ante at 87-89. He recognizes that we cannot ignore “the effect of certification, and its attendant delay” on Tunick’s expressional rights. Id. at 55, 117 S.Ct. 1055. “This factor,” he continues, “is fundamental and, in many contexts, it will outweigh the others and mandate speedy and direct action by the federal court.” Id.
But Judge Calabresi concludes that in Tunick’s particular case “time is not of the essence,” id. at 88, and that forcing him to wait to speak until the certification process is complete is therefore constitutionally acceptable. I disagree. Every moment’s repression of expression presumptively does the public injury. See Elrod v. Burns, 427 U.S. 347, 378, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); see also New York Times Co. v. United States, 403 U.S. 713, 714-15, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Black, J., concurring) (“[E]very moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment.”) Close to the heart of the presumption against the validity of prior restraints is the notion that a prospective speaker may not be forced to litigate the lawfulness of his or her speech beforehand, as Tunick would be forced to do under Judge Calabresi’s approach.
I am wary of making unnecessary distinctions, as I think Judge Calabresi does, between speech that we find to be urgent and that which we think can bide its time. We ought not to be determining what speech is pressing and what can suffer the law’s delay. That, like deciding what speech is important and what unimportant, is not for the courts. For us to determine relative urgency would be disturbingly similar to our deciding what is and is not “newsworthy,” an endeavor that we have been instructed to avoid. See Harper & Row Publishers, Inc. v. Nation Enter’s, Inc., 471 U.S. 539, 561, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) (commenting in a copyright case that “ ‘[courts] should be chary of deciding what is and what is not news,’ ” (quoting Judge Meskill, of this Court, dissenting from the decision of this Court there under review, Harper & Row Publishers, Inc. v. Nation Enter’s, Inc., 723 F.2d 195, 215 (2d Cir.1983))); Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“We doubt the wisdom of committing th[e] task [of deciding on an ad hoc basis which publications address issues of ‘general or public interest’] to the conscience of judges.”); Lerman v. Flynt Distrib. Co., 745 F.2d 123, 139 (2d Cir.l984)(“Courts are, and should be, reluctant to attempt to define newsworthiness.”), cert. denied, 471 U.S. 1054, 105 S.Ct. 2114, 85 L.Ed.2d 479 (1985); Harper & Row Publishers, Inc. v. Nation Enter’s, Inc., 723 F.2d 195, 207 (2d Cir.l983)(‘We fully agree with our brother Meskill that courts should be ‘chary’ of deciding what is and what is not news.”), rev’d on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985).
Even the “Pentagon Papers,” dealing though they did with matters of life and *96death, war and peace, were arguably historical material not being published on deadline. See David Rudenstine, The Day the Presses Stopped 48 (“Throughout the [‘Pentagon Papers’] litigation and thereafter the [New York ] Times publicly took the position that the Pentagon Papers study was nothing but a history with absolutely no relevance to current military, diplomatic, and intelligence interests.”) That did not make the lifting of the prior restraint against their publication any the less urgent. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971). The Supreme Court did not content itself with an observation that Daniel Ellsberg and the New York Times retained an interest in publishing the documents, and that consequently “time [was] not of the essence,” ef. ante at 88, permitting the Court to consider the case in a more leisurely fashion.
I have no reason to doubt that Judge Calabresi’s solution to the problem before us is a refined analysis of the respective roles of state and federal courts confronted with a federal constitutional question about a state statute. It does not, however, determine the proper procedure to be employed here because it does not sufficiently take into account Fh*st Amendment values in the discrete context of a looming prior restraint.
VI. Conclusion
I would lift the stay of the district court’s injunction and remand the case for that court, in consultation with Tunick, to fix a date for the taking of the photographs. The district court would then reenter an injunction prohibiting the City of New York and its agents from interfering with Tunick or his models in the taking of the photographs, assuming of course that no statute clearly criminalizing their planned behavior has become law in the interim. In this way we would protect Tunick’s right to engage in the expression at issue without the delay inherent in a lengthy certification process, albeit at some risk of subsequent punishment. And we would do so in a manner that did not trench upon principles of federalism.
But I find myself alone in my views. I therefore join the result proposed by Judge Calabresi, which thus becomes the judgment of the Court. This seems to me to be preferable to joining Judge Van Graafeiland’s conclusion, which at the time of this writing, at least, would result in our abjuring a decision on this appeal, returning Tunick to the position he was in last July. And I see nothing to be gained from my holding out any longer for my own view.10 Because it is my belief that time is always of the essence when it comes to speech, I do hope that the New York Court of Appeals will find a way to be more expeditious in deciding whether to accept this certification and, if they do accept it, in deciding the certified questions, than we have been in deciding to certify them in the first place.
. A description of how Tunick goes about taking his photographs might well leave the impression that he is engaged in a series of sophomoric pranks. Any attempt to evaluate his work based on such a description, however, would be misguided. His photographs have been exhibited in prestigious galleries and reviewed favorably in the mainstream press. A two-page article in the July 12, 1998 issue of The New York Times Magazine (p. 49-50) was devoted to four of his pictures and included reproductions of the photographs themselves. And the author of a review in the September 1998 issue of Harpers Magazine concluded that an exhibition of Tunick’s work at a Manhattan gallery was “[a] good exhibition worth seeing.”
Tunick’s extended performance works involving masses of people that are recorded via still photography or video tend to diminish their individual presences in favor of an *91overall schema, which has, let’s face it, totalitarian undercurrents.
Tunick’s best photographs ride on the prospect that the formal aspect of[] depicting repeated human contours in public environments will infer on the fragility of the unprotected human body in industrialized settings. He's surprisingly effective in these best efforts where the confrontation between the public and private spheres in his photographs collide with sufficient impact to engender thoughts on America’s evident national schizophrenia' — a heritage that always rears its head in weird, in unsuspecting ways, much to the amazement of many, but not all, other countries in the world, ex. The Clinton-Lewinsky debacle.
Harpers Magazine, September 1998, at 73-74.
This brief discussion of the value of Tun-ick’s work is consigned to a footnote because it is perfectly irrelevant to the issues to be decided on this appeal. As Judge Calabresi explains, Tunick’s photography is undoubtedly entitled to constitutional protection. See ante at 82. The First Amendment does not protect expression based on an appraisal of its worth by any government official, including the author of this opinion.
. The plaintiff properly conceded in the district court that "public nudity, even in furtherance of art, may be restricted.” Cf. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991)(plu-rality opinion)(discussing level of protection to be applied to artistic nudity).
. Whether the City's decision, following our granting of a stay of the district court’s injunction, to forego that argument is, based on the fact that the district court’s injunction did not require the City to issue Tunick a permit, as Judge Calabresi surmises, ante at 70, a perceived absence of standards in the City licensing law that makes it constitutionally suspect, or on something else, we do not know.
. Section 245.01 reads, "Nothing in this section shall prevent the adoption by a city, town or village of a local law prohibiting exposure of a person as herein defined in a public place, at any time, whether or not such person is entertaining or performing in a play, exhibition, show or entertainment." Section 245.02 is nearly identical, adding the word "substantially” before the words "as herein defined.”
. Tunick cites but one case — the City none— addressing the constitutionality of a government restriction on the use of a public place as a set. See Amato v. Wilentz, 753 F.Supp. 543 (D.N .J.1990) (finding unconstitutional judge's refusal to permit courthouse that was often used by permission as film set to be used by the maker of "Bonfire of the Vanities” because content of scene to be shot "could cause justifiable offense to any black person”), rev'd on other grounds, 952 F.2d 742 (3d Cir.1991). Since we do not decide the constitutionality of the New York statute, we need not discuss the relevance or persuasiveness of the decision.
. [T]he [Supreme] Court [in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) ] held that in addition to objective limits on discretion, content-based prior restraints must contain three procedural safeguards. First, the licensor must be required to decide whether to issue the license "within a specified brief period” during which the status quo is maintained, id. at 59, 85 S.Ct. 734; second, “a prompt final judicial decision” must be assured, id.; and third, the burden of proving that the expression is unprotected must rest with the censor, see id. at 58, 85 S.Ct. 734.
Beal, 184 F.3d at 128.
. Plaintiff's counsel explained that "the particular evil to which this injunction was addressed” was "to simply prevent the police from arresting Mr. Tuniek before he takes his picture.” Tr. Oral Arg. at 29. "[T]he emphasis of this case and the purpose was to prevent [Tuniek] from being arrested before his picture could be taken.” Id. "The litigation,” he continued, “was directed toward obtaining an injunction against the prior restraint.” Id. at 30.
. Protection for Tunick’s expression under the New York State Constitution may well be broader than it is under the First Amendment. See generally Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249, 567 N.E.2d 1270, 1278, 566 N.Y.S.2d 906, 914 (1991) ("[T]he protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by the Federal Constitution.” (internal quotation marks and citation omitted.)) Its breadth adds significance to our certification of the New York constitutional question to the Court of Appeals.
. I do note that Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997), upon which Judge Cala-bresi builds his argument, did not involve a prior restraint on expression. The Court also did not suggest that even in the case before it certification was mandatory — it decided merely that “the certification requests merited more respectful consideration than they [had] received” in the Ninth Circuit. Id. at 78, 117 S.Ct. 1055.
. Cf. Gertz v. Robert Welch, Inc., 418 U.S. 323, 354, 94 S.Ct. 2997, 41 L.Ed.2d 789 (Blackmun, J., concurring) ("If my vote were not needed to create a majority, I would adhere to my ... view. A definitive ruling, however, is paramount.” (citations omitted)).