(1963), and the very existence of such laws may stifle the expressive activity of others not before the court. Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395. Therefore, the ordinary rules of standing are relaxed in such cases. Id.; Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.
In the First Amendment context, there are two different ways in which a law may be invalidated on its face: (1) if the law is overbroad or (2) if the law is unconstitutional in every application. City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Grafton characterizes plaintiffs facial attack as an overbreadth challenge. However, plaintiffs argument is not that the ordinance is overbroad, but rather that it is unconstitutional in every application. The two challenges are distinct, particularly in the context of licensing provisions.
A law is overbroad when, although it constitutionally regulates some conduct, it sweeps so broadly that it also covers a substantial amount of constitutionally protected conduct. See Broadrick, 413 U.S. at 611-15, 93 S.Ct. 2908; Wil-Kar, Inc. v. Vill. of Germantown, 153 F.Supp.2d 982, 990 (E.D.Wis.2001). Over-broad statutes may be facially attacked because their very existence may discourage persons from engaging in protected expression out of fear of prosecution under the law. Broadrick, 413 U.S. at 612, 93 S.Ct. 2908.
A law is unconstitutional in every application when it does not constitutionally regulate any speech. Taxpayers for Vincent, 466 U.S. at 796, 104 S.Ct. 2118. Facial challenges under the First Amendment to laws of this type are permitted because “any attempt to enforce such legislation would create an unacceptable risk of the suppression of ideas.” Id. at 797, 104 S.Ct. 2118. Laws that have been found to be unconstitutional in every application include: (1) laws that are content-based, see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992); (2) laws that are enacted for the impermissible purpose of suppressing speech, see Taxpayers for Vincent, 466 U.S. at 797 n. 14, 104 S.Ct. 2118 (1984) (listing Stromberg v. Cal., 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), and Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938), as cases involving facial invalidations resting on this ground); and (3) laws that confer unbridled discretion on administrative officials, see, e.g., Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). See generally, Isserles, supra, at 393.
Grafton’s ordinance requires those who wish to offer erotic entertainment to first obtain a license; therefore, it constitutes a “prior restraint” on protected expression. See Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. There is a “heavy presumption” against prior restraints, which will be upheld only if they meet certain constitutional requirements. Id. One of those requirements is that the law “not delegate overly broad licensing discretion to a government official.” Id.
Plaintiff claims that because the Grafton ordinance confers unbridled discretion on administrative officials, the ordinance constitutes a prior restraint that is unconstitutional in every application. Where a claim is made that a licensing provision vests unbridled discretion in a government official, it is well settled that a person who will be affected by the provision has standing to bring a facial challenge without first applying for a license. FW/PBS, Inc. v. Dallas, 493 U.S. 215, 223, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Lakewood, 486 U.S. at 755-56, 108 S.Ct. 2138; Freedman v. Md., 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). This rule is necessary to prevent the two evils