Petitioner, a candidate for state office, who was refused
available advertising space on vehicles of a city transit system,
brought this suit challenging the constitutionality of the
municipal policy on which the refusal was based of not permitting
political advertising but allowing other types of public transit
advertising. The state courts declined to give petitioner relief,
the Ohio Supreme Court holding that the city's refusal did not
violate a candidate's free speech or equal protection rights.
Held: The judgment is affirmed. Pp.
418 U. S.
302-308.
34 Ohio St.2d 143, 296 N.E.2d 683, affirmed.
MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR. JUSTICE
WHITE, and MR. JUSTICE REHNQUIST, concluded that car card space on
a city transit system is not a First Amendment forum, and that here
the decision to limit transit advertisements to innocuous and less
controversial commercial and service-oriented advertising -- thus
minimizing chances of abuse, appearances of political favoritism,
and the risk of imposing upon a captive audience -- is within the
city's discretion, and involves no First or Fourteenth Amendment
violation. Pp.
418 U. S.
302-304.
MR. JUSTICE DOUGLAS concluded that petitioner, though free to
express his views to a willing audience, has no constitutional
right to force his message upon a captive audience, which uses
public transit vehicles not as a place for discussion, but only as
a means of transport. Pp. 305-308
BLACKMUN, J., announced the Court's judgment and delivered an
opinion, in which BURGER, C.J., and WHITE and REHNQUIST, JJ.,
joined. DOUGLAS, J., filed an opinion concurring in the judgment,
post, p.
418 U. S. 305.
BRENNAN, J., filed a dissenting opinion, in which STEWART,
MARSHALL, and POWELL, JJ., joined,
post, p.
418 U. S.
308.
Page 418 U. S. 299
MR. JUSTICE BLACKMUN announced the judgment of the Court and an
opinion, in which THE CHIEF JUSTICE, MR. JUSTICE WHITE, and MR.
JUSTICE REHNQUIST join.
This case presents the question whether a city which operates a
public rapid transit system and sells advertising space for car
cards on its vehicles is required by the First and Fourteenth
Amendments to accept paid political advertising on behalf of a
candidate for public office.
In 1970, petitioner Harry J. Lehman was a candidate for the
office of State Representative to the Ohio General Assembly for
District 56. The district includes the city of Shaker Heights. On
July 3, 1970, petitioner sought to promote his candidacy by
purchasing car card space on the Shaker Heights Rapid Transit
System for the months of August, September, and October. The
general election was scheduled for November 3. Petitioner's
proposed copy contained his picture and read:
HARRY J. LEHMAN IS OLD-FASHIONED!
ABOUT HONESTY, INTEGRITY AND GOOD
GOVERNMENT
State Representative District 66 [X] Harry J.
Lehman.
App. 39A.
Advertising space on the city's transit system is managed by
respondent Metromedia, Inc., as exclusive agent under contract with
the city. The agreement between the city and Metromedia
provides:
"15. . . . The CONTRACTOR shall not place political advertising
in or upon any of the said CARS or in,
Page 418 U. S. 300
upon or about any other additional and further space granted
hereunder. [
Footnote 1]"
When petitioner applied for space, [
Footnote 2] he as informed by Metromedia that, although
space was then available, the management agreement with the city
did not permit political advertising. [
Footnote 3] The system, however, accepted ads from
cigarette companies, banks, savings and loan associations, liquor
companies, retail and service establishments, churches, and civic
and public service oriented groups. [
Footnote 4] There was uncontradicted testimony at the
trial that, during the 26 years of public operation, the Shaker
Heights system, pursuant to city council action,
Page 418 U. S. 301
had not accepted or permitted any political or public issue
advertising on its vehicles. App. 30A-32A.
When petitioner did not succeed in his effort to have his copy
accepted, he sought declaratory and injunctive relief in the state
courts of Ohio without success. The Supreme Court of Ohio concluded
that
"the constitutionally protected right of free speech with
respect to forums for oral speech, or the dissemination of
literature on a city's streets, does not extend to commercial or
political advertising on rapid transit vehicles."
34 Ohio St.2d 143, 14146, 296 N.E.2d 683, 685 (1973). There was
no equal protection violation, the court said, because, "[a]s a
class, all candidates for political office are treated alike under
the Shaker Heights Rapid Transit System's commercial advertising
policy."
Id. at 148, 296 N.E.2d at 686. The three
dissenting justices viewed the transit system's advertising space
as a free speech forum, and would have held that no valid
governmental interest was furthered by the differential treatment
between political and other advertising. A policy excluding
political advertisements, in their view, would therefore deny
political advertisers the equal protection of the law. We granted
certiorari in order to consider the important First and Fourteenth
Amendment question the case presented. [
Footnote 5] 414 U.S. 1021 (1973).
It is urged that the car cards here constitute a public forum
protected by the First Amendment, and that there is a guarantee of
nondiscriminatory access to such publicly owned and controlled
areas of communication "regardless of the primary purpose for which
the area is dedicated." Brief for Petitioner 14.
Page 418 U. S. 302
We disagree. In
Packer Corp. v. Utah, 285 U.
S. 105,
285 U. S. 110
(1932), Mr. Justice Brandeis, in speaking for a unanimous Court,
recognized that "there is a difference which justifies the
classification between display advertising and that, in periodicals
or newspapers." In
Packer, the Court upheld a Utah statute
that made it a misdemeanor to advertise cigarettes on "
any bill
board, street car sign, street car, placard,'" but exempted
dealers' signs on their places of business and cigarette
advertising "`in any newspaper, magazine, or periodical.'"
Id. at 285 U. S. 107.
The Court found no equal protection violation. It reasoned that
viewers of billboards and streetcar signs had no "choice or
volition" to observe such advertising and had the message
"thrust upon them by all the arts and devices that skill can
produce. . . . The radio can be turned off, but not so the
billboard or street car placard."
Id. at
285 U. S. 110.
"The streetcar audience is a captive audience. It is there as a
matter of necessity, not of choice."
Public Utilities Comm'n v.
Pollak, 343 U. S. 451,
343 U. S. 468
(1952) (Douglas, J., dissenting). In such situations, "[t]he
legislature may recognize degrees of evil and adapt its legislation
accordingly."
Packer Corp. v. Utah, 285 U.S. at
285 U. S. 110.
Cf. Breard v. Alexandria, 341 U.
S. 622 (1951).
These situations are different from the traditional settings
where First Amendment values inalterably prevail. Lord Dunedin, in
M'Ara v. Magistrates of Edinburgh, [1913] Sess.Cas. 1059,
1073-1074, said:
"[T]he truth is that open spaces and public places differ very
much in their character, and before you could say whether a certain
thing could be done in a certain place you would have to know the
history of the particular place."
Although American constitutional jurisprudence, in the light of
the First Amendment, has been jealous to preserve access to public
places for purposes of free speech, the nature of the forum and the
conflicting interests involved have
Page 418 U. S. 303
remained important in determining the degree of protection
afforded by the Amendment to the speech in question.
See, e.g.,
Cox v. New Hampshire, 312 U. S. 569
(1941);
Breard v. Alexandria, supra; Poulos v. New
Hampshire, 345 U. S. 395
(1953);
Cox v. Louisiana, 379 U.
S. 559 (1965);
Adderley v. Florida,
385 U. S. 39
(1966);
Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367 (1969);
Police Department of Ohio v.
Mosley, 408 U. S. 92
(1972);
Grayned v. City of Rockford, 408 U.
S. 104 (1972);
Columbia Broadcasting v. Democratic
National Committee, 412 U. S. 94
(1973);
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human
Relations, 413 U. S. 376
(1973).
Here, we have no open spaces, no meeting hall, park, street
corner, or other public thoroughfare. Instead, the city is engaged
in commerce. It must provide rapid, convenient, pleasant, and
inexpensive service to the commuters of Shaker Heights. The car
card space, although incidental to the provision of public
transportation, is a part of the commercial venture. In much the
same way that a newspaper or periodical, or even a radio or
television station, need not accept every proffer of advertising
from the general public, a city transit system has discretion to
develop and make reasonable choices concerning the type of
advertising that may be displayed in its vehicles. In making these
choices, this Court has held that a public utility
"will be sustained in its protection of activities in public
places when those activities do not interfere with the general
public convenience, comfort and safety."
Public Utilities Comm'n v. Pollak, 343 U.S. at
343 U. S.
464-465.
Because state action exists, however, the policies and practices
governing access to the transit system's advertising space must not
be arbitrary, capricious, or invidious. Here, the city has decided
that
"[p]urveyors
Page 418 U. S. 304
of goods and services saleable in commerce may purchase
advertising space on an equal basis, whether they be house builders
or butchers."
34 Ohio St.2d at 146, 296 N.E.2d at 685. This decision is little
different from deciding to impose a 10-, 25-, or 35-cent fare, or
from changing schedules or the location of bus stops,
Public
Utilities Comm'n v. Pollak, 343 U.S. at
343 U. S. 465.
Revenue earned from long-term commercial advertising could be
jeopardized by a requirement that short-term candidacy or
issue-oriented advertisements be displayed on car cards. Users
would be subjected to the blare of political propaganda. There
could be lurking doubts about favoritism, and sticky administrative
problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to
limit car card space to innocuous and less controversial commercial
and service-oriented advertising does not rise to the dignity of a
First Amendment violation. Were we to hold to the contrary, display
cases in public hospitals, libraries, office buildings, military
compounds, and other public facilities immediately would become
Hyde Parks open to every would-be pamphleteer and politician. This
the Constitution does not require.
No First Amendment forum is here to be found. The city
consciously has limited access to its transit system advertising
space in order to minimize chances of abuse, the appearance of
favoritism, and the risk of imposing upon a captive audience. These
are reasonable legislative objectives advanced by the city in a
proprietary capacity. In these circumstances, there is no First or
Fourteenth Amendment violation.
The judgment of the Supreme Court of Ohio is affirmed.
It is so ordered.
Page 418 U. S. 305
[
Footnote 1]
Metromedia has a written Metro Transit Advertising Copy Policy
setting forth the following criteria:
"(1) Metro Transit Advertising will not display advertising copy
that is false, misleading, deceptive and/or offensive to the moral
standards of the community, or contrary to good taste. Copy which
might be contrary to the best interests of the transit systems, or
which might result in public criticism of the advertising industry
and/or transit advertising will not be acceptable."
"(2) Metro Transit Advertising will not accept any political
copy that pictorially, graphically or otherwise states or suggests
that proponents or opponents of the persons or measures advertised
are vulgar, greedy, immoral, monopolistic, illegal or unfair."
"
* * * *"
"(10) Political advertising will not be accepted on following
systems: Shaker Rapid -- Maple Heights -- North Olmsted -- Euclid,
Ohio."
Shaker Heights' Exhibit A.
[
Footnote 2]
Mr. Lehman testified:
"We are using various methods [of promoting my candidacy],
including newspaper advertising. . . . We plan to use direct mail
advertising, postcards, and circulars of various types."
App. 14A.
[
Footnote 3]
The system operated only 55 cars, App. 15A, each with 20
advertising spaces. Tr. of Oral Arg. 224.
[
Footnote 4]
Receipts from the sale of advertising amounted to $12,000
annually. Tr. of Oral Arg. 27. These receipts supplemented
operating revenues generated from the fares paid by the passengers
who used the system daily.
[
Footnote 5]
Cf. Wirta v. Alameda-Contra Costa Transit
District, 68 Cal. 2d 51,
434 P.2d 982 (1967);
Kissinger v. New York City Transit
Authority, 274 F.
Supp. 438 (SDNY 1967);
Hillside Community Church v. City of
Tacoma, 76 Wash. 2d
63,
455 P.2d
350 (1969).
MR. JUSTICE DOUGLAS, concurring in the judgment.
Petitioner, a candidate for state office, attempted to purchase
space for paid political advertising on vehicles of the Shaker
Heights Rapid Transit System, a system owned and operated by the
city of Shaker Heights, Ohio. Metromedia, Inc., the exclusive
advertising agent for the system, refused petitioner the space on
the basis of a contract with the system prohibiting the acceptance
of political advertisements. Petitioner unsuccessfully sought
injunctive relief in the state courts to restrain the city and
Metromedia from refusing his advertising.
The petitioner contends that, by selling advertising space, the
city had turned its buses into free speech forum, and the city is
now prohibited by the First Amendment, applicable to the States
through the Fourteenth, [
Footnote
2/1] from refusing space for political advertisements.
My Brother BRENNAN would find that
"[a] forum for communication was voluntarily established when
the city installed the physical facilities for the advertisements
and, by contract with Metromedia, created the necessary
administrative machinery for regulating access to that forum."
Post at
418 U. S. 314.
If the streetcar or bus were a forum for communication akin to that
of streets or public parks, considerable problems would be
presented.
"The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions
may be regulated in the interest of all . . . , but it must not, in
the guise of regulation, be abridged or denied."
Hague v. CIO, 307 U. S. 496,
307 U. S.
515-516.
Page 418 U. S. 306
But a streetcar or bus is plainly not a park or sidewalk or
other meeting place for discussion, any more than is a highway. It
is only a way to get to work or back home. The fact that it is
owned and operated by the city does not, without more, make it a
forum.
Bus and streetcar placards are in the category of highway
billboards, which have long been used to display an array of
commercial and political messages. But this particular form of
communication has been significantly curtailed by state regulation
adopted pursuant to the Highway Beautification Act of 1965, 23
U.S.C. § 131, which conditions certain federal highway funds upon
strict regulation of highway advertising. Ohio is among the States
which have sought to protect the interests of their motorists
[
Footnote 2/2] by enacting
regulations pursuant to the Act. Ohio Rev.Code Ann. § 5516.01
et seq. (Supp. 1973). The fact that land on which a
billboard rests is municipal land does not curtail or enhance such
regulatory schemes.
If a bus is a forum, it is more akin to a newspaper than to a
park. Yet if a bus is treated as a newspaper, then, as we hold this
date,
Miami Herald Publishing Co. v. Tornillo, ante, p.
418 U. S. 241, the
owner cannot be forced to include in his offerings news or other
items which outsiders may desire but which the owner abhors.
Newspaper cases are cited to support petitioner's claim. The First
Amendment, however, draws no distinction between press privately
owned and press owned otherwise. And if we are to turn a bus or
streetcar into either a newspaper or a park, we take great
liberties with people
Page 418 U. S. 307
who, because of necessity, become commuters, and, at the same
time, captive viewers or listeners.
In asking us to force the system to accept his message as a
vindication of his constitutional rights, the petitioner overlooks
the constitutional rights of the commuters. While petitioner
clearly has a right to express his views to those who wish to
listen, he has no right to force his message upon an audience
incapable of declining to receive it. In my view, the right of the
commuters to be free from forced intrusions on their privacy
precludes the city from transforming its vehicles of public
transportation into forums for the dissemination of ideas upon this
captive audience.
Buses are not recreational vehicles used for Sunday chautauquas,
as a public park might be used on holidays for such a purpose; they
are a practical necessity for millions in our urban centers. I have
already stated this view in my dissent in
Public Utilities
Comm'n v. Pollak, 343 U. S. 451,
343 U. S. 469,
involving the challenge by some passengers to the practice of
broadcasting radio programs over loudspeakers in buses and
streetcars:
"One who tunes in on an offensive program at home can turn it
off or tune in another station, as he wishes. One who hears
disquieting or unpleasant programs in public places, such as
restaurants, can get up and leave. But the man on the streetcar has
no choice but to sit and listen, or perhaps to sit and to try not
to listen."
There is no difference when the message is visual, not
auricular. In each, the viewer or listener is captive.
I agree with Mr. Justice Brandeis, who, quoting from a Utah
State Court decision, [
Footnote
2/3] said that the visual message in streetcars is no
different, for
"'[a]dvertisements of this sort are constantly before the eyes
of observers
Page 418 U. S. 308
on the streets and in street cars, to be seen without the
exercise of choice or volition on their part. Other forms of
advertising are ordinarily seen as a matter of choice on the part
of the observer. . . . In the case of newspapers and magazines,
there must be some seeking by the one who is to see and read the
advertisement. The radio can be turned off, but not so the
billboard or street car placard.'"
Packer Corp. v. Utah, 285 U. S. 105,
285 U. S.
110.
I do not view the content of the message as relevant either to
petitioner's right to express it or to the commuters' right to be
free from it. Commercial advertisements may be as offensive and
intrusive to captive audiences as any political message. But the
validity of the commercial advertising program is not before us,
since we are not faced with one complaining of an invasion of
privacy through forced exposure to commercial ads. Since I do not
believe that petitioner has any constitutional right to spread his
message before this captive audience, I concur in the Court's
judgment.
[
Footnote 2/1]
The Court has frequently rested state free speech and free press
decisions on the Fourteenth Amendment generally, rather than on the
Due Process Clause alone.
See, e.g., Bridges v.
California, 314 U. S. 252,
314 U. S. 263
n. 6;
Saia v. New York, 334 U. S. 558,
334 U. S. 560;
Elfbrandt v. Russell, 384 U. S. 11,
384 U. S. 18;
Mills v. Alabama, 384 U. S. 214,
384 U. S.
218.
[
Footnote 2/2]
In a survey of motorists in Ohio, 71% expressed the opinion that
billboards should be banned from the interstate highway system.
Hearings on S. 1467 before the Subcommittee on Roads of the Senate
Committee on Public Works, 90th Cong., 1st Sess., 444 (1967).
[
Footnote 2/3]
77 Utah 500, 515, 297 P. 1013, 1019 (1931).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART, MR. JUSTICE
MARSHALL, and MR. JUSTICE POWELL join, dissenting.
The city of Shaker Heights owns and operates the Shaker Heights
Rapid Transit System, an interurban electric railroad line
consisting of approximately 55 transit cars which transport
passengers between Shaker Heights and Cleveland. Each of the cars
contains 20 interior advertising spaces available for lease through
the Metro Transit Division of Metromedia, Inc., the transit
system's exclusive advertising agent. By agreement with the city,
Metromedia accepts commercial and public service advertising, but
will not accept "political advertising."
Prior to Ohio's 1970 general election, Harry J. Lehman, a
candidate for the office of State Representative to the
Page 418 U. S. 309
Ohio General Assembly for the 56th District, attempted to lease
advertising space on the Shaker Heights Rapid Transit System,
because, as he later testified, "the vast majority of its six to
eight thousand riders each day are residents of the district. . .
." (App. 14A). Although advertising space was available and
Lehman's proposed advertisement [
Footnote 3/1] met Metromedia's copy standards, [
Footnote 3/2] rental space was nevertheless
denied Lehman on
Page 418 U. S. 310
the sole ground that Metromedia's contract with the city forbids
acceptance of "political advertising."
After an unsuccessful attempt to persuade the city to alter its
ban against political advertisements, Lehman commenced this action
in the Court of Common Pleas for Cuyahoga County, Ohio, seeking
declaratory and injunctive relief on the ground that the city's
policy of prohibiting political advertisements infringed his
freedom of speech and denied him equal protection of the laws.
Finding no constitutional infirmities, the trial court denied
relief, and was affirmed by both the Cuyahoga County Court of
Appeals and the Supreme Court of Ohio.
I would reverse. In my view, the city created a forum for the
dissemination of information and expression of ideas when it
accepted and displayed commercial and public service advertisements
on its rapid transit vehicles. Having opened a forum for
communication, the city is barred by the First and Fourteenth
Amendments from discriminating among forum users solely on the
basis of message content.
I
The message Lehman sought to convey concerning his candidacy for
public office was unquestionably protected by the First Amendment.
That constitutional safeguard was fashioned to encourage and
nurture "uninhibited, robust, and wide-open" self-expression,
particularly
Page 418 U. S. 311
in matters of governing importance.
New York Times Co. v.
Sullivan, 376 U. S. 254,
376 U. S. 270
(1964). "For speech concerning public affairs is more than
self-expression; it is the essence of self-government."
Garrison v. Louisiana, 379 U. S. 64,
379 U. S. 74-75
(1964).
"The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will
of the people and that changes may be obtained by lawful means, an
opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system."
Stromberg v. California, 283 U.
S. 359,
283 U. S. 369
(1931). The fact that the message is proposed as a paid
advertisement does not diminish the impregnable shelter afforded by
the First Amendment.
See New York Times Co. v. Sullivan,
supra, at
376 U. S.
271.
Of course, not even the right of political self-expression is
completely unfettered. As we stated in
Cox v. Louisiana,
379 U. S. 536,
379 U. S. 554
(1965):
"The rights of free speech and assembly, while fundamental in
our democratic society, still do not mean that everyone with
opinions or beliefs to express may address a group at any public
place and at any time. The constitutional guarantee of liberty
implies the existence of an organized society maintaining public
order, without which liberty itself would be lost in the excesses
of anarchy."
Accordingly, we have repeatedly recognized the constitutionality
of reasonable "time, place and manner" regulations which are
applied in an evenhanded fashion.
See, e.g., Police Department
of Chicago v. Mosley, 408 U. S. 92,
408 U. S. 98
(1972);
Grayned v. City of Rockford, 408 U.
S. 104,
408 U. S. 115
(1972);
Cox v. Louisiana, supra, at
379 U. S.
554-555;
Poulos v. New Hampshire, 345 U.
S. 395,
345 U. S. 398
(1953);
Cox v. New Hampshire, 312 U.
S. 569,
312 U. S.
575-576 (1941);
Schneider v. State,
308 U. S. 147,
308 U. S. 160
(1939).
Page 418 U. S. 312
Focusing upon the propriety of regulating "place," the city of
Shaker Heights attempts to justify its ban against political
advertising by arguing that the interior advertising space of a
transit car is an inappropriate forum for political expression and
debate. Brief for Respondents 7. To be sure, there are some public
places which are so clearly committed to other purposes that their
use as public forums for communication is anomalous. For
example,
"[t]here may be some instances in which assemblies and petitions
for redress of grievances are not consistent with other necessary
purposes of public property. A noisy meeting may be out of keeping
with the serenity of the statehouse or the quiet of the courthouse.
No one . . . would suggest that the Senate gallery is the proper
place for a vociferous protest rally. And in other cases, it may be
necessary to adjust the right to petition for redress of grievances
to the other interests inhering in the uses to which the public
property is normally put."
Adderley v. Florida, 385 U. S. 39,
385 U. S. 54
(1966) (DOUGLAS, J., dissenting). The determination of whether a
particular type of public property or facility constitutes a
"public forum" requires the Court to strike a balance between the
competing interests of the government, on the one hand, and the
speaker and his audience, on the other. [
Footnote 3/3] Thus, the Court must assess the importance
of the primary use to which the public property or facility is
committed and the extent to which that use will be disrupted if
access for free expression is permitted. Applying these principles,
the Court has long recognized the public's right of access to
public streets and
Page 418 U. S. 313
parks for expressive activity. As Mr. Justice Roberts wrote in
Hague v. CIO, 307 U. S. 496,
307 U. S.
515-516 (1939):
"Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time
out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been
a part of the privileges, immunities, rights, and liberties of
citizens. The privilege of a citizen of the United States to use
the streets and parks for communication of views on national
questions may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to
the general comfort and convenience, and in consonance with peace
and good order; but it must not, in the guise of regulation, be
abridged or denied."
See also Jamison v. Texas, 318 U.
S. 413 (1943);
Cox v. Louisiana, supra. More
recently, the Court has added state capitol grounds to the list of
public forums compatible with free speech, free assembly, and the
freedom to petition for redress of grievances,
Edwards v. South
Carolina, 372 U. S. 229
(1963), but denied similar status to the curtilage of a jailhouse,
on the ground that jails are built for security, and thus need not
be opened to the general public,
Adderley v. Florida,
385 U. S. 39
(1966). [
Footnote 3/4]
In the circumstances of this case, however, we need not decide
whether public transit cars must be made
Page 418 U. S. 314
available as forums for the exercise of First Amendment rights.
By accepting commercial and public service advertising, the city
effectively waived any argument that advertising in its transit
cars is incompatible with the rapid transit system's primary
function of providing transportation. A forum for communication was
voluntarily established when the city installed the physical
facilities for the advertisements and, by contract with Metromedia,
created the necessary administrative machinery for regulating
access to that forum. [
Footnote
3/5]
The plurality opinion, however, contends that, as long as the
city limits its advertising space to "innocuous and less
controversial commercial and service oriented advertising," no
First Amendment forum is created.
Ante at
418 U. S. 304.
I find no merit in that position. Certainly, noncommercial public
service advertisements convey messages of public concern, and are
clearly protected by the First Amendment. And while it is possible
that commercial advertising may be accorded less First Amendment
protection than speech concerning political and social issues of
public importance,
compare Valentine v. Chrestensen,
316 U. S. 52
(1942),
with Schneider v. State, 308 U.
S. 147 (1939),
and Breard v. City of
Alexandria, 341 U. S. 622
(1951),
with Martin v. City of Struthers, 319 U.
S. 141 (1943), it is "speech" nonetheless, often
communicating information and ideas found by many persons to be
controversial. [
Footnote 3/6] There
can be no question
Page 418 U. S. 315
that commercial advertisements, when skillfully employed, are
powerful vehicles for the exaltation of commercial values. Once
such messages have been accepted and displayed, the existence of a
forum for communication cannot be gainsaid. To hold otherwise, and
thus sanction the city's preference for bland commercialism and
noncontroversial public service messages over "uninhibited, robust,
and wide-open" debate on public issues, would reverse the
traditional priorities of the First Amendment. [
Footnote 3/7]
II
Once a public forum for communication has been established, both
free speech and equal protection principles prohibit discrimination
based solely upon subject matter or content. [
Footnote 3/8]
See, e.g., Police Department
of
Page 418 U. S. 316
Chicago v. Mosley, 408 U.S. at
408 U. S. 95-96;
Cox v. Louisiana, 379 U. S. 559,
379 U. S. 581
(1965) (Black, J., concurring and dissenting);
Fowler v. Rhode
Island, 345 U. S. 67
(1953);
Niemotko v. Maryland, 340 U.
S. 268,
340 U. S.
272-273 (1951).
"Necessarily, then, under the Equal Protection Clause, not to
mention the First Amendment itself, government may not grant the
use of a forum to people whose views it finds acceptable, but deny
use to those wishing to express less favored or more controversial
views. And it may not select which issues are worth discussing or
debating in public facilities. There is an 'equality of status in
the field of ideas,' and government must afford all points of view
an equal opportunity to be heard. Once a forum is opened up to
assembly or speaking by some groups, government may not prohibit
others from assembling or speaking on the basis of what they intend
to say. Selective exclusions from a public forum may not be based
on content alone, and may not be justified by reference to content
alone."
Police Department of Chicago v. Mosley, supra, at
408 U. S. 96
(footnote omitted). That the discrimination is among entire classes
of ideas, rather than among points of view within a particular
class, does not render it any less odious. Subject matter or
content censorship in any form is forbidden. [
Footnote 3/9]
To insure that subject matter or content is not the sole basis
for discrimination among forum users, all
Page 418 U. S. 317
selective exclusions from a public forum must be closely
scrutinized and countenanced only in cases where the government
makes a clear showing that its action was taken pursuant to neutral
"time, place and manner" regulations, narrowly tailored to protect
the government's substantial interest in preserving the viability
and utility of the forum itself.
See, e.g., Police Department
of Chicago v. Mosley, supra at
408 U. S.
98-102;
Grayned v. City of Rockford, 408 U.S.
at
408 U. S.
115-117;
Shuttlesworth v. Birmingham,
394 U. S. 147,
394 U. S.
152-153 (1969);
Tinker v. Des Moines School
District, 393 U. S. 503,
393 U. S. 508,
393 U. S. 514
(1969);
cf. Dunn v. Blumstein, 405 U.
S. 330,
405 U. S.
336-337 (1972);
Williams v. Rhodes,
393 U. S. 23,
393 U. S. 31
(1968). The city has failed to discharge that heavy burden in the
present case.
The Court's special vigilance is triggered in this case because
of the city's undisputed ban against political advertising in its
transit cars. Commercial and public service advertisements are
routinely accepted for display, while political messages are
absolutely prohibited. Few examples are required to illustrate the
scope of the city's policy and practice. For instance, a commercial
advertisement peddling snowmobiles would be accepted, while a
counter-advertisement calling upon the public to support
legislation controlling the environmental destruction and noise
pollution caused by snowmobiles would be rejected. Alternatively, a
public service ad by the League of Women Voters would be permitted,
advertising the existence of an upcoming election and imploring
citizens to vote, but a candidate, such as Lehman, would be barred
from informing the public about his candidacy, qualifications for
office, or position on particular issues. These, and other
examples, [
Footnote 3/10] make
perfectly clear that the selective
Page 418 U. S. 318
exclusion of political advertising is not the product of
evenhanded application of neutral "time, place, and manner"
regulations. Rather, the operative -- and constitutionally
impermissible -- distinction is the message on the sign. That
conclusion is not dispelled by any of the city's asserted
justifications for selectively excluding political advertising.
The city contends that its ban against political advertising is
bottomed upon its solicitous regard for "captive riders" of the
rapid transit system, who are "forced to endure the advertising
thrust upon [them]." Brief for Respondents 8. Since its rapid
transit system is primarily a mode of transportation, the city
argues that it
Page 418 U. S. 319
may prohibit political advertising in order to shield its
transit passengers from sometimes controversial or unsettling
speech. Whatever merit the city's argument might have in other
contexts, it has a hollow ring in the present case, where the city
has voluntarily opened its rapid transit system as a forum for
communication. In that circumstance, the occasional appearance of
provocative speech should be expected. Indeed, the Court has
recognized that
"a function of free speech under our system of government is to
invite dispute. . . . Speech is often provocative and challenging.
It may strike at prejudices and preconceptions, and have profound
unsettling effects as it presses for acceptance of an idea."
Terminiello v. Chicago, 337 U. S.
1,
337 U. S. 4
(1949).
The line between ideological and nonideological speech is
impossible to draw with accuracy. By accepting commercial and
public service advertisements, the city opened the door to
"sometimes controversial or unsettling speech," and determined that
such speech does not unduly interfere with the rapid transit
system's primary purpose of transporting passengers. In the eyes of
many passengers, certain commercial or public service messages
[
Footnote 3/11] are as profoundly
disturbing as some political advertisements might be to other
passengers. There is certainly no evidence in the record of this
case indicating that political advertisements, as a class, are so
disturbing when displayed that they are more likely than commercial
or public service advertisements to impair the rapid transit
system's primary function of transportation. In the absence of such
evidence, the city's selective exclusion of political advertising
constitutes an invidious discrimination
Page 418 U. S. 320
on the basis of subject matter, in violation of the First and
Fourteenth Amendments.
Moreover, even if it were possible to draw a manageable line
between controversial and noncontroversial messages, the city's
practice of censorship for the benefit of "captive audiences" still
would not be justified. [
Footnote
3/12] This is not a case where an unwilling or unsuspecting
rapid transit rider is powerless to avoid messages he deems
unsettling. The advertisements accepted by the city and Metromedia
are not broadcast over loudspeakers in the transit cars. The
privacy of the passengers is not, therefore, dependent upon their
ability "to sit and to try not to listen."
Public Utilities
Comm'n v. Pollak, 343 U. S. 451,
343 U. S. 469
(1952) (DOUGLAS, J., dissenting);
cf. Kovacs v. Cooper,
336 U. S. 77
(1949);
Saia v. New York, 334 U.
S. 558,
334 U. S. 562
(1948). Rather, all advertisements accepted for display are in
written form. Transit passengers are not forced or compelled to
read any of the messages, nor are they "incapable of declining to
receive [them],"
ante at
418 U. S. 307
(DOUGLAS, J., concurring). Should passengers chance to glance at
advertisements they find offensive, they can "effectively avoid
further bombardment of their sensibilities simply by averting their
eyes."
Cohen v. California, 403 U. S.
15,
403 U. S. 21
(1971). Surely that minor inconvenience
Page 418 U. S. 321
is a small price to pay for the continued preservation of so
precious a liberty as free speech.
The city's remaining justification is equally unpersuasive. The
city argues that acceptance of
"political advertisements in the cars of the Shaker Heights
rapid transit, would suggest, on the one hand, some political
favoritism is being granted to candidates who advertise, or, on the
other hand, that the candidate so advertised is being supported or
promoted by the government of the City."
Brief for Respondents 8. Clearly, such ephemeral concerns do not
provide the city with
carte blanche authority to exclude
an entire category of speech from a public forum.
"These pragmatic hurdles are no more relevant to a public forum
when it is a motor coach than they are to a public park or a school
auditorium. The endorsement of an opinion expressed in an
advertisement on a motor coach is no more attributable to the
transit district than the view of a speaker in a public park is to
the city administration or the tenets of an organization using
school property for meetings is to the local school board."
Wirta v. Alameda-Contra Costa Transit
District, 68 Cal. 2d 51,
61, 434 P.2d 982, 989 (1967). The city has introduced no evidence
demonstrating that its rapid transit passengers would naively think
otherwise. And though there may be "lurking doubts about
favoritism,"
ante at
418 U. S. 304,
the Court has held that "[n]o such remote danger can justify the
immediate and crippling impact on the basic constitutional rights
involved in this case."
Williams v. Rhodes, 393 U.S. at
393 U. S.
33.
Moreover, neutral regulations, which do not distinguish among
advertisements on the basis of subject matter, can be narrowly
tailored to allay the city's fears. The impression of city
endorsement can be dispelled by requiring disclaimers to appear
prominently on the face of
Page 418 U. S. 322
every advertisement. [
Footnote
3/13] And while problems of accommodating all potential
advertisers may be vexing at time, the appearance of favoritism can
be avoided by the evenhanded regulation of time, place, and manner
for all advertising, irrespective of subject matter.
I would, therefore, reverse the judgment of the Supreme Court of
Ohio and remand this case for further proceedings not inconsistent
with this opinion.
[
Footnote 3/1]
The text of the proposed advertisement read as follows:
"Harry J. Lehman Is Old Fashioned!/About Honesty, Integrity And
Good Government/State Representative -- District 56."
[
Footnote 3/2]
The Metro Transit Advertising Copy Policy states:
"(1) Metro Transit Advertising will not display advertising copy
that is false, misleading, deceptive and/or offensive to the moral
standards of the community, or contrary to good taste. Copy which
might be contrary to the best interests of the transit systems, or
which might result in public criticism of the advertising industry
and/or transit advertising will not be acceptable."
"(2) Metro Transit Advertising will not accept any political
copy that pictorially, graphically or otherwise states or suggests
that proponents or opponents of the persons or measures advertised
are vulgar, greedy immoral, monopolistic, illegal or unfair."
"(3) All copy subject to approval. Rough sketches with proposed
copy required on all political advertising."
"(4) Metro Transit Advertising reserves the right at all times
to decline both sides of any proposition and/or opposing
candidates."
"(5) Political advertising must carry, visible within the
advertising area of the poster, the tag-line:"
" Paid Political Advertising Sponsored by . . ."
"in letters sized as follows:"
Exterior: 30" x 144" King size posters -- 1"
21" x 44" Traveling displays -- 1/2"
21" x 72" Taillight spectacular -- 1"
Interior: 11" x 28" -- 1/4" 11" x 56" -- l/4"
"(6) Contracts for political advertising space must be
accompanied by check for entire amount of contract."
"(7) Posters and/or cards must be delivered, prepaid, 10 days
prior to posting date."
"(8) Equal opportunity to purchase space will be offered and
allotted for each opposing candidate, bond issue or referendum. If
necessary, contracts for political advertising will be held until
30 days prior to the contract posting date, at which time Metro
Transit Advertising will allocate the advertising space to each
candidate, issue or referendum."
"(9) Minimum order acceptable for either cards or poster is at
the one-[month rate]."
"(10)
Political advertising will not be accepted on
following systems: Shaker Rapid -- Maple Heights -- North Olmsted
-- Euclid, Ohio."
(Emphasis added.)
[
Footnote 3/3]
See generally Kalven, The Concept of the Public Forum:
Cox v. Louisiana, 1965 Sup.Ct.Rev. 1; Gorlick, Right to a
Forum, 71 Dick.L.Rev. 273 (1967); Horning, The First Amendment
Right to a Public Forum, 1969 Duke L.J. 931.
[
Footnote 3/4]
Public forum status has also been extended to municipal bus
terminals,
see Wolin v. Port of New York Authority, 392
F.2d 83 (CA2 1968), and railroad stations,
see In re
Hoffman, 67 Cal. 2d
845, 434 P.2d 353 (1967).
[
Footnote 3/5]
My Brother DOUGLAS' analogy to billboard and newspaper
advertising,
ante at
418 U. S.
306-307, is not apropos in the circumstances of this
case, where the advertising display space is city owned and
operated.
[
Footnote 3/6]
There is some doubt concerning whether the "commercial speech"
distinction announced in
Valentine v. Chrestensen,
316 U. S. 52
(1942), retains continuing validity. MR. JUSTICE DOUGLAS has
remarked: "The ruling was casual, almost offhand. And it has not
survived reflection."
Cammarano v. United States,
358 U. S. 498,
358 U. S. 514
(1959) (concurring opinion).
See also Pittsburgh Press Co. v.
Pittsburgh Comm'n on Human Relations, 413 U.
S. 376,
413 U. S. 393
(1973) (BURGER, C.J., dissenting);
id. at
413 U. S. 398
(DOUGLAS, J., dissenting);
id. at
413 U. S. 401
(STEWART, J., dissenting). That question, however, need not be
decided in this case. It is sufficient for the purpose of public
forum analysis merely to recognize that commercial speech enjoys at
least some degree of protection under the First Amendment, without
reaching the more difficult question concerning the amount of
protection afforded.
[
Footnote 3/7]
Other courts have reached the same conclusion on nearly
identical facts.
See Kissinger v. New York City Transit
Authority, 274 F.
Supp. 438 (SDNY 1967);
Hillside Community Church v. City of
Tacoma, 76 Wash. 2d
63,
455 P.2d
350 (1969);
Wirta v. Alameda-Contra Costa Transit
District, 68 Cal. 2d 51,
434 P.2d 982 (1967).
[
Footnote 3/8]
The plurality opinion's reliance upon
Packer Corp. v.
Utah, 285 U. S. 105
(1932), is misplaced. As MR. JUSTICE DOUGLAS noted in
Cammarano
v. United States, supra, at
358 U. S. 513
n. (concurring opinion):
"In
Packer Corp. v. Utah, 285 U. S.
105, the First Amendment problem was not raised. The
extent to which such advertising could be regulated consistently
with the First Amendment (
cf. Cantwell v. Connecticut,
310 U. S.
296;
Martin v. Struthers, 319 U. S.
141;
Breard v. Alexandria, 341 U. S.
622;
Roth v. United States, 354 U. S.
476) has therefore never been authoritatively
determined."
See also 418
U.S. 298fn3/6|>n. 6,
supra.
[
Footnote 3/9]
The existence of other public forums for the dissemination of
political messages is, of course, irrelevant. As the Court said in
Schneider v. State, 308 U. S. 147,
308 U. S. 163
(1939),
"one is not to have the exercise of his liberty of expression in
appropriate places abridged on the plea that it may be exercised in
some other place."
[
Footnote 3/10]
In declaring unconstitutional an advertising policy remarkably
similar to the city's policy in the present case, the California
Supreme Court detailed "the paradoxical scope of the [transit]
district's policy [banning political advertising]" in the following
manner:
"A cigarette company is permitted to advertise the desirability
of smoking its brand, but a cancer society is not entitled to
caution by advertisement that cigarette smoking is injurious to
health. A theater may advertise a motion picture that portrays sex
and violence, but the Legion for Decency has no right to post a
message calling for clean films. A lumber company may advertise its
wood products, but a conservation group cannot implore citizens to
write to the President or Governor about protecting our natural
resources. An oil refinery may advertise its products, but a
citizens' organization cannot demand enforcement of existing air
pollution statutes. An insurance company may announce its available
policies, but a senior citizens' club cannot plead for legislation
to improve our social security program. The district would accept
an advertisement from a television station that is commercially
inspired, but would refuse a paid nonsolicitation message from a
strictly educational television station. Advertisements for travel,
foods, clothing, toiletries, automobiles, legal drugs -- all these
are acceptable, but the American Legion would not have the right to
place a paid advertisement reading, 'support Our Boys in Viet Nam.
Send Holiday Packages.'"
Wirta v. Alameda-Contra Costa Transit
District, 68 Cal. 2d 51,
57-58, 434 P.2d 982, 986-987 (1967).
[
Footnote 3/11]
For example, the record indicates that church
advertising was accepted for display on the Shaker Heights
Rapid Transit System.
See App. 26A.
[
Footnote 3/12]
My Brother DOUGLAS' contrary view, that
"the right of the commuters to be free from forced intrusions on
their privacy precludes the city from transforming its vehicles of
public transportation into forums for the dissemination of ideas
upon this captive audience,"
irrespective of whether the speech in question is commercial or
noncommercial,
ante at
418 U. S. 307,
does not dispose of the First and Fourteenth Amendment issues in
this case. The record reveals that the Shaker Heights Rapid Transit
System provides advertising space on the
outside, as well
as the inside, of its cars.
See App. 24A. Lehman was
denied access to both. Whatever applicability a "captive audience"
theory may have to interior advertising, it simply cannot justify
the city's refusal to rent Lehman
exterior advertising
space.
[
Footnote 3/13]
Metro's current copy policy provides for such disclaimers in
those city transit systems that accept political advertisements.
See n 2,
supra at � (5)