|Lehman v. City of Shaker Heights
[ Blackmun ]
[ Douglas ]
[ Brennan ]
Lehman v. City of Shaker Heights
CERTIORARI TO THE SUPREME COURT OF OHIO
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, [n1] 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 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, 515-516. [p306] 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 [n2] 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. 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 [p307] 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, 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, [n3] said that the visual message in streetcars is no different, for
"[a]dvertisements of this sort are constantly before the eyes of observers [p308] 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, 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.
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, 263 n. 6; Saia v. New York, 334 U.S. 558, 560; Elfbrandt v. Russell, 384 U.S. 11, 18; Mills v. Alabama, 384 U.S. 214, 218.
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).
3. 77 Utah 500, 515, 297 P. 1013, 1019 (1931).