|Lehman v. City of Shaker Heights
[ Blackmun ]
[ Douglas ]
[ Brennan ]
Lehman v. City of Shaker Heights
CERTIORARI TO THE SUPREME COURT OF OHIO
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 [p309] 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 [n1] met Metromedia's copy standards, [n2] rental space was nevertheless denied Lehman on [p310] 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.
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 [p311] in matters of governing importance. New York Times Co. v. Sullivan, 376 U.S. 254, 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, 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, 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 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, 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, 98 (1972); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cox v. Louisiana, supra, at 554-555; Poulos v. New Hampshire, 345 U.S. 395, 398 (1953); Cox v. New Hampshire, 312 U.S. 569, 575-576 (1941); Schneider v. State, 308 U.S. 147, 160 (1939). [p312]
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, 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. [n3] 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 [p313] parks for expressive activity. As Mr. Justice Roberts wrote in Hague v. CIO, 307 U.S. 496, 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). [n4]
In the circumstances of this case, however, we need not decide whether public transit cars must be made [p314] 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. [n5]
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 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. [n6] There can be no question [p315] 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. [n7]
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. [n8] See, e.g., Police Department of [p316] Chicago v. Mosley, 408 U.S. at 95-96; Cox v. Louisiana, 379 U.S. 559, 581 (1965) (Black, J., concurring and dissenting); Fowler v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S. 268, 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 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. [n9]
To insure that subject matter or content is not the sole basis for discrimination among forum users, all [p317] 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 98-102; Grayned v. City of Rockford, 408 U.S. at 115-117; Shuttlesworth v. Birmingham, 394 U.S. 147, 152-153 (1969); Tinker v. Des Moines School District, 393 U.S. 503, 508, 514 (1969); cf. Dunn v. Blumstein, 405 U.S. 330, 336-337 (1972); Williams v. Rhodes, 393 U.S. 23, 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, [n10] make perfectly clear that the selective [p318] 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 [p319] 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, 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 [n11] 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 [p320] 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. [n12] 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, 469 (1952) (DOUGLAS, J., dissenting); cf. Kovacs v. Cooper, 336 U.S. 77 (1949); Saia v. New York, 334 U.S. 558, 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 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, 21 (1971). Surely that minor inconvenience [p321] 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 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 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 [p322] every advertisement. [n13] 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.
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.
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.
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.
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).
5. My Brother DOUGLAS' analogy to billboard and newspaper advertising, ante at 306-307, is not apropos in the circumstances of this case, where the advertising display space is city owned and operated.
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, 514 (1959) (concurring opinion). See also Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 393 (1973) (BURGER, C.J., dissenting); id. at 398 (DOUGLAS, J., dissenting); id. at 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.
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).
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 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 n. 6, supra.
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, 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.
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).
11. For example, the record indicates that church advertising was accepted for display on the Shaker Heights Rapid Transit System. See App. 26A.
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 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.
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)