418 U.S.

298
94 S.Ct. 2714
41 L.Ed.2d 770

Harry J. LEHMAN, Petitioner,

v.
CITY OF SHAKER HEIGHTS et al.
No. 73328.
Argued Feb. 2627, 1974.
Decided June 25, 1974.

Syllabus
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. 302308.
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 advertisingthus minimizing chances of
abuse, appearances of political favoritism, and the risk of imposing upon a
captive audienceis within the city's discretion and involves no First or
Fourteenth Amendment violation. Pp. 302304.
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. 305308.
Leonard J. Schwartz, Columbus, Ohio, for petitioner.

Paul R. Donaldson, Cleveland, Ohio, for respondents.

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:

3
'HARRY
J. LEHMAN IS OLDFASHIONED! ABOUT HONESTY, INTEGRITY
AND GOOD GOVERNMENT
4

'State RepresentativeDistrict 56 ( ) 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, upon or about any other additional and further space
granted hereunder.'1

When petitioner applied for space,2 he was informed by Metromedia that,

although space was then available, the management agreement with the city did
not permit political advertising.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.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, had not accepted or permitted any political or public issue

advertising on its vehicles. App. 30A32A.

8

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, 145146,
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's 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.5 414
U.S. 1021, 94 S.Ct. 443, 38 L.Ed.2d 312 (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.

10

We disagree. In Packer Corp. v. Utah, 285 U.S. 105, 110, 52 S.Ct. 273, 274, 76
L.Ed. 643 (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 107, 52 S.Ct. at 273. 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
110, 52 S.Ct., at 274275. '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, 468, 72 S.Ct. 813, 823, 96 L.Ed. 1068 (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 110,

52 S.Ct. at 275. Cf. Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed.
1233 (1951).
11

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 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, 61
S.Ct. 762, 85 L.Ed. 1049 (1941); Breard v. Alexandria, supra; Poulos v. New
Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105 (1953); Cox v.
Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Adderley v.
Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966); Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969);
Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33
L.Ed.2d 212 (1972); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294,
33 L.Ed.2d 222 (1972); Columbia Broadcasting System, Inc. v. Democratic
National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973);
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376,
93 S.Ct. 2553, 37 L.Ed.2d 669 (1973).

12

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 464465, 72 S.Ct. at 821.

13

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 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 465, 72 S.Ct. at 822. Revenue
earned from long-term commercial advertising could be jeopardardized 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.
14

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.

15

The judgment of the Supreme Court of Ohio is affirmed.

16

It is so ordered.

17

Affirmed.

18

Mr. Justice DOUGLAS, concurring.

19

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.

20

The petitioner contends that, by selling advertising space, the city has turned its
buses into free speech forums and the city is now prohibited by the First
Amendment, applicable to the States through the Fourteenth,1 from refusing
space for political advertisements.

21

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, 515516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939). 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.

22

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 motorists2 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.

23

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, than, as we hold this date, Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, 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 who because of necessity become commuters and at the same time
captive viewers or listeners.

24

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.

25

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, 72 S.Ct. 813,
824, 96 L.Ed. 1068, 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.

26

I agree with Mr. Justice Brandeis who, quoting from a Utah State Court
decision,3 said that the visual message in streetcars is no different, for "
(a)dvertisements of this sort are constantly before the eyes of observers 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, 52 S.Ct. 273, 274, 76 L.Ed. 643.

27

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.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART, Mr. Justice

28

Mr. Justice BRENNAN, with whom Mr. Justice STEWART, Mr. Justice
MARSHALL, and Mr. Justice POWELL join, dissenting.

29

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.'

30

Prior to Ohio's 1970 general election, Harry J. Lehman, a candidate for the
office of State Representative to the 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 advertisement1 met
Metromedia's copy standards,2 rental space was nevertheless denied Lehman on
the sole ground that Metromedia's contract with the city forbids acceptance of
'political advertising.'

31

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.

32

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.

33

* 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 in matters of governing

importance. New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,
720, 11 L.Ed.2d 686 (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, 7475, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (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, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (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, 376 U.S., at 271, 84 S.Ct. at 721.
34

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, 85 S.Ct. 453,
464, 13 L.Ed.2d 471 (1965):

35

'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.'

36

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, 92
S.Ct. 2286, 2291, 33 L.Ed.2d 212 (1972); Grayned v. City of Rockford, 408
U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972); Cox v. Louisiana,
supra, 379 U.S., at 554555, 85 S.Ct. at 464465; Poulos v. New Hampshire,
345 U.S. 395, 398, 73 S.Ct. 760, 762, 97 L.Ed. 1105 (1953); Cox v. New
Hampshire, 312 U.S. 569, 575576, 61 S.Ct. 762, 765766, 85 L.Ed. 1049
(1941); Schneider v. State of N.J., 308 U.S. 147, 160, 60 S.Ct. 146, 150, 84
L.Ed. 155 (1939).

37

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 pub.'
Adderley v. Florida, 385 U.S. 39, 54, 87 S.Ct. 242, 250, 17 L.Ed.2d 149 (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. 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.
38

Applying these principles, the Court has long recognized the public's right of
access to public streets and parks for expressive activity. As Mr. Justice
Roberts wrote in Hague v. CIO, 307 U.S. 496, 515516, 59 S.Ct. 954, 964, 83
L.Ed. 1423 (1939):

39

'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.'

40

See also Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869 (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, 83 S.Ct. 680, 9 L.Ed.2d 697 (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, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).4

41

In the circumstances of this case, however, we need not decide whether public

transit cars must be made 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.5
42

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, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), with Schneider v. State of N.J.,
308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939), and Breard v. City of
Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1951), with Martin v.
City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943), it is
'speech' nonetheless, often communicating information and ideas found by
many persons to be controversial.6 There can be no question 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.7

II
43

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. 8 See, e.g., Police Department of Chicago v. Mosley,
408 U.S., at 9596, 92 S.Ct., at 22892290; Cox v. Louisiana, 379 U.S. 559,
581, 85 S.Ct. 476, 470, 13 L.Ed.2d 487 (1965) (Black, J., concurring and
dissenting); Fowler v. Rhode Island, 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828
(1953); Niemotko v. Maryland, 340 U.S. 268, 272273, 71 S.Ct. 325, 327
328, 95 L.Ed. 267, 280 (1951).

44

'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, 408 U.S., at
96, 92 S.Ct., at 2290 (footnote omitted).

45

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.9

46

To insure that subject matter or content is not the sole basis for discrimination
among forum users, all 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, 408 U.S., at 98102, 92
S.Ct. at 22912294; Grayned v. City of Rockford, 408 U.S., at 115 117, 92
S.Ct. at 23022304; Shuttlesworth v. Birmingham, 394 U.S. 147, 152153,
89 S.Ct. 935, 939940, 22 L.Ed.2d 162 (1969); Tinker v. Des Moines School
District, 393 U.S. 503, 508, 514, 89 S.Ct. 733, 737, 740, 21 L.Ed.2d 731
(1969); cf. Dunn v. Blumstein, 405 U.S. 330, 336337, 92 S.Ct. 995, 999
1000, 31 L.Ed.2d 274 (1972); Williams v. Rhodes, 393 U.S. 23, 31, 89 S.Ct. 5,
10, 21 L.Ed.2d 24 (1968). The city has failed to discharge that heavy burden in
the present case.

47

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 counteradvertisement 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,10 make perfectly clear
that the selective exclusion of political advertising is not the product of
evenhanded application of neutral 'time, place, and manner' regulations. Rather,
the operativeand constitutionally impermissibledistinction is the message
on the sign. That conclusion is not dispelled by any of the city's asserted
justifications for selectively excluding political advertising.
48

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
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. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 806, 93
L.Ed. 1131 (1949).

49

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 messages11 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 on the basis of subject matter, in violation of the First
and Fourteenth Amendment.

50

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.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, 469,
72 S.Ct. 813, 824, 96 L.Ed. 1068 (1952) (DOUGLAS, J., dissenting); cf.
Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949); Saia v. New
York, 334 U.S. 558, 562, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 (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, 91 S.Ct. 1780, 1786, 29
L.Ed.2d 284 (1971). Surely that minor inconvenience is a small price to pay for
the continued preservation of so precious a liberty as free speech.

51

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. AlamedaContra Costa Transit District, 68 Cal.2d 51, 61, 64 Cal.Rptr. 430, 437, 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,
89 S.Ct., at 12.

52

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 every advertisement.13 And while
problems of accommodating all potential advertisers may be vexing at times,
the appearance of favoritism can be avoided by the evenhanded regulation of
time, place, and manner for all advertising, irrespective of subject matter.
53

I would, therefore, reverse the judgment of the Supreme Court of Ohio and
remand this case for further proceedings not inconsistent with this opinion.

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
RapidMaple HeightsNorth OlmstedEuclid, Ohio.' Shaker Heights'
Exhibit A.

Mr. Lehman testified: 'We are using various methods (of pro-promoting my
candidacy), including newspaper advertising . . .. We plan to use direct mail
advertising, postcards, and circulars of various types.' App. 14A.

The system operated only 55 cars, App. 15A, each with 20 advertising spaces.
Tr. of Oral Arg. 2324.

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.

Cf. Wirta v. Alameda-Contra Costa Transit District, 68 Cal.2d 51, 64 Cal.Rptr.

430, 434 P.2d 982 (1967); Kissinger v. New York City Transit Authority, 274
F.Supp. 438 (S.D.N.Y.1967); Hillside Community Church v. City of Tacoma,

76 Wash.2d 63, 455 P.2d 350 (1969).

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, 62 S.Ct. 190,
194, 86 L.Ed. 192; Saia v. New York, 334 U.S. 558, 560, 68 S.Ct. 1148, 1149,
92 L.Ed. 1574; Elfbrandt v. Russell, 384 U.S. 11, 18, 86 S.Ct. 1238, 1241, 16
L.Ed.2d 321; Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16
L.Ed.2d 484.

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., 4344 (1967).

77 Utah 500, 515, 297 P. 1013, 1019 (1931).

The text of the proposed advertisement read as follows:

'Harry J. Lehman Is Old Fashioned!/About Honesty, Integrity And Good
Government/State RepresentativeDistrict 56.'

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 are 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 displays1/2"
21" x 72" Taillight spectacular1"
"Interior: 11" x 28"- 1/4" 11" x 56"-1/4"
'(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 posters is at the one-(month
rate).
'(10) Political advertising will not be accepted on following systems: Shaker
RapidMaple HeightsNorth OlmstedEuclid, Ohio.' (Emphasis added.)
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.

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, 64 Cal.Rptr. 97, 434 P.2d 353
(1967).

My Brother DOUGLAS' analogy to billboard and newspaper advertising, ante,

at 306308, is not apropos in the circumstances of this case where the
advertising display space is city owned and operated.

There is some doubt concerning whether the 'commercial speech' distinction

announced in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed.
1262 (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, 79 S.Ct. 524, 534, 3 L.Ed.2d
462 (1959) (concurring opinion). See also Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U.S. 376, 393, 93 S.Ct. 2553, 2562, 37
L.Ed.2d 669 (1973) (Burger, C.J., dissenting); id., at 401, 93 S.Ct. at 2565
(Douglas, J., dissenting); id., at 401, 93 S.Ct. at 2566 (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
(S.D.N.Y.1967); Hillside Community Church, Inc. v. City of Tacoma, 76
Wash.2d 63, 455 P.2d 350 (1969); Wirta v. Alameda-Contra Costa Transit
District, 68 Cal.2d 51, 64 Cal.Rptr. 430, 434 P.2d 982 (1967).

The plurality opinion's reliance upon Packer Corp. v. Utah, 285 U.S. 105, 52
S.Ct. 273, 76 L.Ed. 643 (1932), is misplaced. As Mr. Justice Douglas noted in
Cammarano v. United States, supra, 358 U.S., at 513 n., 79 S.Ct., at 533 n.
(concurring opinion): 'In Packer Corp. v. Utah, 285 U.S. 105, (52 S.Ct. 273, 76
L.Ed. 643), 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 (60 S.Ct. 900, 84 L.Ed. 1213); Martin v.
Struthers, 319 U.S. 141 (63 S.Ct. 862, 87 L.Ed. 1313); Breard v. Alexandria,
341 U.S. 622 (71 S.Ct. 920, 95 L.Ed. 1233); Roth v. United States, 354 U.S.
476 (77 S.Ct. 1304, 1 L.Ed.2d 1498) has therefore never been authoritatively
determined.' See also n. 6, supra.

The existence of other public forums for the dissemination of political messages
is, of course, irrelevant. As the Court said in Schneider v. State of N.J., 308
U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155 (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
drugsall 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, 5758, 64 Cal.Rptr. 430, 434435, 434 P.2d 982, 986987
(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).