Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)

Facts

  • The City of Shaker Heights operated a municipal rapid transit system and sold interior “car card” advertising space on its vehicles.
  • The city accepted commercial and public service advertising but followed a longstanding policy against political advertising on transit vehicles.
  • Harry J. Lehman, a candidate for the Ohio General Assembly, sought to purchase car-card space for an advertisement supporting his candidacy.
  • The city’s advertising contractor refused Lehman’s advertisement pursuant to the no-political-ads policy, despite available space.
  • Lehman challenged the refusal as violating the First and Fourteenth Amendments.

Issues

  1. Whether a city that sells advertising space on its public transit vehicles must, under the First and Fourteenth Amendments, accept paid political advertising for candidates.
  2. Whether excluding political advertising while permitting commercial and public service advertising constitutes unconstitutional content discrimination or denial of equal protection.

Decision

  • The Supreme Court affirmed the judgment for the city by a 5–4 vote.
  • A plurality concluded the transit car-card space was not a First Amendment public forum and the city could make reasonable, evenhanded advertising choices.
  • The plurality upheld the political-ad ban as a permissible managerial policy, justified by avoiding controversy, favoritism concerns, and burdens on a captive ridership, so long as the policy was not arbitrary, capricious, or invidious.
  • A concurring Justice agreed primarily on the ground that riders are a captive audience and a candidate has no right to force political messages on them in that setting.
  • The dissent would have treated the ad space as a forum once opened for advertising and would have barred subject-matter discrimination against political speech.
  • The level of First Amendment protection depends on the nature of the government-controlled property and whether it has been opened as a public forum for expressive activity.
  • A government entity acting in a proprietary, managerial capacity may limit access to advertising space on public transit vehicles when the space is not a public forum.
  • In a nonpublic forum, content-based limits may be permissible if they are reasonable in light of the forum’s purposes and are not arbitrary, capricious, or invidious.
  • Protection of a captive audience and avoidance of controversy, abuse, and apparent favoritism may constitute reasonable grounds for limiting political advertising on transit vehicles.

Conclusion

The Court held that a city’s transit car-card advertising space was not a public forum and that the city could exclude candidate political advertising while permitting commercial and public service ads, because the restriction was a reasonable managerial choice aimed at the transit system’s operation and rider experience and was not shown to be arbitrary or invidious.