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
- 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.
- 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.
Legal Principles
- 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.