Lehman v. City of Shaker Heights ( 1973 )

CobRigan, J.

We are confronted herein with important issues of constitutional dimension in which appellant urges that the Shaker Heights Rapid Transit System, owned and operated by the city of Shaker Heights, which accepts paid commercial advertising for display in its rapid transit vehicles, may not refuse to accept paid political advertising because such refusal is a violation of a citizen’s rights of free speech and equal protection under the First and Fourteenth Amendments to the United States Constitution and Section 11 of Article I of the Ohio Constitution.

The “freedom of speech and press” issue raised: by appellant may be succinctly stated: It is whether or not the acceptance of commercial advertisements and their display in publicly owned and operated rapid transit vehicles results in the creation of “forums,” such as newspapers, magazines, radio and television, wherein free expression of ideas is constitutionally mandated.

We hold that it does not. As pointed out in the brief of appellee city of Shaker Heights: “A long line of decisions has established the rule that commercial messages do not come within the orbit of First Amendment protection.” See Freedom of Expression in a Commercial Context, 78 Harvard L. Rev. 1119.

In other words, 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. Although the city has elected to lease space on its rapid transit vehicles for commercial advertisements, it does not follow that the city must accept political advertisements.

There is an obvious and fundamental difference between transit vehicles and communications media such as newspapers, magazines, radio and television, the primary purpose of each of which is to serve as a forum for the exchange and interplay of ideas. The city has not opened up its transit vehicles to any exchange or presentation of ideas, political or otherwise. The sale of space for commercial advertising in or upon the rapid transit vehicles does not create such a forum, nor does it confer First Amendment rights.

The constitutional language is simple. The First Amendment to the United States Constitution provides:

“Congress shall make no law * * * abridging the freedom of speech, or of the press * *

Section 11 of Article I of the Ohio Constitution reads:

“Every citizen may freely speak, write, and publish his sentiments on all subjects * * * and no law shall be passed to restrain or abridge the liberty of speech, or of the press. * * *”

The establishment of a commercial advertising program on these rapid transit vehicles was not intended to create a free speech forum or a free press, and we will not torture these concepts to pressure such a commercial advertising plan into First Amendment ambits. The proponents are confusing free speech forums with the marketplace. Purveyors of goods and services saleable in commerce may purchase advertising space on an equal basis, whether they be house builders or butchers. They are coursing in the stream of commerce. But the Rapid Transit System has determined¹ that political advertising is not acceptable as a matter of long-time policy because of the “chances for abuse, the possibility of discrimination or favoritism, and the risk of violating the passengers’ rights.” There is no distinction as to candidates. As a class, they are excluded from using the rapid transit vehicles for their political advertising.

It was pointed out by Justice Brandéis, in Packer Corp. v. Utah (1932), 285 U. S. 105, 110, that street car advertising is a special class of advertising. The Utah Supreme Court was quoted with approval in the opinion:

“ “* * * Advertisements 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. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisement in a position to be classified so that regulations or prohibitions may be imposed upon all within the class. * * * ’ ”

It is well stated in 16 American Jurisprudence 2d 905, Constitutional Law, Section 518, that:

“The general rule that legislation which affects alike all persons pursuing the same business under the same conditions is not such class legislation as is prohibited by constitutional provisions is subject to limitation to the extent that it does not permit discriminations by which persons engaged in the same business are subjected to different restrictions or are held entitled to different privileges under the same conditions. The power of the legislature to impose restrictions on a lawful calling must be exercised in conformity with the constitutional requirement that such restrictions must operate equally upon all persons pursuing the same business or profession under the same circumstances. * * *”

Particular individuals may not be selected from a class or locality and subjected to peculiar rules or have special obligations or burdens imposed upon them from which others in the same class or locality are exempt.

It is stated further in 16 American Jurisprudence 2d 906, Section 518:

í í * * * constitutional guaranty as to the equal protection of the laws * * * requires that no impediment should be interposed to the pursuits of anyone execept as applied to the same pursuits by others under similar circumstances, and that no greater burdens in engaging in a calling should be laid upon one than are laid upon others in the same calling and condition.”

As a class, all candidates for political office are treated alike under the Shaker Heights Rapid Transit System’s commercial advertising policy, and that is exactly the extent of their rights under the constitutions of Ohio and of the United States.

As indicated in Valentine v. Chrestensen (1942), 316 U. S. 52 (a case involving a commercial message on one side of a handbill and a political message on the other side), the control of commercial advertising is entirely within the scope of local government. It seems to follow logically that a local government may regulate the type of commercial advertising it accepts, and that it is within the authority of that local government to accept only commercial advertising, absent a specific holding to the contrary on this question by the Supreme Court of the United States.

Manifestly, there is no denial of equal protection of the laws, as claimed by plaintiff, because everybody in his class as a candidate for public office is treated identically, and his political advertising is not accepted because of policy. Shaker Heights sets plaintiff’s class apart from house builders, butchers and other business entrepreneurs who regularly patronize the commercial advertising market and who are the commercial customers of the Shaker Heights Rapid Transit System .advertising plan.

For the above reasons, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

HbebbRt, Celebrezze and P. Brown, JJ., concur. 0 ’Neill, C. J., Stern and W. Brown, J j., dissent.

1 Neither party has elucidated as to the meaning of the term “political” advertisement as used herein. I assume, therefore, that it is restricted to its usual meaning of expression of ideas “pertaining or relating to the policy or the administration of government, state or national.” Black’s Law Dictionary (4 Ed.). This, of course, would include promoting or urging the defeat of candidates for public office or of issues to be submitted to the electorate.