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Lehman v. City of Shaker Heights

    Brief Fact Summary. The Petitioner, Lehman (Petitioner), a candidate for the office of state representative, 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.

    Synopsis of Rule of Law. In much the same way that a newspaper, periodical, 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. However, where state action exists, the policies and practices governing access to the transit system’s advertising space must not be arbitrary, capricious or invidious.

    Facts. The Petitioner was informed that, although the space was available, the city did not permit political advertising. 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 related groups. When the 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.

    Issue. Whether a city which operates a public rapid transit system and sells commercial and public service advertising space for car cards on its vehicles is required by the First and Fourteenth Amendments of the United States Constitution (Constitution) to accept paid political advertising on behalf of a candidate for public office?

    Held. Under the 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.

    Dissent. Once a public forum for communication has been established, both free speech and equal protection principles prohibit discrimination based solely upon the subject matter or content. Furthermore, where the city has opened its transit system as a forum for communication, then occasional appearance of provocative speech should be expected.
    Concurrence. While the Petitioner has a right to express his views to those who wish to hear it, he has no right to force his message upon an audience incapable of declining to receive it.

    Discussion. The majority decision focuses on the potential problems that may arise if the city were forced to accept political advertisements. The court noted that users would be forced to accept political propaganda against their will. Furthermore, the court stated that there could be doubts about favoritism involved in parceling out of limited space. The managerial decision to minimize the opportunity for abuse, favoritism, and imposition upon a captive audience is a reasonable legislative objective advanced by the city in a proprietary capacity.


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