cities are generating revenue from private advertising on public
property. Among other places, for example, municipalities have leased
advertising space on buses (Children of the Rosary v. City of Phoenix,
154 F.3d 972 (9th Cir. 1998), cert. denied 526 U.S. 1131 (1999)), bus
shelters, (Metro Display Advertising v. City of Victorville, 143 F.3d
1191 (9th Cir. 1998)), parking meters and trash cans (Rappa v. New
Castle County, 813 F.Supp.1074 (D.Del. 1992), aff'd in part and
vacated in part 18 F.3d 1043 (3rd Cir. 1994).)
This article explains the constitutional
parameters that circumscribe municipal authority to use public
property as a venue for private advertisements.
It first describes the cornerstone of this area
of First Amendment law, Lehman v. City of Shaker Heights (418 U.S. 298
(1974).) In Lehman, the United States Supreme Court established that
private advertising programs may be conducted with content-based
distinctions, a holding that effectively overruled a contrary prior
decision by the California Supreme Court.
The article then examines how lower courts have
applied the Lehman principle in different contexts. Finally, it sets
forth four strategies that cities should follow to profit from private
advertisements on public property.
The Lehman principle
The Lehman case arose when Harry J. Lehman, a
1970 candidate for the Ohio General Assembly, unsuccessfully attempted
to purchase "car card" space in the rapid transit system operated
by the City of Shaker Heights.
Lehman's proposed ad copy contained his picture
and professed his belief in honesty, integrity and good government.
Metromedia Inc., which managed advertising on the transit system
pursuant to a contract with Shaker Heights, rejected Lehman's
submission despite the availability of space. The exclusion rested
entirely on the management agreement's prohibition on political
advertising, a ban that had been consistently enforced for 26 years.
In a 5-4 decision, the United States Supreme
Court held that neither Shaker Heights' policy against political
advertising in car cards, nor the refusal to accept Lehman's
campaign copy, violated the First Amendment.
The plurality opinion deemed the car cards to be
a part of the city's public transportation commercial venture. The
plurality stressed that the political advertising restriction served
to minimize chances of abuse, the appearance of favoritism and the
risk of imposing upon a captive audience.
These considerations, the plurality concluded,
justified the "managerial decision to limit car card space to
innocuous and less controversial commercial and service oriented
advertising." (Id. at 304.)
The Lehman case effectively overruled a contrary
decision made seven years prior by the California Supreme Court in
Wirta v. Alameda-Contra Costa Transit Dist. (68 C.2d 51 (1967).) The
question raised in Wirta was whether a transit district
constitutionally could limit the paid advertising on its motor coaches
to commercial solicitations and to issues and candidates on the ballot
at the time of an election.
By a 4-3 vote, the Wirta court ruled that such a
restriction amounted to a "most pervasive form of censorship" in
violation of the First Amendment rights of persons seeking to display
an anti-Vietnam War advertisement (Id. at 56). Although Lehman does
not expressly disapprove of Wirta, it seems undeniable that the high
court intended to invalidate the California Supreme Court's
Private messages in public bottles
The contradictory outcomes of Lehman and Wirta
stem from fundamentally distinct attitudes as to the nature of private
advertising space on public property. For the Wirta court, such space
comprised a "forum for the expression of ideas." (Id. at 55.) By
contrast, in the opinion of the Lehman plurality, "[n]o First
Amendment forum is here to be found" (Lehman, supra note 4 at 304).
Ironically, decades later, this conceptual
dichotomy continues to be determinative as lower courts have applied
the Lehman principle in different contexts.
First Amendment jurisprudence presently
classifies public property according to three categories of public
forum status. This taxonomy, as delineated in the landmark case of
Perry Ed. Assn. v. Perry Local Ed. Assn., (460 U.S. 37 (1983))
consists of: (1) traditional public forums - areas such as streets
and parks that traditionally have been used for expressive activity;
(2) designated public forums - areas dedicated by the government for
expressive activity, either generally or for limited purposes; and (3)
Litigation over private advertising programs on
public property tends to focus on the line between designated public
forum and nonpublic forum, probably because streets and parks are
rarely leased to advertisers. A recent state court example is
DiLor-eto v. Board of Education. (DiLoreto v. Board of Education, 74
Cal.App.4th 267 (1999), rev. denied, Cal. Supreme Court Minute
In this case, the California Court of Appeal
sustained the Downey Unified School District's refusal to post, on a
high school baseball field fence, a Ten Commandments advertisement
submitted by local businessman Edward DiLoreto. The court largely
justified its ruling on its conclusion that the fence constituted a
Perhaps surprisingly, of all the federal courts
of appeals, the Ninth Circuit has deferred most to government entities
by assigning the nonpublic forum classification to their private
advertising spaces and acceding to their managerial decisions.
This deference is reflected in the court's
dismissal of Edward DiLoreto's First Amendment challenge to the
Downey Unified School District's rejection of his Ten Commandments
advertisement. (DiLoreto v. Downey Unified School Dist. Bd. Educ., 196
F.3d 958 (9th Cir. 1999), cert. denied 529 U.S. 1067 (2000).)
It is also demonstrated by decisions allowing the
City of Phoenix to exclude noncommercial advertisements from bus
panels (Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th
Cir. 1998), cert. denied 526 U.S. 1131 (1999)), and permitting
Nevada's Clark County School District to bar family planning service
advertisements from student newspapers, yearbooks and athletic
programs (Planned Parenthood v. Clark County School Dist., 941 F.2d
817 (9th Cir. 1991)).
Other federal jurisdictions have not compiled a
comparable record. In 1995, for example, the Second Circuit
characterized a Pennsylvania Station billboard as a nonpublic forum
and sustained Amtrak's refusal to exhibit a political advertisement
there. (Lebron v. National R.R. Passenger Corp. (AMTRAK), 69 F.3d 650
(2nd Cir. 1995), amended by 74 F.3d 371 (2nd Cir. 1995), cert. denied
517 U.S. 1188 (1996).)
Three years later, however, the court ruled that
New York's Metropolitan Transportation Authority (MTA) had created a
designated public forum in its bus panels such that it was obligated
to display a political advertisement critical of New York City Mayor
Rudolph Giuliani. (New York Magazine v. Metropolitan Transp. Auth.,
136 F.3d 123 (2nd Cir. 1998), cert. denied 525 U.S. 824 (1998).)
What accounts for these disparate applications of
the Lehman principle? The answer is the manner in which the government
entity had conducted its private advertising program. Phoenix, the
Downey Unified School District and Amtrak consistently limited their
advertising spaces to commercial promotions.
The Clark County School District continuously
restricted its advertising spaces to subjects and entities considered
to be in the best interests of its schools, and required advertisers
to obtain approval from the principal having jurisdiction. By
contrast, the MTA accepted a broad range of commercial and
noncommercial messages in its advertising space.
Any government entity that leases advertising
space on its public property should expect to be presented with an
advertisement that it will not wish to display due to aesthetics,
politics or some other reason.
As explained above, however, excluding an
undesirable advertisement may violate the First Amendment rights of
the prospective advertiser and result in civil rights liability. This
dilemma can be resolved by implementing a private advertising program
in accordance with the following four strategies.
First, the advertising space should formally be
declared to be a nonpublic forum. Although unlikely to be dispositive
of public forum status (Cf. Hopper v. City of Pasco, 241 F.3d 1067,
1075 (9th Cir. 2001)), the mere existence of the declaration probably
will tilt the scales (at least initially) against a designated public
Second, an eligibility policy should be
established to restrict the types of advertisements that may be
exhibited through the program. Allowing only commercial advertisements
indicates that making money is the main goal. By contrast, allowing
both noncommercial and commercial advertisements suggests a general
intent to open the space for public discourse (New York Magazine,
supra note 16 at 130).
Third, the eligibility policy for the program
should be consistently enforced. If an eligibility policy is not
enforced, or if exceptions are haphazardly permitted, then the policy
will not have the desired effect of persuading a court that the
advertising space is intended to be a nonpublic forum.
Fourth, and most importantly, an advertisement
should never be excluded from the program because of the viewpoint
that it advocates. Although government entities enjoy considerable
latitude as to the regulation of private speech in a nonpublic forum,
even in that context a restriction must be viewpoint neutral.
The requirement of viewpoint neutrality is so
paramount that the Ninth Circuit denied a qualified immunity claim by
City of Victorville officials who were sued for civil damages for
allegedly demanding removal of pro-union advertisements from bus
shelters (Metro Display, supra note 2).
Whether or not to lease advertising space on
public property is a policy question as to which cities of course
enjoy absolute discretion. Should a jurisdiction choose to conduct a
private advertising program, the legal question that most likely will
arise first is how can the city retain maximum control over the
advertisements that are displayed on public property?
The answer, corroborated by a large body of case
law, is simple: promulgation and consistent enforcement of a policy
that identifies the advertising space as a nonpublic forum and
prescribes objective eligibility criteria for participation in the
program. Through such action, a city can ensure the profitability of
its private advertising program by minimizing the civil rights
liability exposure presented by its managerial decisions.
R. Boga is an associate in the Los Angeles office of Richards, Watson
& Gershon. He serves as assistant city attorney for the cities of
Seal Beach and Westlake Village and specializes in municipal and First