California Bar Journal
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California Bar Journal

The State Bar of California


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Front Page - August 2001
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This month’s article and test provided by the State Bar's
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A Word From Our  Sponsors

How municipalities can maintain maximum control over private advertising on public property  

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Terence R. BogaNationwide, 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 inconsistent ruling.

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) nonpublic forums.

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 12-01-1999.)

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 nonpublic forum.

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)).

Disparate applications

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.

Implementation strategies

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 forum classification.

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.

Terence 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 Amendment law.