The City of Charlottesville has been catching some flak recently (see this article in The Hook) over the fact that it has a policy of not allowing advertisements for non-profits or political campaigns on the sides of its City buses. The specific question is over putting ads on the sides of buses talking about the Help the Next Girl campaign undertaken by the family of Morgan Harrington, a Virginia Tech student who disappeared from a rock concert in Charlottesville two years ago; her body was found 3 months later. The HelpSaveTheNextGirl.com campaign has developed a multimedia campaign aimed at bringing awareness to the vulnerability of young women and empowering them to make the best choices for their own safety — and the safety of their friends.
A Charlottesville woman, Charlotte Ding, wanted to buy ad space on the side of City buses, and was told, “Charlottesville Transit only sells ad space to for-profit enterprises” — no non-profit, political or “message” ads.
Can the City do that? Isn’t that a violation of the First Amendment, to say that we will accept ads from profit-making groups, but not from non-profits? In a word, “No.”
There are two First Amendment principles at work here.
First, a government cannot discriminate against speech that it doesn’t like based solely on the content of that speech. To put it simply, the City is not free to say that they will accept ads from Democrats but not from Republicans.
Second, not every place where a message might appear is a “public forum” for the purposes of First Amendment analysis. If a government facility is a “public forum,” the government has virtually no ability to regulate content. “Public forums” include the streets (where people have traditionally gathered for political expression) and public arenas (created to allow the presentation of plays, political conventions, and other forms of speech). In a public forum, government can regulate the time, place and manner of speech as long as it does so in a content-neutral manner. So government can say, “have all the political speech you want on the sidewalks, but not after 10 PM and not by blocking traffic and not with a bullhorn.”
But if the government facility is NOT deemed to be a “public forum,” meaning that it is NOT a place traditionally used for speech, government has more power to regulate the manner of speech (but still not its content). Examples of nonpublic forums are street-light posts, prisons, military bases, polling places, a school district’s internal mail system and airport terminals. Government can pass a law that says, “No political activity inside a polling place,” but it still could not say, “You can wear an Obama T-shirt when you come to vote, but not a Romney T-shirt.”
But Court grants government much greater latitude in regulating nonpublic forums. In addition to applying time, place and manner regulations, the City can reserve the forum for its intended purposes, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.
In Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), Harry Lehman was running for the Ohio House of Representatives in the 56th District, which included the city of Shaker Heights. Lehman wanted to put his campaign ads on the side of Shaker Heights’ streetcars. Metromedia, Inc. was designated by the city to manage that advertising space. Metromedia’s contract with the city prohibited it from placing political ads on the streetcars. It was allowed, however, to place advertisements from businesses and public service groups. Lehman’s request to put his ads on the streetcars was denied, and he sued. Eventually, the U.S. Supreme Court upheld Shaker Heights’ policy.
In a 5-4 decision, the U.S. Supreme Court found no violation of the First or Fourteenth Amendments. Writing for a plurality of four justices, Justice Harry A. Blackmun asserted that “no First Amendment forum is here to be found,” as the streetcars did not qualify as a “public thoroughfare.” Accordingly, the city “need not accept every proffer of advertising.” The city could reject certain types of advertising as long as the policies were not “arbitrary, capricious, or invidious.” Given the “reasonable legislative objectives” of minimizing “chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience,” Shaker Heights’ policy was not unconstitutional. Justice Douglas made the fifth vote — his reasoning emphasized more the “captive audience” rationale, somewhat forgetting that that rationale might apply to banning ads placed inside a bus, but has little relevance to ads placed on the outside of a bus.
The consequence of Lehman v. City of Shaker Heights is that the City is free to adopt a policy that says “no non-profit ads.” Whether the City is correct in its determination that this policy is wise is an entirely different decision — Lehman just says that the City is free to make that determination.
