Washington Law Review


In 1970, Harry Lehman, a candidate for election to the Ohio state legislature, attempted to purchase advertising space on local buses belonging to the city of Shaker Heights' rapid transit system. Although space was available, the advertising agent for the transit company rejected Lehman's request because its contract with the city proscribed political advertising on buses. Lehman sought a declaratory judgment and an injunction, alleging violation of the first and fourteenth amendments. The trial court denied relief, and the state supreme court affirmed. In a 5-4 decision, the United States Supreme Court affirmed. In the plurality opinion, Justice Blackmun concluded that no first amendment public forum existed and that no equal protection violation had occurred. Concurring in the result, Justice Douglas argued that there was no constitutional right to spread a message before a captive audience on a public bus. Justice Brennan, speaking for the dissent, maintained that the city itself had created a public forum by accepting and displaying commercial advertising. Having opened such a forum, the city could not discriminate solely upon the subject matter of the message. To do so, he contended, violated both the first and fourteenth amendments.

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