Lehman v. City of Shaker Heights – Oral Argument – February 27, 1974

Media for Lehman v. City of Shaker Heights

Audio Transcription for Opinion Announcement – June 25, 1974 in Lehman v. City of Shaker Heights
Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Warren E. Burger:

We will resume arguments in No. 73-328, Lehman against Shaker Heights.

Mr. Schwartz, you have about 20 minutes remaining in all.

William H. Rehnquist:

Mr. Schwartz, may I ask you a question before you begin?

Leonard J. Schwartz:

Yes, sir.

William H. Rehnquist:

Your — your client, I take it isn’t running this year, is he?

Leonard J. Schwartz:

In 1974?

William H. Rehnquist:

Yes.

Leonard J. Schwartz:

Yes, sir, he is running?

William H. Rehnquist:

In — In the same district?

Leonard J. Schwartz:

Yes, sir.

William H. Rehnquist:

So he would probably have occasion again to ask the Shaker Heights bus people to get you — put his posters on the bus?

Leonard J. Schwartz:

Yes, sir.

In fact, he has told the Shaker Heights bus people that he wants space should he prevails.

William H. Rehnquist:

Prevail what, in the primary?

Leonard J. Schwartz:

Should he prevail this case here for the primary.

At the conclusion yesterday, we had covered two coins.

One, that the test which must be applied with compelling state interest test.

And two, we could examine the justifications for the policy presented by the city and found that they would not stand up scrutiny.

Today, I would like to address myself to the final point in this case.

And that is the grounds upon which the Ohio Supreme Court ruled and which we feel are not only unsustainable but are quite ridiculous.

The Ohio Supreme Court ruled against petitioner, principally on the ground that the establishment of a commercial advertising program could not be considered to have opened a forum because this Court had previously ruled that commercial advertising was not free speech.

Hence, it followed according to the Supreme Court that no forum was open for free speech.

Well, the argument is obviously unique.

It’s just as obviously without merit.

To begin with, Valentine involved the validity of a local sanitary ordinance.

They prohibited the distribution in the streets of commercial and business advertising matter.

The Court held that the ordinance was constitutional both on its face and as applied.

Yet, whatever validity Valentine may still have, it certainly cannot be read to permit a state to allow commercial advertising on a New York street while preventing free speech path to accept the argument that one can allow commercial speech while disallowing political speech is to implicitly overrule Hague versus CIO and to readopt the Davis versus Massachusetts rationale where the result have been any different in Hague if the city’s ordinance in that case had read, “We will allow all commercial advertising but no free speech advertising.”

The statement of the question seems to me answering enough.

Yet, of the opinion of the Ohio Supreme Court stands, if the commercial over free speech argument works in the transit cars, I could not — for the life me say, “Why it does not work in public parks, the city streets, on open military bases, in municipal owned auditoriums, near school houses or anywhere else that the open forum doctrine has been used to prevent selective exclusions from a public facility.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Warren E. Burger:

It would follow from your position that a newspaper would be required to accept all political ads.

Would it — or does that not necessarily follow from your posture?

Leonard J. Schwartz:

I believe it only follows if the paper is run by the Government, such as we have in some school cases.

Warren E. Burger:

In other words you must have the state action factor.

Leonard J. Schwartz:

Yes, Your Honor.

Without the state action factor, of course, there is no open forum that comes into play.

In the university where there have been several cases where the state action is involved, courts have universally held that there is an open forum.

What we have tried to point out in our brief is that the real question is not whether there is an open forum for free speech, but whether the forum has been dedicated for speech.

Once the city has made the initial determination that advertising does not interfere with its primary function of moving people from one point to another.

They have opened the forum, they have determined that advertising does not interfere with its primary function.

At that point, they cannot exclude based on reference, the content.

It is at that point that should — the Mosley case comes into play.

Now, that doesn’t —

Potter Stewart:

How much — how much this advertising — how much was it going to cost if it had been available?How much it cost to other cities in Metromedia Advertising?

Leonard J. Schwartz:

I don’t recall it.

It is in the appendix and I can find it.

But the — the right for political advertising is higher —

Potter Stewart:

That’s what I thought.

Leonard J. Schwartz:

— that the right for regular commercial.

Potter Stewart:

And none of the cases that you have cited involving, certainly, Mosley and the others as I remember it, none of it involved of fee charged by government, did they?

Leonard J. Schwartz:

Well —

Potter Stewart:

A fee that some might be able to pay and others might not.

Leonard J. Schwartz:

Not — Mosley did not involve that.

The cases cited from the California Supreme Court and from the Washington Supreme Court.

Potter Stewart:

Cases except from this one?

Leonard J. Schwartz:

Certainly, who are similar to this one and involved the fee problem.

Potter Stewart:

You don’t know how much this is going to — most of your client hadn’t been available Mr. Lehman?

Leonard J. Schwartz:

No, I do not know what it was going to cost Mr. Lehman had he been able to rent the space.

Potter Stewart:

But it is higher than the commercial rate?

Leonard J. Schwartz:

It is higher than the commercial rate.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Potter Stewart:

Generally, cash is required in advances.

Leonard J. Schwartz:

I couldn’t answer that, I simply don’t know.

William H. Rehnquist:

If the city put commercial advertising on its garbage trucks, would you think that the same principle that you are urging here with respect to public transport should apply or do you think, there the city might have a stronger argument that he just doesn’t look right to see a publicly owned truck going around with political advertising on it?

Leonard J. Schwartz:

Well, I think I would make the same argument, Your Honor.

I think once they have determined that advertising would be appropriate on that particular place.

They accepted the individual involved to determine whether or not he would want his political advertising to be on the garbage truck.

I can’t say that the State has the right to make that determination, unless they can show a compelling state interest.

William H. Rehnquist:

But what about the interest of not wanting to become identified as a city with — with the campaign of one particular parties and candidate?

Leonard J. Schwartz:

Well, as long as they make it available equally, that would not have — certainly, it has never happened in those areas in which Metromedia does allow political advertising.

I just simply do not believe that the American public is naïve enough to believe that the city is supporting some.

And secondly, I believe that they can always have an exclaimer — disclaimer placed on the ad.

As far as the question about the garbage truck, I don’t think personally, that a politician would want his son on the garbage truck.

But again, I — I really feel that that’s a decision to be made by the person involved.

And it — it brings us to a point of, should the city itself say that there is something inherently wrong with politics that we have to hide political science from view.

I — I would really fear —

Warren E. Burger:

Well, would a — would you think a newspaper that refused to accept the ads was in effect declaring that there was something inherently wrong with political campaigns?

Leonard J. Schwartz:

No, I’m not sure that I would but on — yet, regardless, there would be nothing we could do about it because of the state action.

But for the State itself, to say, there is something inherently frightening about a commercial that advertises a man who is running for office.

It seems to me just to fly on the face of the whole First Amendment.

I referred it something that Justice Brennan — Mr. Justice Brennan wrote in dissent that the suggestion that constitutionally protected political signs may be banned because some persons may find the ideas expressed offensive is in itself, offensive to the very meaning of the First Amendment.

Potter Stewart:

Can you say that was a dissent?

Leonard J. Schwartz:

Yes, Your Honor.

I think that Mosley is the last and most recent, the long line of unbroken decisions of this Court which is held at the public forum right is a guarantee of nondiscriminatory access to publicly owned or controlled areas of communication.

Regardless of the primary purpose, for which the area is dedicated.

So long as the transit system finds that transit advertising does not interfere with its primary role of moving people.

It cannot selectively exclude from speaking on the basis of what is to be said.

The State cannot select which issues are worth discussing or debating in public facilities.

Hence, the only real issue in this case is whether or not there is a compelling state interest for the selective exclusion.

An examination as we did yesterday of the rationale for this policy finds that there is no compelling state interest.

Thank you.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Potter Stewart:

Before you sit down, on page 13 of your brief that you have (Inaudible), Footnote 18.

It’s a minor point but I want to be sure I understand the right that you’re talking about.

Are you talking about the — do you see the Footnote 18 there?

Leonard J. Schwartz:

Yes, sir.

Potter Stewart:

The protection against not — the protection against nondiscriminatory access.

You don’t quite mean that, do you?

You mean protection against discriminatory access.

Leonard J. Schwartz:

Against discriminatory access.

Potter Stewart:

Or — or the guarantee of nondiscriminatory access?

Leonard J. Schwartz:

Yes, sir.

Potter Stewart:

(Inaudible)

Leonard J. Schwartz:

Yes, sir.

It should be the protection against nondiscriminatory —

Potter Stewart:

Or the guarantee of nondiscriminatory access, right?

Leonard J. Schwartz:

Right.

Potter Stewart:

Thank you.

Leonard J. Schwartz:

Actually, a reference to Mosley decision, where the Court determined a First Amendment, Fourteenth Amendment case with reference to the Fourteenth Amendment Equal Protection rather than solely based on the First Amendment.

Warren E. Burger:

Thank you Mr. Schwartz.

Mr. Donaldson.

Paul R. Donaldson:

Mr. Chief Justice and may it please the Court.

This case was originally tried by Mr. Walter C. Kelly who was then the Law Director of the City of Shaker Heights and has successfully defended the action throughout the courts of Ohio.

About a year ago, one of the defendants in the case, Paul K. Jones and mayor of Shaker Heights, retired and Walter C. Kelly took his position, then I then became the law director and inherited the defense of this case in this Court.

To my knowledge, the exact question on this case has never been answered by any Court in this country.

And that is whether the First Amendment precludes the municipality from refusing to sell political advertising when it sells all other forms of paid commercial and non-commercial advertising for display upon a transit system it owns and operates.

I’d like to point out the burden here is on the petitioner to demonstrate the unconstitutionality of the city’s policy.

I think, we have basically four classes of the forum involved.

One is newspapers, magazines, television and radio stations in which the courts have held that these are open forums where political advertising must accept all forms of advertising.

Public meeting room streets and parks are second category, which also come out to the First Amendment.

There is the rapid transit street cars and so forth which we feel that there is no inherent right to begin with if we permitted no advertising whatsoever.

There would be no right for the petitioner here to place his political ads on a rapid transit.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Harry A. Blackmun:

I think the petitioner agrees with you about that.

Paul R. Donaldson:

Right.

Harry A. Blackmun:

That you could verbally and validly to say there’s going to be no advertising on our cars.

Paul R. Donaldson:

That’s right, sir.

Harry A. Blackmun:

But the point is since you have said there’s going to be advertising on our cars, that’s what he says makes this an open forum so to speak.

Paul R. Donaldson:

That’s correct.

Harry A. Blackmun:

In other words, there is no dispute as I understand it between you and the petitioner as to your right to say, “We’re not going to have any kind of advertising on it.”

Paul R. Donaldson:

That’s right, Your Honor.

Thurgood Marshall:

Why do you prohibit political advertising?

Paul R. Donaldson:

Well, they prohibit political advertising for a number of reasons —

Thurgood Marshall:

Is it all political advertising?

Paul R. Donaldson:

All political advertising including bond issues, including candidates running from our own school board or our own city.

They’re all prohibited from advertising.

It is a completely nondiscriminatory policy.

It’s been in effect for 27 years, it’s been attacked only once before and it was upheld by both the Common Pleas Court and the Eighth District Court of Appeals of Cuyahoga County, Ohio.

We refuse all candidates even –even our own issues —

Thurgood Marshall:

Why?

Paul R. Donaldson:

— even our own issues.

Thurgood Marshall:

Why?

Paul R. Donaldson:

Well, we feel that there is a number of reasons first of all probably, one of the most important is showing political favoritism towards any candidate.

Well, I think —

Thurgood Marshall:

When you show this — when you carry the one for quaky breakfast meal, is that your approval of quaky breakfast meal?

Paul R. Donaldson:

No, it does not.

But I don’t think the public looks at that, as it might look at the same thing of a political candidate.

Thurgood Marshall:

Well, if you carried the advertising of the opponent to the present mayor in office, would that be considered if the mayor was approving or disapproving?

Do you think anybody is that stupid?

Paul R. Donaldson:

No, not if we carry both of them but one of the biggest problems with our particular system and call the Court’s attention to the petition for a writ on page 13(a), it sets forth the part of the contract of Metromedia, Inc. and the bottom paragraph of item 10 of the contract which is a standard contract used throughout the country.

That political advertising will not be accepted on the following systems, the Shaker Rapid, Maple Heights, North Olmsted, and Euclid.

But I think there is a good reason for this even though political advertising is accepted on larger systems.

And that is that we have only 55 rapid transit vehicles.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Paul R. Donaldson:

We have 20 spaces in each vehicle.

Usually, when somebody advertise — they advertises, they take the ad for a full month on a — to cover one space in each of the 55 cars because at times, somebody’s cars are out of service, they’re in the car shop for repairs or for cleaning, some are not used during non-rush hours and in the wee hours in the morning and things of that nature.

With a bedsheet type pallet that is very common in our area, we would end up with more candidates that could conceivably ended up in more candidates than we have space.

Also these ads —

Thurgood Marshall:

So — so therefore because you had too many, you might have too many or all.

Paul R. Donaldson:

That’s right.

Thurgood Marshall:

Merely because it’s political.

Now, are there any other reasons?

Paul R. Donaldson:

Well, there is one other reason that we would then — if we gave up all of the space to the political advertising —

Thurgood Marshall:

But suppose you had all of the space brought up the quaky crackle breakfast —

Paul R. Donaldson:

We would not permit anyone to buy up all the space.

Thurgood Marshall:

But you could — but could you put the same rule into political ads and limit them?

Paul R. Donaldson:

We could limit them but I don’t think we have enough space to go around.

Very often, we have money more than 20 candidates running at our own —

Thurgood Marshall:

How many applications —

Paul R. Donaldson:

— city.

Thurgood Marshall:

— did you have this time?

Paul R. Donaldson:

I really don’t know how many applications there were.

This is the only one that was called to my attention.

Thurgood Marshall:

What other reason do you have?

Do you take any other kind of ad under the sun not political?

Paul R. Donaldson:

Well, right.

We have ads that — we took pre-Christmas ads at the same time being advertised.

The political ads would be on during the month of October and early part of November.

If we took all political ads, we would then be losing that business which we might not get back.

Thurgood Marshall:

I don’t understand that this case doesn’t involve taking all political ads.This case involved taking one ad.

Paul R. Donaldson:

I think if we open the forum, Your Honor, to one ad, then we must take all political ads anybody that wants to advertise.

I think that’s been the difference in all these other cases.

Thurgood Marshall:

And what evidence do you have of that, that that would happen?

Your theory, that’s about all it is.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Thurgood Marshall:

It’s your educated guess.

Paul R. Donaldson:

Well, I think that wherever one candidate advertises, others follow a suit and then determine that that’s the proper forum for them, they use it too.

They think they can get votes those running for political office.

Thurgood Marshall:

Is there any other reason?

Paul R. Donaldson:

Pardon?

Thurgood Marshall:

Is there any other reason for barring political ads?

Paul R. Donaldson:

Well, we — we feel that this is the fairest and best policy.

It has the least room for abuse.

We — we have a non-partisan government ourselves.

We want to keep it that way.

We have no denial here of equal protection.

There are no vague or standardized policies involved.

We feel this is the — the best policy for the entire community and because we do have a small system and a very limited system.

Our system runs from the City of Shaker Heights into the City of Cleveland and cover — we’d cover all those candidates running for county office, City of Cleveland offices or Shaker Heights offices.

Harry A. Blackmun:

How many of these spaces are committed for long periods to ordinary commercial advertising?

Paul R. Donaldson:

As far as I know, each space has taken for a month in a time now, whether they take them for more than one month, I — I think probably depends on the requirements that the advertising company has.

Harry A. Blackmun:

But I — I take it — an application is honored only when there’s an available space?

Paul R. Donaldson:

Yes.

Harry A. Blackmun:

Do you have any — any standard practice in that respect?

Paul R. Donaldson:

Well, I think that —

Harry A. Blackmun:

I mean, even if you have a number of applications, is it on a first come first serve —

Paul R. Donaldson:

Probably on a first come first serve basis and probably, take newer ads over older ones so that we can keep the business circulating.

Harry A. Blackmun:

Well, if are required to take political advertising, I take it you’d have to adopt the same procedure to —

Paul R. Donaldson:

Well, yes and no except that political ads are usually only on the rapid transfer for a two-month period or it would normally be on for approximately a one-month period prior to the primary and general elections.

Harry A. Blackmun:

But it would still be a problem I expect of available spaces.

Paul R. Donaldson:

It would be very much of a problem of equal space and equal time.

Harry A. Blackmun:

And then — then I suppose you would have a problem of which to take if you do it on a first come first serve basis of some other comparable mutual procedure.

I don’t imagine your problems would be any different than they are with ordinary commercial advertising, would they?

Paul R. Donaldson:

Well, I think probably what would happen is we would just discontinue the policy and lose our $12,000 a year income which is a very important income to cities and particularly, your transportation systems which I find it extremely difficult to operate these days out of the farebox.

At which point, the petitioner would gain no rights whatsoever and — and no one would have any — any right to advertise on the rapid transit.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Paul R. Donaldson:

The only thing that would happen is that the taxpayers in the City of Shaker Heights would lose their revenue.

In each of the cases that have been cited by the petitioner, we feel there is a forum that has been previously opened up.

Petitioner states on page 8 of his brief that Wirta case — Wirta versus Alameda-Contra Costa Transit District allowed only commercial advertising and I like to point out to the Court that the Wirta District — transit district allowed political advertising in connection with and at the time of a duly called election being held within the boundaries of the district.

And the Court went on to state that our problem therefore is to reduce to a situation of which a governmental agency is refused to accept an advertisement expressing ideas admittingly protected by the First Amendment for display at a forum in which the agency is deemed suitable for the expression of ideas through the medium of paid advertisements.

In that case, we did have a forum that has been previously opened, not so in the instant case.

The other case which the petitioner relies on is that of Mosley — Police Department of Chicago versus Mosley in which an ordinance prohibited all picketing with an 100 feet — 50 feet of a school, except peaceful picketing involving labor disputes, again of distinction.

Peaceful picketing involved in labor disputes was okay but any other kind of peaceful picketing was not.

And the Court said, once a forum is opened up to assembly or speaking by some groups, the government may not prohibit others from assembling or speaking on the basis of what they intend to say.

Selective exclusions from a public forum may not be based on content alone.

It may not be justified by reference to content alone.What our argument again is that a forum had been opened up.

There has been discrimination in that particular case.

In Valentine versus Chrestensen, this is the first case that presented — squarely presenting to the Supreme Court the issue of First Amendment protection of commercial advertising.

Here, Mr. Chrestensen, owns of a submarine, which he brought to New York City to exhibit and was informed by the city ordinance prohibit the distribution of handbills.

He then credited a protest on the reversed side of those handbills against the ordinance and against the police department.

This Court stated at page 54 of its opinion that we are equally clear that constitution imposes no such restraint on Government that respects purely commercial advertising.

And that again is our point that this is only commercial advertising and if there has been a distinction made by this Court between commercial advertising and other kinds of advertising.

In the Pittsburgh Press case which is just decided last year by this Court.

The ordinance prohibits classified ads — ads for employment listed by sex.

Justice Powell’s opinion held the ordinance does not violate Newspaper Publisher’s First Amendment rights.

The respondent relied principally on the argument that this regulation is permissible because the speech is commercial speech, unprotected by the First Amendments traceable to the Valentine case.

Although the Court acknowledged the principle in the Valentine case, it distinguished the same in this case because the ads further — an illegal purpose that is sex discrimination.

The question here as I see it is — does commercial advertising create an unlimited forum?

Does the acceptance of commercial advertising or how does the acceptance of commercial advertising which does not involve any First Amendment rights operate to create First Amendment rights were non-existent to begin with.

We have public service signs in hospitals, libraries, public buildings, and so forth.

Does this mean that we have opened up political forum for political science — or opened a forum rather than for political science.

Or can every candidate, who is running for public office insists on placing this political science in any federal building displaying public service advertising.

There is and must contain to be a distinction between commercial, public service and political advertising as a matter of practicality.

Or to put it in other way, are the places where political science permitted the only places where commercial science and public service science are to be permitted.

We strongly feel that the policy of the City of Shaker Heights is the fairest and the best policy — it involves no discrimination, is in fact not a forum for political science.

Warren E. Burger:

Mr. Donaldson, what would you have to say about an ad that League of Women Voters or the junior chamber of commerce wanted to put in — in the months preceding the election which resided simply of — it is your duty as a citizen to vote on November 4 or whatever the election date is.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Warren E. Burger:

That is commercial or political?

Paul R. Donaldson:

We would regard that as a public service advertisement which we do accept.League of Women Voters and does not take a stand-on on candidates.

If they took a stand on the issue, I think they do take a stand on issues but if they took a stand on an issue, we would not accept the ad and we will regard that as political.

In the Zucker case quoted by the petitioner in this case dealt with the right of high school students to publish a paid advertisement in their school newspaper opposing to Vietnam War and the Court in that case held that a newspaper is a forum for the dissemination exchange of ideas and the essence of the First Amendment protections is extended to this media.

That again places newspapers in the category with magazines, televisions, and radio of advertising.

Potter Stewart:

Newspapers that where published by Government — at a government university.

Isn’t what that involves?

Assuming, if you were a newspaper, you’d have an absolute right.

You’d have a constitutional right to turn down any advertising you wanted, wouldn’t you?

Paul R. Donaldson:

No, this — this — a school and newspaper operated by the school in a high school.

Potter Stewart:

Well, it’s a public school, isn’t it?

Paul R. Donaldson:

Right.

Potter Stewart:

Tax-supported school.

Paul R. Donaldson:

Right.

Potter Stewart:

Tax supported newspaper.

Paul R. Donaldson:

Right.

Potter Stewart:

I hope you’re not — you said that twice that a newspaper has a duty to carry any advertising is profit to.

I would suggest to you that it has an absolute constitutional right not to.

Paul R. Donaldson:

Well, the cases involved here are those involving schools —

Potter Stewart:

Government-run newspapers.

Paul R. Donaldson:

Right, right.

In the case of CBS versus the Democratic National Committee in 1973, Chief Justice Burger held the public into standard of Communications Act of 1934 which invites reference that the First Amendment principles does not require broadcasters to accept editorial advertisements.

The FCC was justified in concluding that the public interest in having access to the marketplace of ideas and experiences would not be served by ordering a right of access to advertising time.

There is some substantial risk that such a system would be monopolized by those who could and would pay the cost and that the effective operation of the Fairness Doctrine itself would be undermined.

William H. Rehnquist:

But there — the initial decision was by broadcasters who were not government owned too, wasn’t it?

Paul R. Donaldson:

That’s correct but they do come out to the government standards, the government control and the Federal Communications Act.

We submit that our policy is the same that there — it’s very well could be monopolized with a small number of cars that we have and the small number of advertising spaces.

Warren E. Burger:

But wasn’t the predicate of the opinion in the CBS case as you’ve called it that there was no state action involved in the functioning of broadcasters.

Paul R. Donaldson:

Right.

Warren E. Burger:

Was it for that limited purpose, although not necessarily for other purposes, a broadcaster was equated to a newspaper.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Paul R. Donaldson:

Right.

Byron R. White:

You have a non-parties in elections?

Paul R. Donaldson:

Yes, sir.

Byron R. White:

You don’t allow anybody to run on a picketing (Inaudible)

Paul R. Donaldson:

No, sir.

Byron R. White:

So you keep the people from speaking (Inaudible) conflicts in your election campaign?

Paul R. Donaldson:

No, it’s just the way they filed for the election, they can speak about (Voice Overlap)

Byron R. White:

But they don’t — they don’t give (Inaudible) they don’t run as a party.

Paul R. Donaldson:

They don’t run as a party but they — the file is non-partisan — rather than non-partisan ballot, but during the campaign, they can speak anything they wish.

Byron R. White:

But what about the —

Paul R. Donaldson:

They have certainly identified all those as members of both the major and political parties.

Byron R. White:

They’re found non-partisans but as they run, do they — they say they act as a partisan candidate?

Paul R. Donaldson:

Some do, some don’t.

Byron R. White:

There’s no rule against it?

Paul R. Donaldson:

No, sir.

William H. Rehnquist:

Mr. Lehman’s candidacy, I take, it was for the state representative of the general assembly.

And that would have been a partisan designation one way or the other.

Paul R. Donaldson:

Yes, sir.

William H. Rehnquist:

Even though he was in a district that included Shaker Heights.

Paul R. Donaldson:

Right.But again, that shows you how broadly the forum could be opened up to two state candidates, as well as county — City of Cleveland, and the City of Shaker Heights, so we could end up with a very — likely a group of people that would like to advertise on the rapid transit.

I don’t know of any way that we could properly handle all of them.

Hillside versus the City of Tacoma, the specific — thus a specific form as action — a contract with the Tacoma Transit Authority asking the respondent to remove the end of Vietnam War signs is objectionable.

The general rule of law in this respect is that while a state is on a no-duty to make its public facilities available for private purposes if it elects to do so.

It must make them available in a nondiscriminatory basis and we do regard the constitutional right of freedom of expression.

We maintain that here again, we have a nondiscriminatory policy and that we have not opened up the forum to any political advertising whatsoever.

William H. Rehnquist:

You — you get payment in advance from your commercial advertisers or do you bill them after the ad has run?

Paul R. Donaldson:

Well I noticed from reading the contract that they require — as a forum contract requires that paid political advertisements shall be paid for in advance.

So I would presume that apparently, they don’t ask for the commercial advertising in advance, maybe some deposit or something like that.

William O. Douglas:

Do your commercial ads include literature, movies, things shown like the Last Tango or books, anything like that?

Paul R. Donaldson:

No, sir.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Paul R. Donaldson:

Public service ads involved the boy scouts and things of that nature.

William O. Douglas:

Why do you draw the line of literature?

That’s commercializing.

Paul R. Donaldson:

Well, I don’t know why the line has been drawn.

Again, I was not in this case in the beginning.

And I don’t think that issue from my reading of the case that issue never arose during the —

William J. Brennan, Jr.:

Well Mr. Donaldson — are you suggesting that you wouldn’t accept the commercial ad for a bookstore or for a daily newspaper or for a radio station?

Paul R. Donaldson:

Oh no, I think we accept those.

William J. Brennan, Jr.:

Oh, I misunderstood you in your answer to my brother Douglas.

Paul R. Donaldson:

No, I thought he was referring to a specific book or a specific movie.

William J. Brennan, Jr.:

Well —

William O. Douglas:

I was giving you an example.

William J. Brennan, Jr.:

Would you not accept a commercial ad for a particular movie?

They would not plan on.

Paul R. Donaldson:

I really couldn’t answer that.

— I presume, of course —

William O. Douglas:

Do you have censorship in Shaker Heights?

Paul R. Donaldson:

No, we do not.

Other than the contract provides that the city can —

William O. Douglas:

— the prosecute the books that are alike to be obscene?

Paul R. Donaldson:

The contract provides that the vulgar, greedy, immoral, monopolistic, illegal or unfair advertisements are not —

William J. Brennan, Jr.:

No longer in political advertisements, I think.

Paul R. Donaldson:

And political advertising —

William J. Brennan, Jr.:

Well aren’t those — isn’t that language, you can find it political?

Any political copy and what it says, I’m looking at footnote 5 on page 4 of the petitioner’s brief.

Paul R. Donaldson:

Right.

William J. Brennan, Jr.:

The policy, whether you consider an advertisement for a movie political copy?

Paul R. Donaldson:

No.

William J. Brennan, Jr.:

I don’t want to be — this is quite important I think.

Are you telling us that you would not accept a commercial advertisement for a bookstore or a newspaper, or a particular radio program or a movie?

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Paul R. Donaldson:

No, we do accept — we do accept commercial advertisements for newspapers, I know that.

William J. Brennan, Jr.:

I thought your whole plan was — accepted commercial advertising in all kinds.

Paul R. Donaldson:

Well, I think we do basically.

William H. Rehnquist:

Have you ever been tendered an ad for a particular newspaper so that you have something in the actual experience to know whether or not you’d take it?

Paul R. Donaldson:

I’ve seen ads advertising both the daily newspapers in the Cleveland area.

But we do take those kinds of ads whether we would take one for a particular movie or not, I presume we do.

I’ve — that question has never come up and I’ve never — I had to rule on whether we would accept one or not.

These are mainly handled through our advertising agency which is one of the respondents from the case Metromedia.

William J. Brennan, Jr.:

I noticed that the forum contract 15a, the one says that it will not display advertising copy to dispose, misleading, deceptive and or offensive to the moral standards of the community or contrary to good taste copy which might be contrary to the best interest of the transit systems.

Or which might result in public criticism of the advertising industry and or trends of advertising will not be acceptable.Who polices that provision?

Paul R. Donaldson:

Metromedia has a police force up through the 27 years that we have owned the system.

And to my knowledge, only once before has anything ever been challenged, any ads that has been challenged to the city directly.

William J. Brennan, Jr.:

Well, I take it in advertising an advertisement that suggested see to see the Exorcist at such — such a theatre might under this, do you refuse?

Paul R. Donaldson:

I don’t think so, 10 years ago maybe but not today.

I just like to reiterate that we feel again that our policy is fair and it’s the best one for the entire community to operate under and that it presents no discrimination.

There is an absolute prohibition that has never been violated.

There’s no censorship involved and no vague or standard policies that has been set forth in some of the — for all the cases and that every one of the case is cited by the petitioner can be distinguished from the instant case.

Thank you.

Warren E. Burger:

Thank you, Mr. Donaldson.

Do you have anything further, Mr. Schwartz?

Leonard J. Schwartz:

Yes, Your Honor.

Very quickly, I’d like to answer a few things.

The rights for advertising — for political advertising is shown in the appendix of page 59 of Justice Marshall as $2.90 per card — per card.

This is a one-month right, the right — the testimony says that the right was somewhat less than $2.90 for a period of over one month but it does not state, how much less.

What —

William J. Brennan, Jr.:

Assuming that you’re right, political advertising must be accepted.What do you say of the problem with limited spaces?

Leonard J. Schwartz:

Your Honor, that was —

William J. Brennan, Jr.:

How it would ever be —

Leonard J. Schwartz:

I’d like to refer the Court page 13(a) the petition for writ of certiorari which is the copy of Metromedia’s regulations.

Paragraph 8, equal opportunity to purchase space will be offered and allotted for each opposing candidate upon issue or referendum.

Audio Transcription for Oral Argument – February 26, 1974 in Lehman v. City of Shaker Heights

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Leonard J. Schwartz:

If necessary, contracts for political advertising will be held until 30 days prior to the contract posting date at which time Metro Transit advertising will allocate the advertising space to each candidate issue or referendum.

As to the argument of the —

William J. Brennan, Jr.:

If you have 20 candidates and 20 spaces, this means it would reduce all other commercial advertising for that period — date period and in light of the 20 spaces to the 20 candidates?

Leonard J. Schwartz:

No, sir, Your Honor.

If they’ve already contracted of those 20 — or five —

William J. Brennan, Jr.:

Well it’s like 18.

Leonard J. Schwartz:

That it — well the point is, they would allocate the spaces that are not contracted for.

And it may be that if there are more applications per our car, they would have to allocate that you can only have one on every four cars.

William J. Brennan, Jr.:

But suppose they’ve contracted all 20, the regular constitutional — regular commercial or institutional advertising?

Leonard J. Schwartz:

In that case, they would not have to accept.

William J. Brennan, Jr.:

Any political advertising?

Leonard J. Schwartz:

Any political advertising.

It is only if there is space available.As in this case, the testimony shows there was.

The argument that if respondents lose this case, they are going to cease advertising and thereby, lose $12,000 annually seems to me rather strange and we’re willing to take the chance that they will not close down their total advertising.

And finally, in conclusion, I submit that respondents would like this Court to do is turn Valentine upside down.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted well here —