Wirta v. Alameda-Contra Costa Transit Dist.

• Citation: 434 P.2d 982,64 Cal.Rptr. 430,68 Cal.2d 51
• Decision Date: 21 December 1967
• Docket Number: ALAMEDA-CONTRA,S.F. 22418
• Court: United States State Supreme Court (California)
• Parties: , 434 P.2d 982 Frances WIRTA et al., Plaintiffs and Respondents, v.COSTA TRANSIT DISTRICT et al., Defendants and Appellants.

Page 430

64 Cal.Rptr. 430

68 Cal.2d 51, 434 P.2d 982

Frances WIRTA et al., Plaintiffs and Respondents, v. ALAMEDA-CONTRA COSTA TRANSIT DISTRICT et al., Defendants and Appellants.

S.F. 22418.

Supreme Court of California, In Bank.

Dec. 21, 1967.

Rehearing Denied Jan. 17, 1968.

Robert E. Nisbet, Oakland, Heller, Ehrman, White & McAuliffe, Caspar W. Weinberger and M. Laurence Popofsky, San Francisco, for defendants and appellants.

Joseph R. Grodin and Marshall W. Krause, San Francisco, for plaintiffs and respondents.

MOSK, Justice.

We are called upon to decide whether a transit district, formed under the provisions of section 24501 et seq. of the Public Utilities Code, may constitutionally restrict the paid advertising on its motor coaches to commercial solicitation for the sale of goods and services and to issues and candidates on the ballot at the time of an election.

Plaintiffs are officers of an organization called Women for Peace, an unincorporated association operated for the purpose of promoting the cause of world peace through education, and to urge citizens to express their views on peace to public officials. Defendants are the Alameda-Contra Costa Transit District (hereinafter called the district) and Metro Transit Advertising, a California corporation (hereinafter called Metro). The district operates motor coaches for the transportation of passengers within Alameda and Contra Costa Counties and from those counties to San Francisco. The coaches contain space for advertising above the passengers' seats and, in order to facilitate the sale of this space to advertisers, the district entered into an agreement with Metro, under which the latter leases the space from the district and re-leases it to others. The agreement provides that political advertisements and advertisements on controversial subjects are not acceptable unless approved by the district, and that advertising objectionable to the district shall be removed by Metro.

On or about September 10, 1964, Women for Peace requested that it be allowed to place an advertisement on defendants' coaches, at the standard rate charged. The message read:

"Mankind must put an end to war or war will put an end to mankind.'

President John F. Kennedy.

Write to President Johnson: Negotiate Vietnam.

Women for Peace

P.O. Box 944, Berkeley.'

Defendants refused to accept the advertisement on the ground that it conflicted with the district's advertising policy with regard to paid advertisements: 'The * * * District * * * accepts only commercial advertising for the sale of goods and services, except that political advertising will be accepted in connection with and at the time of a duly called election being held within the boundaries of the District, and further subject to the conditions that (a) each advertisement bear an approved disclaimer and an indication that the advertisement was placed by an advertising agency, and (b) space be made equally available to opposing candidates or sides of a ballot measure.' Pursuant to this policy, Metro endeavors to contact opposing candidates and identifiable groups supporting the conflicting viewpoints of any ballot issue in order to apprise them of their opportunity to secure equal space for presenting their views.

Plaintiffs brought this action, ¹ alleging that defendants' refusal to accept the advertisement was an unconstitutional abridgment of their right of free speech and that the exclusion of advertisements not connected with a political campaign constituted a denial of equal protection of the laws. (U.S.Const., First and Fourteenth Amendments; Cal.Const. art. I, § 9.) They prayed for an injunction restraining defendants from refusing to accept the advertisement. The trial court found that defendants' conduct was unreasonable, discriminatory and without just or sufficient cause, unconstitutionally abridged plaintiffs' rights of free speech, and deprived them of equal protection. The court issued a preliminary injunction restraining defendants from refusing to accept the advertisement in question.

At the threshold we emphasize that the content of the advertisement in question is undeniably protected by the First Amendment. Since neither party urges the contrary, we need not labor the point. The fact that the message is proposed as a paid advertisement does not detract from the protection afforded. (New York Times Co. v. Sullivan (1963) 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686.)

The second elementary factor we recognize is that the determination of the district to accept advertising on its motor coaches serves as its considered conclusion that this form of communication will not interfere with its primary function of providing transportation. Thus, we avoid the considerations applicable to ascertaining whether public property must be made available as a forum for the exercise of First Amendment rights. (See In re Hoffman (Cal.1967) 64 Cal.Rptr. 97, 434 P.2d 353.) Here that affirmative determination has been made by the district and is not questioned by the parties. ²

Our problem, therefore, is reduced to a situation in which a governmental agency has refused to accept an advertisement expressing ideas admittedly protected by the First Amendment for display in a forum which the agency has deemed suitable for the expression of ideas through the medium of paid advertisements. This refusal is based on the ground that the agency's policy is to accept only advertisements for the sale of goods or services and certain types of political advertising at limited times. We conclude that defendants, having opened a forum for the expression of ideas by providing facilities for advertisements on its buses, cannot for reasons of administrative convenience decline to accept advertisements expressing opinions and beliefs within the ambit of First Amendment protection.

Danskin v. San Diego Unified School District (1946) 28 Cal.2d 536, 171 P.2d 885, is directly in point. There a statute provided that the governing boards of school districts were required to grant access to the schools for meetings of organizations formed for educational, political, economic, and other stated purposes but prohibited the granting of the privilege to those who constituted a 'subversive element,' as that term was broadly defined in the statute.

This court held it unconstitutional for the state to prohibit certain persons or classified groups from exercising their rights of free speech and assembly at places where others were allowed to speak and assemble. The opinion stresses, 'The state is under no duty to make school buildings available for public meetings. * * * If it elects to do so, however, it cannot arbitrarily prevent any members of the public from holding such meetings. * * * The convictions or affiliations of one who requests the use of a school building as a forum is of no more concern to the school administrastors than to a superintendent of parks or streets if the forum is the green or the market place. * * * The very purpose of a forum is the interchange of ideas, and that purpose cannot be frustrated by a censorship that would label certain convictions and affiliations suspect, denying the privilege of assembly to those who held them, but granting it to those whose convictions and affiliations happen to be acceptable and in effect amplifying their privilege by making it a special one. * * * It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience * * *. Those who are under the ban of the statute could not hold a meeting to pronounce their views with regard to pending legislation, constitutional amendments election of political candidates, or even artistic or educational matters.'

Other recent cases have held that a public school may not deny the use of its facilities for public meetings because the applicant is a 'highly controversial figure' (East Meadow Com. Con. Assn. v. Board of Ed. (1966) 18 N.Y.2d 129, 272 N.Y.S.2d 341, 344--345, 219 N.E.2d 172) or because the proposed user would present views 'opposed by substantial parts of the public' (Buckley v. Meng (Sup.Ct.N.Y.1962) 35 Misc.2d 467, 230 N.Y.S.2d 924, 933--934).

In the instant case, unlike Danskin, the ban is not upon the expression of ideas by persons or organizations whose convictions or affiliations are disapproved, but upon all ideas which do not relate to the sale of products or services or to an election. The prohibition here is painted with a much broader brush than that used by the school and condemned in Danskin. There all opinions and beliefs which fell within the protection of the First Amendment could be aired in the schools, and only their expression by purportedly subversive elements was barred, whereas here the ban is directly related to the content of the ideas sought to be published. Although the classification of ideas in the district's policy regulation is stated affirmatively in terms of the views which will be permitted to be the subjects of advertisements rather than those which are to be barred, and the regulation does not on its face indicate a preference for a particular point of view, the policy nonetheless violates plaintiffs' First Amendment rights. The vice is not that the district has preferred one point of view over another, but that it chooses between classes of ideas entitled to constitutional protection, sanctioning the expression of only those selected, and banning all others. Thus the district's regulation exercises a most pervasive form of censorship.

Not only does the district's policy prefer certain classes of protected ideas over others but it goes even further and affords total freedom of the forum to mercantile messages while banning the vast majority of opinions and beliefs extant which enjoy First Amendment protection because of their noncommercialism. No statistical data is required to demonstrate that in the totality of man's communicable...