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Court of Appeal, First District, Division 1, California.

Frances WIRTA and Madeleine Duckles, Plaintiffs and Respondents, v. ALAMEDA-CONTRA COSTA TRANSIT DISTRICT and Metro Transit Advertising, a California corporation, Defendants and Appellants.

Civ. 23859.

Decided: August 11, 1967

Robert E. Nisbet, Oakland, for appellant (Alameda-Contra Costa Transit Dist.). Heller, Ehrman, White & McAuliffe, Caspar W. Weinberger, M. Laurence Popofsky, San Francisco, for appellant (Metro Transit Advertising). Joseph R. Grodin, San Francisco, Marshall W. Krause, American Civil Liberties Union of Northern California, San Francisco, for respondents.

Appellant Alameda-Contra Costa Transit District (which we shall call the District) is organized under the Transit District Law, set forth in Public Utilities Code sections 24501–27509. It is a political agency of the state with power to levy taxes (§§ 25891–25904) and of eminent domain (§§ 25703, 25771). It is in effect a legislative body since its acts may be expressed by ordinance (§§ 24909–24912). Its purpose is public passenger transportation in Alameda and Contra Costa Counties.

Appellant Metro Transit Advertising (herein called Metro) is a private corporation engaged in the advertising business. Under a 1961 agreement it sells advertising space on the District's motor coaches, the District taking a percentage of gross sales. Income to the District exceeds $80,000 yearly. The ultimate beneficiaries of this income are, of course, the taxpayers of the District.

The agreement provided, among other things, ‘Political advertisements and advertisements on local or nation controversial subjects are not acceptable unless approved by District.’ Metro thereafter inquired as to the conditions under which it could accept ‘political advertisements.’ It was advised by the District on July 26, 1962, that ‘Political advertisements may be solicited by your firm and the responsibility in connection therewith shall be the sole responsibility of your firm. It is understood that opportunity to obtain advertising space shall be afforded the opposing candidates or groups supporting the opposite side of any proposition or bond issue.’ (Emphasis added.)

Metro thereupon announced publicly that it would accept political advertising, specifying among other things, ‘Equal space will be offered and allotted for each opposing candidate, bond issue, or referendum.’

In August 1965 an unincorporated association called ‘Women for Peace’ attempted to buy space from Metro in the District's motor coaches for an advertisement showing a picture of a crude wooden cross bearing a soldier's helmet at the head of a rough grave mound. It bore the caption ‘Will your loved one spend Christmas in Viet Nam?’ The offered copy was refused. Women for Peace then offered different advertising copy, this time directly to the District. The copy consisted of a placard bearing the message, “Mankind must put an end to war or war will put an end to mankind.' President John F. Kennedy, Write to President Johnson: Negotiate Vict Nam. Women for Peace. P.O. Box 944, Berkeley.' Accompanying this offer was a demand for an immediate response as to its acceptability. This was followed by a communication announcing, if the copy was found unacceptable, an intent to seek an in junction forbidding acceptance of all advertising by the District.

The District's governing board thereafter, on October 6, 1965, reaffirmed its previously expressed policy concerning political advertising by adopting the following resolution:1 ‘The Board of Directors of the Alameda-Contra Costa Transit District states that it is its policy with respect to paid advertising on its equipment that it 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.’ (Emphasis added.) The proposed advertising copy was refused.

Respondents Wirta and Duckles are officers of Women for Peace. Individually and on behalf of their organization they commenced action to enjoin the District and Metro from refusing to accept the subject advertisement and similar copy. They also sought a preliminary injunction.

Following a hearing the court concluded that ‘The refusal of defendants to accept said advertisement constitutes an unconstitutional abridgement of plaintiffs' right of free speech protected by the First and Fourteenth Amendments to the Constitution of the United States and by article I, section 9 of the Constitution of the State of California, and a denial to plaintiffs of the Equal Protection of the Laws guaranteed by the Fourteenth Amendment to the Constitution of the United States.’ An order granting a preliminary injunction was then entered enjoining the District and Metro from refusing to accept the subject advertisement. It is from this order that the instant appeal has been taken.

The appellant District states the issue before us by the question, ‘May a public transport district establish and follow an advertising policy with respect to political or controversial subjects which provides that available space will be allocated equally to candidates or issues to be voted on at official elections within the boundaries of the district and which policy also provides that such advertisements may be displayed only in conjunction with such an election, without abridging plaintiffs' rights of ‘free speech’ or ‘equal protection’ of the laws?'

It might first be noted that the First Amendment's guarantee of free speech does not of itself give Women for Peace, or anyone, a right to advertise in the District's motor coaches.

The right of free speech is not absolute; it has its limitations and not all restraints thereof are invalid. (Konigsberg v. State Bar, 366 U.S. 36, 49, 81 S.Ct. 997, 6 L.Ed.2d 105; Times Film Corp. v. Chicago, 365 U.S. 43, 47–49, 81 S.Ct. 391, 5 L.Ed.2d 403; Near v. State of Minnesota, 283 U.S. 697, 797, 51 S.Ct. 625, 75 L.Ed. 1357; Stromberg v. People of State of California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117; Canon v. Justice Court, 61 Cal.2d 446, 456, 39 Cal.Rptr. 228, 393 P.2d 428.) ‘[T]he selection of the means of communication and the use of such means is not limitless.’ (Woolam v. City of Palm Springs, 59 Cal.2d 276, 284, 29 Cal.Rptr. 1, 6, 379 P.2d 481, 486.) ‘The rights of free speech * * * while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.’ (Cox v. State of Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471.) In Adderly v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.E.2d 149, the United States Supreme Court rejected an argument referred to by the court as having ‘as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.’ And California's Supreme Court has held that the First Amendment grants one no right to use a public school as a forum. (Danskin v. San Diego Unified Sch. Dist., 28 Cal.2d 536, 545–547, 171 P.2d 885.)

However, if the state does allow to some the use of its facilities as a forum, the ‘equal protection’ clause of the Fourteenth Amendment precludes the state from arbitrarily denying a similar use to others. (Cox v. Louisiana, supra, 379 U.S. 536, 557, 85 S.Ct. 453, 13 L.Ed.2d 471.) The question in such a case is whether there is any reasonable ground for such a distinction or classification. (Nicol v. Ames, 173 U.S. 509, 521, 19 S.Ct. 522, 43 L.Ed. 786.) The classification must rest on some difference which bears a reasonable and just relation to the public welfare and to the subject matter in respect of which the classification is made. (McLaughlin v. State of Florida, 379 U.S. 184, 190, 85 S.Ct. 283, 13 L.Ed.2d 222; Mayflower Farms v. Ten Eyck, 297 U.S. 266, 274, 56 S.Ct. 457, 80 L.Ed. 675.)

Where the classification might possibly impinge on fundamental rights the equal protection clause of the Fourteenth Amendment demands rigorous examination of the standards set before the particular restrictions will be sustained. (See Talley v. State of California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559 [concurring opinion at p. 66 et seq., 80 S.Ct. at p. 539]; Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480; Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655; Canon v. Justice Court, supra, 61 Cal.2d 446, 456–459, 39 Cal.Rptr. 228, 393 P.2d 428.) The state bears a heavy burden of demonstrating the practical necessity for the limitation, and must demonstrate that the restriction is narrowly drawn to the extent necessary to accomplish only its legitimate purpose. (Bagley v. Washington Township Hospital Dist., 65 A.C. 540, 545–549, 55 Cal.Rptr. 401, 421 P.2d 409; see also Sherbert v. Verner, 374 U.S. 398, 406–407, 83 S.Ct. 1790, 10 L.Ed.2d 965; Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 6 L.Ed.2d 563; Canon v. Justice Court, supra, 61 Cal.2d 446, 459, 39 Cal.Rptr. 228, 393 P.2d 428; Wollam v. City of Palm Springs, supra, 59 Cal.2d 276, 286–288, 29 Cal.Rptr. 1, 379 P.2d 481.)

Since ‘The freedom of the individual to participate in political activity is a fundamental principle of a democratic society’ (Fort v. Civil Service Commission, 61 Cal.2d 331, 334, 38 Cal.Rptr. 625, 627, 392 P.2d 385, 387), courts will examine carefully any restrictive classification to insure that it is not a disguised mode of censorship. ‘It is not for the state to control the influence of a public forum by censoring the ideas, the proponents, or the audience.’ (Danskin v. San Diego Unified Sch. Dist., supra, 28 Cal.2d 536, 548, 171 P.2d 885, 893.)

Finally, if the classification shall survive and legal and constitutional tests we have outlined, all persons similarly situated within the accepted class must receive equal, uniform and impartial treatment. (Baxstrom v. Herold, 383 U.S. 107, 114–115, 86 S.Ct. 760, 15 L.Ed.2d 620; Hart Refineries v. Harmon, 278 U.S. 499, 502, 49 S.Ct. 188, 73 L.Ed. 475; Vogulkin v. State Board of Education, 194 Cal.App.2d 424, 431–432, 15 Cal.Rptr. 335; Lord v. Henderson, 105 Cal.App.2d 426, 436, 234 P.2d 197; 16 Am.Jur.2d, Constitutional Law, § 502, p. 878.)

In the light of the foregoing rules we now examine the complained of policy of the District to determine if there exists under the facts of this case, a rational and justifiable distinction bearing reasonable relation to public policy, between election advertising and political advertising unrelated to any election.

It might first be pointed out that advertising by the District with its resultant income, fulfills a legitimate and even commendable2 public purpose. It is proper that it should continue.3

It appears that the District's policy, which was in effect long before the instant dispute, resulted from a belief that it was necessary for the orderly, successful and evenhanded functioning of its advertising operation. At no time has the District attempted to control or censor any political or other views. Its policy excludes all nonelection political advertising regardless of content. All election ads are accepted. And it appears that special effort is made to see that opposite sides of election issues are given equal opportunity to use the District's advertising space.4

Here the District's directors have deemed it to be in the District's interest to augment its advertising income by accepting election ads. The time and amount of such advertising can be determined in advance with reasonable accuracy. The time is during the few weeks preceding each election. The probable space demand can be determined by experience. It thus is possible in an orderly way to adjust its election advertising to the demand for commercial space. The practice of offering equal space to opposition candidates and measures can easily be given effect, as such opposition can readily be identified and contacted. The adopted classification seems well designed to guarantee impartiality on the part of the District as to the accepted election advertising.

On the other hand, it is difficult to anticipate the requirements of nonelection political advertising in advance. If it is accepted on a first come—first served basis when space is available, then it must frequently be necessary either to deny equal space to others reasonably entitled thereto, or to preempt commercial space with a resultant loss of good will and future income. These considerations are referred to by appellants as some of the practical realities of public transit advertising. It is proper that some latitude by allowed, and that some reasonable deference be shown, for a public body's appraisal of familiar conditions. (See State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 397, 47 S.Ct. 630, 71 L.Ed. 1115; Dominion Hotel v. State of Arizona, 249 U.S. 265, 268, 39 S.Ct. 273, 63 L.Ed 597; Patsone v. Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539.)

We believe that the complained of policy of the District meets the pertinent constitutional tests. It is not arbitrary, but instead bears a reasonable relation to public welfare and to the subject matter of the classification. The distinction is narrowly drawn, excluding only that which is necessary in accomplishing its legitimate purpose. It does not appear that it has a tendency or has been used to censor speech or ideas. All persons similarly situated, i. e., members of each group, election advertisers, and nonelection advertisers, are treated alike. And it does not impinge on fundamental rights; instead the policy tends to subserve the principles of the First and Fourteenth Amendments by allowing a substantial area of impartial and open debate that would be closed under an admittedly permissible policy of no advertising.

The order granting a preliminary injunction is reversed.


1.  Admittedly, this resolution and the pertinent acts of the District constitute ‘state action’ of the kind which may bring the Fourteenth Amendment guarantees of the federal Constitution into play. (See 16 Am.Jur.2d, Constitutional Law, § 491, pp. 854–856.)

2.  The court takes judicial notice that the District's predecessor private transportation system was obliged to discontinue service because of operating losses. (See Witkin, Cal. Evidence, 2d ed., Judicial Notice, § 175, p. 161.)

3.  Respondents have suggested that the District, if it wishes, might properly discontinue all advertising.

4.  This practice is closely analogous to the duty imposed by Congress on broadcasting stations. While such a station need not allow its use to any political candidate, if it does, equal opportunity must be afforded opposing candidates. (See 48 U.S.C.A. 315(a).) The public benefit resulting from this encouragement of open debate is obvious.

ELKINGTON, Associate Justice.

MOLINARI, P. J., and SIMS, J., concur.

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