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The Supreme Court

Getting the Word Out

Another key controversy during election time is how much space a candidate should receive in a newspaper, in outside advertising or on the airwaves. Two recent precedent-setting Supreme Court cases involving election visibility were Lehman v. City of Shaker Heights (1974), which involved advertising on buses, and Miami Herald Publishing Co. v. Tornillo (1974), which involved equal time in a newspaper.

Harry J. Lehman sued the city of Shaker Heights because he was denied advertising space on buses in the city's transit system. He wanted to advertise his campaign on the buses, but his ads were refused by the city. Lehman said that since the city allowed other types of advertising on city buses, political advertising should also be allowed and his rights of freedom of speech and equal protection were being violated by the city's refusal to accept his ads. The Ohio Supreme Court found that the city's refusal to accept campaign advertising did not violate a candidate's free speech rights (First Amendment) or equal protection rights (Fourteenth Amendment). Lehman took it to the United States Supreme Court.

The United States Supreme Court upheld the Ohio Supreme Court's decision and concluded that car card space on a city transit system is not a First Amendment forum. The Court found:

Living Laws

The precedent set in the Lehman decision has been used by the courts to decide cases involving persons who want to use government property for expressive activity in violation of rules that restrict or prohibit such activity. The Court has ruled that a site owned by the government is a traditional forum only if by long tradition or government mandate it is devoted to assembly and debate.

“The city consciously has limited access to its transit system advertising space in order to minimize chances of abuse, the appearance of favoritism, and the risk of imposing upon a captive audience. These are reasonable legislative objectives advanced by the city in a proprietary capacity. In these circumstances, there is no First or Fourteenth Amendment violation.”

The case of Miami Herald Publishing Co. v. Tornillo involved the right of a candidate to respond to editorials critical of the candidate. This case was based on a Florida law that granted political candidates the “right of reply” to answer criticism and attacks by a newspaper and made it a misdemeanor for the newspaper to fail to comply.

The Florida Circuit Court found the statute unconstitutional because it infringed on freedom of the press and dismissed the case. Tornillo appealed the case to the Florida Supreme Court, which ruled that the statue did not violate freedom of the press guarantees and remanded the case back to the circuit court for further proceedings. The Florida Supreme Court decision was appealed to the United States Supreme Court.

The United States Supreme Court held that the statute does violate the First Amendment's guarantee of a free press. In a unanimous decision the Court ruled:

  • “Even if a newspaper would face no additional costs to comply with a compulsory access law and would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment of the Supreme Court of Florida is reversed.”
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Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.

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