Wirta v. Alameda-Contra Costa Transit District

BURKE, J.

I dissent. The majority base their opinion upon a single assumption: The governing board of defendant district has opened up the advertising spaces on district buses as “a forum for the expression of ideas.” If this premise were sound, then First Amendment rights would be involved and I would join in the majority conclusion that the board may not pick and choose between ideas advanced.

But no board policy determination even mentions offering such a forum. And the written contract between the board and the advertising agency provides specifically to the contrary.

*64 With but one very limited exception, the distrit board has expressly restricted the use of the bus display cards to commercial advertising for the sale of goods and services. The exception pertains to a reservation of space for use by candidates and by proponents of ballot measures (opponents, too) in local elections. There, however, as the majority point out, the board and defendant advertising agency have gone beyond the call of duty in order to afford all candidates and both sides of every local election issue full opportunity to expose their views, even to the extent of searching oxit the opponents and informing them of the opportunity to utilize card space to make their views known. Certainly, there can be no criticism of board policy with respect to the exercise of First Amendment rights as they may involve local elections.

Turning now to commercial advertising, the board correctly concluded, and the majority concede {ante, p. 57), that a “long line of decisions has established the rule that commercial messages do not come within the orbit of the First Amendment and may be regulated or prohibited by the government in the same manner as other business affairs. ’ ’

It must follow then, as to the use of bus advertising spaces for commercial purposes, the board has in no way transgressed upon First Amendment rights.

There is another compelling reason why this judgment should be reversed. The majority parade a list of horrible examples which they say existing board policies might permit to occur ■ e.g., a company may advertise its brand of cigarettes (commercial advertising) but a cancer society may not caution that cigarette smoking is injurious to health (noncommercial, since it does not relate to the sale of goods or services). But, since the majority concede that commercial advertising does not involve First Amendment rights, how does that problem concern us ? Secondly, we should recall that since commercial advertising is not protected and ads of particular classes of products need not be accepted, there is nothing to stop the board from prohibiting all such ads, including those for the sale of cigarettes, liquor, unclean films, pornographic books, air pollutants, etc. This transit board as an elected body is responsive to the will of the electorate. Its members are even subject to recall and its legislative ordinances to the initiative and referendum. Consequently, should any of the parade of horribles come to pass I believe we may rely on the elective board to act, or absent their acting then upon the district eleeíoraés,

*65 Furthermore, transit districts and their facilities are not public parks, schools, streets or meeting halls. Instead, such districts are established to meet the basic transportation needs of a community; to provide a rapid and inexpensive method of moving people en masse from point to point in a local area; and to relieve local traffic congestion with its attendant time-consuming delays and hazards to life and limb. To meet these needs the voters of the district elect a board of directors, which the Legislature has charged with the responsibility of operating the transit system. (Pub. Util. Code, §§24883-24885.) 1 This board must attempt to provide service which is not only rapid, efficient, comfortable, attractive and convenient, but also at rates low enough to induce mass use of the facilities by the public.

The board must exercise business and managerial judgment in carrying out its responsibilities. The decision to augment revenues by selling advertising space on the district’s buses is such an exercise of managerial judgment. Likewise is the decision with respect to the hinds of advertising matter that will be accepted.

These are strictly policy determinations lodged by the Legislature exclusively within the purview of the board of directors. The board’s decisions as to advertising in the buses avoids even the appearance of espousing controversial ideas which might antagonize or alienate customers or lead to altercations on the buses themselves. 2 We can take judicial notice that buses, busdrivers and patrons are not infrequently victimized during periods of disorder and strife. Certainly buses are vulnerable, and prudence and public safety require that passengers be protected from being drawn into areas of public controversy.

Plainly, such policy determinations are in no sense arbi *66 trary or capricious nor do .they constitute an abuse of the discretion and judgment lodged by law in these elected public officials. Accordingly, they are entitled to the support of the courts.

Nor has the board’s policy here under attack been shown to be unreasonable or to result in unconstitutional discriminations. Compelling the district to void its contract and to open up its limited advertising spaces to the uncertainties, vagaries and risks of serving as a “forum for the expression of ideas,” or in the alternative to ban advertising entirely, may well frustrate the board’s attempts to generate the highest advertising revenues commensurate with sound business judgment and with its statutory duty to render transit service at lower cost to the public.

I would reverse the judgment granting the preliminary injunction.

McCoinb, J., and Schauer, J., * concurred.

The petition of appellant district for a rehearing was denied Januarjr 17, 1968. Schauer, J., * sat in place of Tobriner, J., who did not participate therein. McComb, J., Burke, J., and Schauer, J., * were of the opinion that the petition should be granted.

Section 24883; ‘ ‘ The hoard is the legislative hody of the district and determines all questions of policy.”

Section 24884: “All matters and things necessary for the proper administration of the affairs of the district which are not provided for in this division shall he provided for hy the hoard.”

Section 24885: ‘ ‘ The board shall supervise and regulate every transit facility owned and operated hy the district, including the fixing of rates, rentals, charges, and classifications, and the making and enforcement of rules, regulations, contracts, practices, and schedules, for or in connection with any transit facility owned or controlled hy the district.”

That this policy of limiting the use of advertising space is not unique to the present defendant transit district, see Kissinger v. New York City Transit Authority (1967) 274 F.Supp. 438 .

Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.