No religious advertisements on municipal buses

Douglas Laycock dlaycock at
Mon Dec 20 12:12:56 PST 2010

I assume Fort Worth was relying on Lehman v. Shaker Heights (1974), which held that a bus system can accept commercial advertising and exclude all political advertising.

Lehman assumed that a commercial/political line did not involve viewpoint discrimination. Alan is of course right that Rosenberger, Good News Club, and similar cases say that a religious/secular line is viewpoint discrimination, and therefore cast doubt on whether Fort Worth's reliance on Lehman is justified or even reasonable. But one can imagine distinguishing advertising slogans that will fit on a placard or the side of a bus from the serious discussions at issue in Rosenberger and Good News. 

On Mon, 20 Dec 2010 11:35:03 -0800
 "Brownstein, Alan" <aebrownstein at> wrote:
>I saw a newspaper story a few days ago (I'm sorry, but I don't recall all the details) reporting that a city prohibited all religious advertising on buses because people were annoyed with advertisements expressing a message by Atheists suggesting that there is no G-d. Wouldn't that regulation constitute unconstitutional viewpoint discrimination under Rosenberger and Good News Club? I have serious problems with some of the Court's decisions that characterize discrimination against religious expressive activities as viewpoint discrimination. But if that's the rule, it would certainly seem to apply in this case as well. 
>Alan Brownstein
>UC Davis School of Law
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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
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Charlottesville, VA  22903

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