The Supreme Court decision in Public Utilities Commission v. Pollak, 343 U.S. 451 (1952) determined that the individual liberty interests of passengers who used public transportation, including freedoms of speech and privacy guaranteed by the First and Fifth Amendments, were not unreasonably inhibited by the broadcast of radio programs and commercials on government-regulated vehicles used for mass transit in the District of Columbia. This case has been cited more than 1,000 times by courts and scholars as much for its dissenting opinion as for the majority opinion.
Passengers objected to radio transmitters on public transportation
The District of Columbia’s Public Utilities Commission (PUC) had decided to allow local streetcars and buses to be equipped with privately owned radio transmitters that would broadcast music, news, and commercials. The PUC undertook a thorough analysis after a public hearing and investigation and found the broadcasts to be reasonable.
Franklin S. Pollak, a passenger of Capital Transit Company, objected to the radio broadcasts. He and another passenger appealed an adverse decision by the PUC to a federal district court, which rejected their claims. Pollak then appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which reversed. The appeals court wrote, “Transit’s broadcasts deprive objecting passengers of liberty without due process of law.” The commission then appealed to the Supreme Court.
Supreme Court said the radio broadcasts were constitutional
In a carefully written opinion on behalf of a 6-2 majority, Justice Harold H. Burton reversed the federal appeals court’s decision. For the majority, this case was more about deference to an administrative agency that constitutionally discharged its responsibilities. For the dissenting justices, the case was an abridgement of liberty and privacy.
Although the Court agreed that the PUC order constituted government action, it ultimately deferred to the PUC decision that approved the installation of radio receivers and transmission of such messages as “consistent with public convenience, comfort and safety” and as an improvement of the quality of the transportation service. The majority also found that all who use public vehicles implicitly give up some modicum of individual liberty and may be subjected to unwanted speech. In this case, the regulation was neither arbitrary nor capricious and the limitation on individual liberty was reasonable.
Dissenters thought broadcasts could be propaganda, interfered with right to be left alone
Among the issues for dissenting Justice William O. Douglas was that the company affixing the radio receivers in the streetcars was a private company selling music through announcements and commercials. This subjected passengers to the possibility of propaganda — something they were forced to hear because they chose to use public transportation. Such a result disquieted those who availed themselves of mass transit but did not want to be subject to anything other than their own thoughts or the conversation of fellow passengers. This, Justice Douglas wrote, interfered with the “constitutional right to be let alone,” which he defined as the beginning of liberty. (Justice Felix Frankfurter recused himself from the decision because he was so personally offended by the practice of piped radio on public transportation that he felt unable to be impartial in the matter.)
Although Justice Douglas acknowledged that it is axiomatic that one’s privacy is necessarily reduced when one enters public places, he also cast the issue as portending doom for individual liberties, theorizing that the radio programs would lead to the “destruction of the Republic.” Similar contemporary concerns are being raised about regulations by the Federal Aviation Administration concerning the use of cellular telephones on airplanes during flight.
This article is originally published in 2009. Cleveland Ferguson III, J.D., D.H.L. is Senior Vice President and Chief Administrative Officer for the Jacksonville Transportation Authority