dissenting. This case of first impression in Ohio revolves on the issue of whether a municipality, an arm of state government, is constitutionally prohibited from forbidding paid political1 advertisements from appearing at any time in a place which that same arm of state government has deemed to be proper for the display of paid commercial advertisements. I feel that such conduct is constitutionally prohibited'.
It should be noted that the issue herein is not whether a municipality must permit advertising of any nature on its rapid transit system. That issue is avoided since Shaker Heights has deemed it proper to encourage the display of paid commercial advertisements on its transit system.
Article 152 of the contract between Shaker Heights and Metromedia prohibits Metromedia from accepting political advertisements for display on Shaker’s transit system. Such *150a contract, by an Ohio municipality, constitutes state action.3 subject to the prohibition of Section 11, Article I of the Ohio Constitution. Peltz v. South Euclid (1967), 11 Ohio St. 2d 128. Such state action also invokes the protection of the First and' Fourteenth Amendments to the United States Constitution. Peltz, supra; Gitlow v. New York (1925), 268 U. S. 652.
. Appellant argues that such state action (1) denies him equal protection of the laws, and (2) deprives him of freedom of speech and the press. Before discussing either, I wish to examine the nature of the denial imposed upon appellant.
The use of posters and signs as a method of disseminating information has gained widespread usage throughout this country and this method is widely used for political, commercial, charitable and civic purposes. When accomplished for purely commercial reasons, such method of expression does not constitute speech within the protection of the First Amendment. Valentine v. Chrestensen (1942), 316 U. S. 52; Breard v. Alexandria (1951), 341 U. S. 622; Peltz, supra.
However, where such method of expression is used for political purposes, it constitutes a vehicle for communication of information and opinion which is not only concurrent with the historic connotation of First Amendment rights, as defined in Lovell v. Griffin (1938), 303 U. S. 444, but is also concurrent with the concept of assurance of freedom upon which our form of government rests, and the First Amendment protection is neither lessened by the fact that the political message is proposed as a paid advertisement (New York Times Co. v. Sullivan [1964], 376 U. S. 254, 266), nor that alternative methods of dissemination exist. (Schneider v. State [1939], 308 U. S. 147, 163.) Accordingly, it is not only in the best interest of government *151that these methods of communication be encouraged, but it is mandated by our Constitution.
This- is not to say that a municipality may not absolutely prohibit the display of advertisements on its rapid transit system or other property under the control of the city. Notwithstanding the free-speech forum which historically exists on public sidewalks and parks, rapid transit systems do not inherently constitute such a forum. Further, the mere creation of a display arena for paid advertisements does not imply that the municipality has waived its right to appropriately regulate advertisements as to time, place, and manner of dissemination. However, such regulations must be in support of an appropriate governmental interest.
There exists, then, a situation in which a municipality has decided to permit paid commercial advertisements in a locale in which it entirely prohibits the display of paid political advertisements. For that reason, I choose to analyze this case in terms of the equal protection clause of the Fourteenth Amendment.
Although I do not feel compelled to resolve the First Amendment issue, I do feel that that issue cannot be resolved without considering the effect that the allowance of the display of public service advertisements would have on the question of whether a free-speech forum has been created. Such advertisements do not constitute pure commercial communication, and therefore merit consideration on the issue of creation of a free-speech forum.
A fundamental element of the equal protection argument is a determination of whether there is an appropriate governmental interest suitably furthered by the differential treatment afforded these two classes of paid advertisements. See Chicago v. Mosley (1972), 408 U. S. 92; Reed v. Reed (1971), 404 U. S. 71; Dunn v. Blumstein (1972), 405 U. S. 330.
Public facilities have a primary public function or purpose to serve, and the assurance by the municipality of the accomplishment of this function or purpose is properly *152left to the discretion of that body. Public schools constitute such a facility, having as a primary purpose the education of our children, and while it may not be mandatory that a school auditorium be made available as a forum for the expression of First Amendment ideas, it is certain that it cannot arbitrarily be made available as a forum for the expression of some of these ideas to the exclusion of others.
School auditoriums, however, are seldom used: as an arena solely for the dissemination of purely commercial expressions. Consequently, cases involving school auditoriums, public parks, etc., generally involve questions of freedom of speech, necessitating the application of the “clear and present danger” test. See Terminiello v. Chicago (1949), 337 U. S. 1; Thomas v. Collins (1945), 323 U. S. 516. Free-speech forums can also be created in regard to other public facilities, including rapid transit systems, for in Wirta v. Alameda-Contra Costa Transit Dist. (1967), 64 Cal. Rep. 430, 434 P. 2d 982, in addition to allowing paid commercial advertisements to be displayed on the transit system, paid political advertisements were authorized at prescribed times. Thus, a forum for the expression of First Amendment views had been created, and, as that court held, other advertisements expressing opinions and beliefs within the ambit of First Amendment protection could not then be prohibited for reasons of administrative convenience. See, also, Kissinger v. New York City Transit Authority (S. D. N. Y. 1967), 274 F. Supp. 438.
For additional cases on this and related issues, see Business Executives’ Move For Vietnam Peace v. Federal Communications Comm. (C. A. D. C. 1971), 450 F. 2d 642; Danskin v. San Diego Unified School Dist. (1946), 28 Cal. 2d 536, 171 P. 2d 885; Hillside Community Church v. Tacoma (Wash. 1969), 455 P. 2d 350; Lee v. Bd. of Regents of State Colleges (W. D. Wis. 1969), 306 F. Supp. 1097; Zucker v. Panitz (S. D. N. Y. 1969), 299 F. Supp. 102; Radical Lawyers Caucus v. Pool (W. D. Tex. 1970), 324 F. Supp. 268; Ross v. Goshi (D. C. Hawaii 1972), No. 72-3610, decided December 8, 1972.
*153In any event, it is beyond dispute that appellees have created an arena for the display of paid advertising. (Wirta, supra.) In deciding to create such an arena, the city examined the deterimental effects which such displays might have on the primary purpose of transporting people, apparently finding that the primary function could be accomplished while gaining the pecuniary advantage of providing space for the display of paid commercial advertisements.
I do not discount the possibility that under some circumstances the differing nature of political and commercial advertising might justify permitting one to the exclusion of the other. However, I find no such circumstances herein.
This method of disseminating beliefs and opinions is not dependent upon the nature of the subject matter being dispersed, and any legitimate objections which a municipality might have toward the time, place, and manner of dissemination would be the same, whether the nature of the advertisement be commercial, political, or public service. Each advertisement could reasonably be regulated as to such things as size, obtrusiveness, and the time period over which each advertisement may be displayed. Indeed, the policy followed by Metromedia in regard to other transit systems4 provides such control now.
*154It follows that, to the extent the city has allowed those disadvantages of commercial advertising which are identical to disadvantages of political advertising, it is estop-ped from voicing snch disadvantages in snpport of its absolute prohibition of political advertising.
However, appellees contend that the display of paid political advertisements on the city’s transit system presents additional unique disadvantages, such as: (1) They might be interpreted as an endorsement by the city of a particular person or idea; (2) there exists a reasonable chance for abuse, the possibility of discrimination or favoritism; (3) the risk of violating the passengers’ rights; and (4) the controversial nature of political advertisements.
That the first of these evils can be negated by requiring a statement of nonendorsement on the face of the advertisement is beyond question. Even in the absence of such a disclaimer, it is doubtful that a political advertise*155ment, as is here contemplated, would be interpreted as an endorsement by the city of a particular candidate or of one side of a particular issue any more than the display of a particular commercial advertisement -would be thought of as an endorsement by the city of a particular commercial product.
The conjectured possibility that favoritism might be shown to one party over the other is likewise no justification for this absolute discrimination against paid political advertisements. There being no evidence in the record supporting this contention, I feel that the presumption must be made that those responsible would fulfill their duties in a fair manner. Further, so long as the potential space is made equally available to all who seek it (whether taken advantage of or not, see Wirt a, supra), there is little chance that only one of the parties would be permitted to utilize the space. This further negates the possible presumption of endorsement, since all sides of an issue could be advertised.
As to the risk of violating passengers* rights, I acknowledge that to some extent rapid transit passengers constitute a captive audience. As indicated in the majority opinion, magazines and newspapers must be sought out by a reader and radios can be turned off, while advertisements of the sort involved herein * * are constantly before the eyes of observers * * Packer Corp. v. Utah (1932), 285 U. S. 105, 110. However, this does not mean that the right of a passenger on a transit system to privacy is not subject to reasonable limitations in relation to the rights of others, for, as stated in Public Utilities Comm. of D. C. v. Pollak (1952), 343 U. S. 451, 464, “* * * however complete his [a passenger’s] right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance.” That case held that a transit system could broadcast a radio program within its vehicles, despite the fact that individual passengers could not shut the broadcast off:.
*156The lack of choice of the passengers involved in Pol-iak, supra, is far greater than that involved herein, for these passengers are not compelled to read or even to look at the advertisements. Farther, it could not be any less violative of a passenger’s rights to “confront” him with commercial advertisements than to “confront” him with political ones.
Finally, I find no evidence to support appellees’ contention that either the political advertisement submitted by appellant, or paid political advertisements in general, are of such a controversial nature as to create a potential danger to passengers. Indeed, it is in the interest of better government that some controversy over political issues be created.
It is my conclusion that where a municipality has created an arena for the display of paid advertisements by providing facilities for such paid advertisements on its rapid transit system, it cannot, in the absence of an appropriate governmental interest, discriminate against paid political advertisements in favor of paid commercial advertisements.
Having determined that the refusal to accept appellant’s political advertisement for display constitutes a denial of equal protection contrary to the Fourteenth Amendment, I see no need to further examine the issue of whether a First Amendment forum is created when, by state action, an area of public property is made available for the expression of ideas and beliefs, most of which are not protected by the First Amendment.
I would reverse the judgment of the Court of Appeals.
O’Neill, C. J., and W. Shown, J., concur in the foregoing dissenting opinion.“15. All advertising matter at any time inserted or placed by the contractor in or upon any of said cars shall be subject to approval by Shaker Heights and shall be of reputable character, and if any immoral, vulgar, disreputable or libelous advertisements are so placed or inserted at any time during the term of this agreement, the contractor will remove the same promptly upon request of Shaker Heights, and if the contractor shall fail to do so, the employees of Shaker Heights may forthwith remove the same. The contractor shall not place political advertising in or upon any of the said cars or in, upon or about any other additional and further space granted hereunder,”
I am not concerned herein with conduct by a private citizen or by a private organization. This contract is the direct result of action by a municipal corporation which has been established as an instrumentality of state government.
T note, for reference purposes only, appellee Shaker Heights’ exhibit A, which sets forth the Metro Transit Advertising Copy Policy as follows:
“(1) Metro Transit Advertising will not display advertising copy that is false, misleading, deceptive and/or offensive to the moral standards of the community, or contrary to good taste. Copy which might be contrary to the best interests of the transit systems, or which might result in public criticism of the advertising industry and/or transit advertising will not be acceptable.
“(2) Metro Transit Advertising will not accept any political copy that pictorially, graphically or otherwise states or suggests that proponents or opponents of the persons or measures advertised are vulgar, greedy, immoral, monopolistic, illegal or unfair.
“(3) All copy subject to approval. Rough sketches with proposed copy required on all political advertising.
*154“(4) Metro Transit Advertising reserves the right at all times to decline both sides of any proposition and/or opposing candidates.
“(5) Political advertising must carry, visible within the advertising area of the poster, the tag-line:
“ ‘Paid Political Advertising Sponsored by . . .’ in letters sized as follows:
“Exterior: 30” x 144” King size posters - 1”
21” x 44” Traveling displays - Vz”
21” x 72” Taillight spectacular - 1”
“Interior: 11” x 28” - %” 11” x 56” - %”
“(6) Contracts for political advertising space must be accompanied by check for entire amount of contract.
“(7) Posters and/or cards must be delivered, prepaid, 10 days prior to posting date.
“(8) Equal opportunity to purchase space will be offered and allotted for each opposing candidate, bond issue or referendum. If necessary, contracts for political advertising will be held until 30 days prior to the contract posting date, at which time Metro Transit Advertising will allocate the advertising space to each candidate, issue or referendum.
“(9) Minimum order acceptable for either cards or posters is at the one-[month rate].
“(10) Political advertising will not be accepted on folio-wing systems: Shaker Rapid — Maple Heights — North Olmsted — Euclid, Ohio.”