Section 124 of the traffic regulations of NYC says that no one can operate an advertising vehicle that advertises a business other than its own.
D operates a delivery business and uses over 1900 trucks in NYC.
D leases out advertising on the sides of its trucks.
D argued that Section 124 was unconstitutional under the Equal Protection Clause because there was not a reasonable relationship between the law and the ends to be achieved.
Specifically, they argued that the law was underinclusive. There were tons of other distractions in NYC, why target advertising on trucks?
Trial court convicted and fined D as violating Section 124.
SCOTUS affirmed, Section 12 4 constitutional.
Is Section 124 unconstitutional discrimination under the Equal Protection Clause?
Section 124 is not unconstitutional discrimination under the Equal Protection Clause even though it might be extremely underinclusive.
The local authorities may have concluded that those who advertised their own wares on their trucks do not present the same traffic problem in view of the nature or extent of the advertising which they use.
No way for the Court to know, would require omniscience.
The fact that NYC sees fit to eliminate this kind of distraction but does not touch greater ones in a different category is immaterial.
It is not requirement of equal protection that all evils of the same genus be eradicated or none at all.
The Court should use Equal Protection more often and Due Process less often when dealing with situations like this.
Using Due Process means the entire area of conduct ungovernable even though many may find the conduct objectionable.
Using Equal Protection does not do this; it merely means that the prohibition or regulation must have a broader impact to be constitutional.
The burden rests heavily upon anyone who wants the Court to use the due process clause to strike down laws/ordinances.
Cities, states, and the Federal Gov't must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation.
There is more likely to be arbitrariness in the regulation of the few than of the many.