RAILWAY EXPRESS AGENCY V.

NEW YORK
336 U.S. 106, 69 S.CT. 463, 93 L.ED. 533 (1949).

Procedural History/Facts
 NY law says no person shall advertise on any vehicle, except that businesses can advertise
own products/services on own vehicles.
 Railway (π) has nationwide express business & sells space on side fo trucks to others for
advertising.

Issue
Whether a statute violates EP if it punishes people who sell advertising space on side of vehicle
but x punish businesses for using same space for advertising their own business.

Holding
A statute that regulates economic activity will survive an equal protection challenge if there is a
rational relation between the challenged classification and the purpose of the statute.

Reasoning
 NY law treats unequally advertisements of products sold by owner of truck & general ads.
 π argues: this unequal treatment x justified by purposes of regulation, since ad on side of
truck is equally likely to cause distraction to pedestrians.
o Reasoning is superficial.
 X contradict state legislatures & x say this violates EP.
 Classification is related to purpose for which statute is made.
 Even if distracting ads somewhere else, EP x require that all evils of the same be eradicated
or none at all.

Concurrence/Dissent
 Jackson’s Concurrence –
o Court too easily sustains DP attacks and too easily rejects EP attacks. Since a statute
that is invalidated on DP grounds leaves ungoverned and ungovernable conduct which
many people find objectionable, a DP attack should create a heavy burden on the
party who would have us strike down a law or ordinance. EP, on the other hand, x
disable the government from dealing with the subject at hand—it merely means that
the law must have a broader impact.
o Governments should not act to discriminate between its inhabitants except upon some
reasonable distinction fairly related to the object of regulation. The most effective
guarantee against arbitrary and unreasonable government is to force officials to impose
laws generally, rather than only upon a minority. If officials are allowed to enact laws
that affect only the few, and thus escape the political retribution that might accompany
enacting the same laws generally, arbitrary action will almost certainly follow. The
present case illustrates my point. A regulation prohibiting all advertisement on the side
of all vehicles in New York City (including those of the great metropolitan newspapers)
would conflict with many interests and cause a great outcry. It would require much
 clearer justification than to restrict advertising by only a few merchants. We are much
more likely to find arbitrariness in the regulation of the few than of the many. Here
there is not even the pretense that the forbidden advertising is any more distracting than
that which is allowed. I do not think differences of treatment under the law should be
approved because of differences unrelated to the legislative purpose. I believe that the
real question here is whether the paid advertiser and advertiser of his own products are
of one class and must be treated equally, or whether they are of two classes and
therefore may be treated differently. I think that paid advertisers may be placed in a
class of their own. There is a real difference between doing in self interest and doing
for hire. It is not difficult to see that the rental of truck space could easily become an
obnoxious enterprise. Cities have the right to require that their streets and public places
be used in a quiet and orderly fashion and that they be used only for their proper
purposes.

The statute challenged here is under-inclusive. That is, it prohibits some people, but not everyone,
from doing some activity. In this case, the activity is advertising on the side of a truck. The city
ordinance prohibited for-hire advertising, but allowed self-advertising (the truck owner advertising
his own business). The majority says that the classification should stand as long as the Court can
think of any rational reason for the classification. And the classification does not have to be tightly
tailored to the purpose of the statute. Considerable over- and under-inclusiveness is tolerated. The
rule is often called “rationality review.” If the Court is really applying this rule to a classification,
then it is pretty much guaranteed that the classification will stand. After all, the Court does not
have to use the actual or probable reason for which the legislature promulgated the rule. Any reason
that the Court hypothesizes, or that the defendant’s lawyers can think of to justify the classification,
will be enough. Thus, it is said that rational review has no “bite.”