380
Opinion of the Court
set forth in the petition for certiorari 1—which explicitly presents neither the "Government entity" theory nor the "closely connected to Government" theory of First Amendment application, but rather the facts that would support both. The argument in the petition, moreover, though couched in terms of a different but closely related theory, fairly embraced the argument that Lebron now advances. See Pet. for Cert. 16-18.
The dissent contends that the "Government entity" question in the present case occupies the same status, insofar as Rule 14.1(a) is concerned, as the "physical taking" question which we deemed excluded in Yee v. Escondido, supra. It gives two reasons for that equivalence: First, the fact that Lebron prefaced his question presented by the phrase, "Whether the court of appeals erred in holding." App. to Pet. for Cert. i. The dissent asserts that this is similar to the preface in Yee, which had the effect of limiting the question to the precise ground relied upon by the Court of Appeal. Post, at 402. But the preface in Yee was not at all similar. What we said caused the question presented to be limited to the physical-taking issue was not the fact that that was the only ground addressed by the lower-court-said-tobe-in-error; but rather the fact that that was the only ground of decision in two previous Court of Appeals cases, departure
1 Certiorari was sought and granted in this case on the following question: "Whether the court of appeals erred in holding that Amtrak's asserted policy barring the display of political advertising messages in Pennsylvania Station, New York, was not state action, where:
"(a) the United States created Amtrak, endowed it with governmental powers, owns all its voting stock, and appoints all members of its Board;
"(b) the United States-appointed Board approved the advertising policy challenged here;
"(c) the United States keeps Amtrak afloat every year by subsidizing its losses; and
"(d) Pennsylvania Station was purchased for Amtrak by the United States and is shared with several other governmental entities."
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