stating the Supreme Court “has never held that all injunctions are impermissible” and noting that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment"
How later courts described this case
- stating the Supreme Court “has never held that all injunctions are impermissible” and noting that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment"
- holding that discriminatory advertisements are illegal commercial speech entitled to no First Amendment protection
- holding that speech involving a “proposal of possible employment” is commercial speech
- holding that ordinance making it unlawful to “aid” sexually discriminatory employment practices could be constitutionally applied to bar newspaper advertisements for sex-designated employment
Written by the judges who cited it.
The opinion
Mr. Justice Douglas,
dissenting.
While I join the dissent of Mr. Justice Stewart, I add a few words. As he says, the press, like any other business, can be regulated on business and economic matters. Our leading case on that score is Associated Press v. United States, 326 U. S. 1 , which holds that a news-gathering agency may be made accountable for violations of the antitrust laws. By like token, a newspaper, periodical, or TV or radio broadcaster may be subjected to labor relations laws. And that regulation could constitutionally extend to the imposition of penalties or other sanctions if any unit of the press violated laws that barred discrimination in employment based on race or religion or sex.
Pennsylvania has a regulatory regime designed to eliminate discrimination in employment based on sex; and the commission in charge of that program issues cease- and-desist orders against violators. There is no doubt that Pittsburgh Press would have no constitutional defense against such a cease-and-desist order issued against it for discriminatory employment practices.
But I believe that Pittsburgh Press by reason of the First Amendment may publish what it pleases about any law without censorship or restraint by Government. The First Amendment does not require the press to reflect any ideological or political creed reflecting the dominant philosophy, whether transient or fixed. It may use its pages and facilities to denounce a law and urge its repeal or, at the other extreme, denounce those who do not respect its letter and spirit.
Commercial matter, as distinguished from news, was *398 held in Valentine v. Chrestensen, 316 U. S. 52 , not to be subject to First Amendment protection. My views on that issue have changed since 1942, the year Valentine was decided. As I have stated on earlier occasions, I believe that commercial materials also have First Amendment protection. If Empire Industries Ltd., doing business in Pennsylvania, wanted to run full-page advertisements denouncing or criticizing this Pennsylvania law, I see no way in which Pittsburgh Press could be censored or punished for running the ad, any more than a person could be punished for uttering the contents of the ad in a public address in Independence Hall. The pros and cons of legislative enactments are clearly discussion or dialogue that is highly honored in our First Amendment traditions.
The want ads which gave rise to the present litigation express the preference of one employer for the kind of help he needs. If he carried through to hiring and firing employees on the basis of those preferences, the state commission might issue a remedial order against him, if discrimination in employment was shown. Yet he could denounce that action with impunity and Pittsburgh Press could publish his denunciation or write an editorial taking his side also with impunity.
Where there is a valid law, the Government can enforce it. But there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or customers who express their ideas in letters to the editor or in want ads or other commercial space. There comes a time, of course, when speech and action are so closely brigaded that they are really one. Falsely shouting “fire” in a theater, the example given by Mr. Justice Holmes, Schenck v. United States, 249 U. S. 47, 52 , is one example. Giboney v. Empire Storage Co., 336 U. S. 490 , written by Mr. Justice Black, is another. There are here, however, no such unusual circumstances.
*399 As Mb. Justice Stewart says, we have witnessed a growing tendency to cut down the literal requirements of First Amendment freedoms so that those in power can squelch someone out of step. Historically, the miscreant has usually been an unpopular minority. Today it is a newspaper that does not bow to the spreading bureaucracy that promises to engulf us. It may be that we have become so stereotyped as to have earned, that fate. But the First Amendment presupposes free-wheeling, independent people whose vagaries include ideas spread across the entire spectrum of thoughts and beliefs. * I would let any expression in that broad spectrum flourish, unrestrained by Government, unless it was an integral part of action — the only point which in the Jeffersonian philosophy marks the permissible point of governmental intrusion.
I therefore dissent from affirmance of this judgment.
As Alexander Meiklejohn has stated: “The First Amendment was not written primarily for the protection of those intellectual aristocrats who pursue knowledge solely for the fun of the game, whose search for truth expresses nothing more than a private intellectual curiosity or an equally private delight and pride in mental achievement. It was written to clear the way for thinking which serves the general welfare. It offers defense to men who plan and advocate and incite toward corporate action for the common good. On behalf of such men it tells us that every plan of action must have a hearing, every relevant idea of fact or value must have full consideration, whatever may be the dangers which that activity involves. It makes no difference whether a man is advocating conscription or opposing it, speaking in favor of a war or against it, defending democracy or attacking it, planning a communist reconstruction of our economy or criticising it. So long as his active words are those of participation in public discussion and public decision of matters of public policy, the freedom of those words may not be abridged. That freedom is the basic postulate of a society which is governed by the votes of its citizens.” Free Speech and Its Relation to Self-Government 45-46 (1948).