Housing Opportunities Made Equal, Inc. v. The Cincinnati Enquirer, Inc., a Division of Gannett Co., Inc.

KEITH, Circuit Judge,

dissenting.

The majority opinion is a distressing evisceration of a remedial statute. The majority pays lip service to the salutary goal of fair housing. It reaches a result, however, which is at odds with the law and its legislative purpose of achieving fair housing opportunity. It is clear to me that the district court erred when it dismissed plaintiff’s advertising discrimination complaint against the Cincinnati Enquirer (“Enquirer ”).

The majority parses the complaint into two separate theories and then attacks each. First, the majority states that, as a matter of law, a single advertisement cannot violate the Fair Housing Act (the “Act”) for the reason that it exclusively uses white models unless the number of models is “large” and more than “select.” Majority opinion at 648 n. 3 and 4, 653. Second, the majority concludes that even an aggregation of advertisements using only white models cannot constitute a violation of the Act by a publisher if the advertisements are from different advertisers. 1

*655 I disagree. While perhaps not all advertisements in which all of the models are white would violate the Act, it is a factual issue whether some of the advertisements violate the Act. Further, I interpret the Act, which extends its prohibition of discriminatory use of models not just to the advertiser, but to the publisher, to similarly extend liability to the publisher for an indication of racial preference which is apparent only when looking at an aggregation of advertisements. Accordingly, I respectfully DISSENT.

I.

There has been no trial in this case. The only issue is whether plaintiff should have an opportunity to present its case. Plaintiffs have broad latitude in filing a complaint. The court must accept as true all factual allegations in the complaint. The motion must be denied unless plaintiff “undoubtedly can prove no set of facts in support of [its] claims that would entitle [it] to relief.” Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) (citations omitted), cert. denied, — U.S. -, 111 S.Ct. 182 , 112 L.Ed.2d 145 (1990).

The majority distorts HOME’S claim and ignores the proper legal standards for a Fed.R.Civ.P. 12(b)(6) motion in order to dismiss and thereby reaches a ludicrous result. In the majority’s attack of HOME’S first argument, it states that the exclusive use of white models could be a factor in determining whether an advertisement violates the Act, but finds that the exclusive use of white models alone cannot state a claim under the Act. The majority argues that there is a fixed number, so far only defined as large and more than select, at which it believes that an issue of fact arises from the exclusive use of white models. Majority opinion at 648 n. 3 and 4, 653. This interpretation completely ignores the text and purpose of the Act.

A.

The Act provides that “[i]t is the policy of the United States to provide ... for fair housing throughout the United States.” 42 U.S.C. § 3601 . The Act makes the following practices unlawful:

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604 (c).

Consistent with the Act’s remedial purposes, the Department of Housing and Urban Development (“HUD”) has promulgated regulations pursuant to the Act which address the issue of human models used in advertisements. See 24 C.F.R. §§ 109.25 -.30. The regulations state in part:

Human models in photographs, drawings, or other graphic techniques may not be used to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin. If models are used in display advertising campaigns, the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. Models, if used, should portray persons in an *656 equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status or national origin, and is not for the exclusive use of one such group.

24 C.F.R. § 109.30 (b).

As an example of advertising which may be discriminatory, the regulations state that “[s]uch selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preference for one sex or the other, or for adults to the exclusion of children.” 24 C.F.R. § 109.25 (c).

Moreover, HUD stated in its response to comments on 24 C.F.R. §§ 109.25 (c), 109.-30(b):

The term “reasonably representing” is inten[de]d to assure that models will convey a message of general inclusiveness of persons covered by Title VIII, not literal display of each minority group. For example, use of two white models, one male and one female[] would not convey such inclusiveness. In a small town with no minority groups other than blacks, however, use of two models of different sexes, one white and one black, would “reasonably represent” majority and minority groups of both sexes.

45 Fed.Reg. 57,105 (1980) (emphasis added).

B.

Plaintiffs complaint alleges that the use of human models personalizes the advertisement and encourages consumers to identify themselves in a positive way with the models and housing featured. It further states that human models often represent actual or potential purchasers or renters, or the type of potential purchasers or renters that the real estate owner has targeted as desirable occupants. Joint Appendix at 9 (Complaint para. 14). HOME asserts two claims. First, HOME alleges that the-Enquirer violated the Act by publishing advertisements that contained white models only. The complaint in paragraph nine alleges that in group photographs in the real estate section, the groups consist exclusively of white people. Joint Appendix at 7. Second, HOME alleges that the Enquirer violated the Act because it published advertisements that in aggregation produced a virtually all white advertising spread.

II.

With regard to the first claim, HOME does not claim that any advertisement in which all of the models are white is in violation. Rather HOME properly claims that it is an issue of fact whether a reasonable person, looking at some of the advertisements that HOME would undoubtedly present as proof at trial, would find that the exclusive use of whites in the particular advertisements indicates that whites are preferred tenants or purchasers. 2 HOME’S *657 claim satisfies the requirements of the Act. The majority is proclaiming a per se rule that such advertisements never could cause a reasonable person to feel excluded, unless some other factor, such as repetition by a particular advertiser, were added or the number of models is “large.”

A.

The crux of the dispute between the majority and dissent on this point is as follows. The dissent believes it is an issue for a fact finder whether an advertisement containing white models exclusively indicates a preference. At least it should be determined on summary judgment whether a reasonable fact finder could find a preference. The majority insists on a set minimum number of models that must be alleged in a complaint. The majority, however, fails to disclose the judicially mandated minimum number of models. Thus it appears that the majority wishes the plaintiff to refile the complaint specifying the number of models in the group photographs which contain white models only. On a subsequent appeal, the majority will decide whether it believes the alleged number is enough to allege a violation of the Act entitling plaintiff to an answer. If the majority believes there is a fixed number of models in an advertisement with white models only which is required as a minimum for a claim to be stated, it seems as a matter of judicial economy that the number should be stated. 3

All that the language of the Act requires is that the advertisement indicate a preference. HOME has alleged that advertisements in the Enquirer indicate a preference. It has substantiated that claim with further allegations that the Enquirer has printed advertisements with white models only and that some of these advertisements included group pictures. The majority says that this is still not enough even to make it a factual dispute whether or not the advertisements indicate a preference. With no basis in the statute, it insist that there must be a “large” number of models in order for any reasonable person to conclude that an advertisement that exclusively uses white models indicates a preference.

The complaint in the instant case alleges a long-standing pattern of publishing advertisements with white models only, including group photographs. The Second Circuit stated in Ragin, concerning a complaint nearly identical to that filed by HOME, 4 “[gjiven the ordinary reader test, it can hardly be said that these allegations are insufficient....” Ragin v. New York Times Co., 923 F.2d 995, 1001 (2d Cir.1991). The Second Circuit in Ragin held that “a trier plausibly may conclude that in some circumstances ads with models of a particular race and not others will be read by the ordinary reader as indicating a racial preference.” Id. at 1000 . I believe the law mandates the Sixth Circuit reach the same conclusion.

The majority quotes Ragin out of context from where the Ragin court stated that an advertisement featuring a couple of one race would seem insufficient as a matter of law for a claim under § 3604(c). *658 Majority at 648. The Ragin court found that the complaint in that case could not be dismissed based on allegations, like those in the instant case, of only one percent of black models over a twenty year period. The quote excerpted by the majority appears in the section of the Ragin opinion, after the court has concluded that the motion to dismiss must be denied, where the court provided guidance to the district court on how to evaluate the evidence admitted during the trial of the case. Ragin, 923 F.2d at 1001-02 . While I might disagree with how the Ragin court would evaluate the evidence under § 3604(c), we are in agreement that the issue presented in the instant case — whether pictures using exclusively white models would cause a reasonable black person to feel that people of another race are preferred clients — is a dispute to be determined on the evidence submitted, not on a motion to dismiss.

The Ragin court correctly notes that all that is required of plaintiff’s claim is that it is plausible. As the Second Circuit noted, “[ojrdinary readers may reasonably infer a racial message from advertisements that are more subtle than the hypothetical swastika or burning cross, and we read the word ‘preference’ to describe any ad that would discourage an ordinary reader of a particular race from answering it.” Ragin, 923 F.2d at 999-1000 . It is clear to me that a reasonable person could conclude that advertisements that picture white models only could lead a black person to conclude that whites are preferred clients.

The Second Circuit has recognized that the relevant question is whether a member of an excluded race would feel excluded. The test is not whether a member of the included race would feel excluded. Id. After all, the Act, by addressing advertisements as well as the actual sale and rental, targets self-selection by readers which occurs before the initial inquiry. Id.; Hunter, 459 F.2d at 214-15. This self-selection occurs when members of the excluded race do not even bother to apply for the property advertised because the advertisement implicitly communicates that the included race is preferred. I conclude that if advertisements with white models only were presented to a jury, the jury could reasonably find a preference.

In addition to presenting the advertisements for the jury to evaluate, plaintiff is also entitled to support its claim with expert testimony. Expert testimony might demonstrate the subconscious effects of advertisements with models. An expert might demonstrate that despite the absence of a conscious message, the subconscious message of such an advertisement is to indicate a preference. See Saunders v. General Servs. Corp., 659 F.Supp. 1042, 1058 (E.D.Va.1987). The majority made its factual finding without an opportunity to listen to this testimony. In substituting its judgment for the jury’s, it concludes that it would not receive a message of exclusion by looking at an exclusively white advertisement unless the number of models alleged was “large.”

Models used in print advertising are designed to send a message to the reader. See Saunders, 659 F.Supp. at 1058 . But even if the messages were unintended, and, therefore, purely accidental, the exclusive use of white models sends the subtle but distinct message of racial exclusion. “Blacks need not apply.” “Blacks are not welcome.”

The ability of exclusive advertising to transmit these messages of preference is so obvious as to require no citation of authority. Nevertheless, I note the Saunders court’s analysis in this area is particularly cogent. Judge Merhige described a housing brochure that had almost no black models. He discussed expert witness testimony regarding this issue as well as the defendant's rationalizations. Saunders, 659 F.Supp. at 1058-59 . In that case, Judge Merhige concluded that the “natural interpretation” of a rental housing brochure virtually devoid of black models was “to indicate that [the subject] apartment complexes are for white, and not Black tenants, thus discouraging Blacks from seeking housing there.” Id. at 1058 . The majority distinguishes the message sent by the exclusive use of white models when there are many models from the message sent when there is only a “select” number. *659 The majority has presented no authority for this distinction. This distinction assumes that blacks looking at advertisements that picture exclusively white models would not feel that another group is preferred unless the advertisement includes a large number of models. The majority certainly has not shown that the scientific community considers this assumption indisputable. I, therefore, conclude it is a factual issue.

B.

The regulations also demonstrate that exclusivity of models in an advertisement may indicate a racial preference, thus violating the Act. As an example of advertising which may be discriminatory, the regulations state that “[s]uch selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preference for one sex or the other, or for adults to the exclusion of children.” 24 C.F.R. § 109.25 (c) (emphasis added). Thus picturing one group and not another is one of the few prototypes of discrimination listed in the regulations. Admittedly § 109.25(c) says “may,” but that thereby indicates that it is ultimately a question of fact to be decided by the fact finder. While not conclusive, such depictions certainly raise a plausible question to be decided by a jury.

Additionally, HUD’s response to comments on the regulations makes it very clear that exclusivity of models in an advertisement may indicate a racial preference. Specifically, HUD concluded that an advertisement with two models, both white, would not convey inclusiveness, thus possibly indicating a preference. 45 Fed.Reg. 57,105 (1980) (quoted supra at 656). While the comment may be only a guideline and not a strict rule of liability, it is clear to me that HUD has determined that such advertisements at least raise a factual issue as to whether they indicate a preference. The majority has found HUD’s determination beyond the pale of the reasonable.

This case is here on a motion to dismiss. In that context, the argument made by the majority is absurd. This is not even a motion for summary judgment where the court would at least be determining which decisions a reasonable jury could make on the facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 , 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548, 2552 , 91 L.Ed.2d 265 (1986). Here the facts and inferences must be assumed in plaintiff’s favor. Meador, 902 F.2d at 475 . It is a question of fact whether a reasonable person of the excluded race would look at the advertisements and see a preference. Therefore a Rule 12(b)(6) dismissal is unquestionably improper. 5

The dispute over this claim revolves on the majority’s inability to see that people in the minority, when excluded, are likely to feel that others are preferred. The majority has recognized that if there is a large number of whites and no blacks then the blacks are perhaps conspicuously absent. It fails to recognize that even when the numbers are few, the minority viewer still sees an advertisement that features others, but excludes people like him or her.

Congress left liability under the Act to the decision of a reasonable fact finder. HUD determined that in fact a small number of models, if not reasonably representative, is suspect. Courts that have examined complaints alleging pictures of models without minorities have found these allega *660 tions were sufficient for a claim. The majority, however, refuses to recognize even the plausibility that members of a minority group, looking at an advertisement for housing with members from the majority and not members of the minority, might reasonably feel that the advertiser would prefer someone else. It is very disappointing that this Court insists on taking such a course.

III.

The majority also rejects HOME’S second claim, that the Enquirer violated the Act because the aggregate of real estate advertisements displayed by the Enquirer contains almost exclusively models who are white. The majority presents an unsupportable argument to achieve this result, relying on statutory language, the regulations adopted by the concerned agency (HUD), and the purpose of the Act. I find that all three of these considerations indicate that HOME has alleged a claim cognizable under the Act.

A.

Turning first to the statutory language, the Act declares it unlawful to publish “any notice, statement, or advertisement, with respect to the sale or rental of a dwelling” that indicates a racial preference. 42 U.S.C. § 3604 (c) (emphasis added). The majority wishes to read the prohibition of “any” “advertisement” to be limited to particular advertisements and therefore the Act does not prohibit advertisements which collectively create such an inference. Majority Opinion at 649-50. I find this a tortured construction that inappropriately limits the ordinary meaning of a prohibition of “any” advertisement. Just as “any” advertisement applies to someone who submits more than one advertisement that indicates a preference, it also applies to advertisements in the plural which create such a preference. The plural is incorporated in the “any” construction.

The majority concedes that multiple advertisements by one real estate operator could violate the Act. “To be sure, publishers remain liable for ... publication of a plurality of advertisements submitted by an advertiser that depict all-white models.” Majority Opinion at 653. This concession belies the distinction the majority tries to make to carve aggregation claims out of the Act. Once the majority concedes that the Act provides for liability of an advertiser that cannot be determined without looking at a collection of advertisements over a period of time, it has undermined the argument it tries to weave out of the statutory language. The majority wishes to draw a line where the statute clearly does not provide one. The majority finds it appropriate to look at several advertisements from the same advertiser to determine whether in total the collection of several sequential advertisements indicate a preference. Such an examination is looking at “particular” advertisements no more than if it looked at the several advertisements by different advertisers published on the same page to determine whether that collection of “particular” advertisements would indicate a preference. The different source of advertisements does not make those advertisements any less “particular.” 6

*661 Plaintiff has certainly pointed to particular advertisements. It has pointed to the advertisements published in the real estate section of the Enquirer over a period of years. These are advertisements that may be presented to the jury. The fact that they are numerous does not make them any less particular. They can be individually designated. Certainly the prohibition on “any” advertisement cannot be read to put an upper limit on the number of advertisements that may be introduced to demonstrate discrimination.

B.

The majority’s analysis of the relevant regulations, 24 C.F.R. §§ 109.25 , 109.30, similarly attempts to distinguish HOME’S claim on the ground that the regulations refer to “advertising campaigns.” The majority targets the word “campaign.” It finds in this word a requirement for reference to a particular set of advertisements referring to a particular set of property. It then contends that an advertising campaign, so defined, is the exclusive means by which more than one advertisement can constitute a violation of the Act. First, as noted above in section III-A, HOME has pointed to specific advertisements which in turn feature particular properties, numerous though the advertisements may be. Second, § 109.30(b) dictates that “[hjuman models in photographs ... may not be used to indicate exclusiveness because of race_” 24 C.F.R. § 109.30 (b). This is a broad prohibition not restricted to particular advertising campaigns and is the topic sentence of the subsection. The subsection continues that in advertising campaigns the use of models should be representative of the metropolitan area. Id. There is nothing in the regulations that indicates that it is in fact permissible to use pictures to indicate exclusiveness as long as it is not used in a “campaign.” Yet that is the construction the majority urges.

In trying to carve out an exemption in the statute for the violations alleged against the Enquirer, the majority desperately grasps at the regulations to create a requirement that the discriminatory message be focused on a particular property. The majority defines “advertising campaign” to be limited to several advertisements concerning the same property presented by the same advertiser. The regulations simply do not support the existence of the majority’s judicially crafted requirement. The regulations state a broad prohibition against the use of models to indicate exclusiveness. If the models indicate exclusiveness, the advertisement is prohibited. This prohibition is not limited to only those indications of exclusiveness that are connected to a particular advertisement or particular piece of real estate. 7

C.

Once it is conceded, as logic, language, regulations and purpose dictate, that a ser *662 ies of advertisements can collectively indicate discrimination, then liability must also apply to publishers of the collective message of advertisements. This is clear from the structure of the Act which provides for liability of the publisher separate from that of the advertiser. The statute is not written, as the majority implies, to prohibit a real estate vendor or advertiser from discriminating, and if he or she does so, then to provide for liability of the publisher as well. Rather, the statute prohibits both parties, equally and individually, from discriminating. Thus if the Enquirer publishes a spread of advertising that when examined together indicates to the reasonable reader that certain groups are preferred, the Enquirer has violated the Act regardless of whether individual advertisers have also violated the Act.

According to the complaint, the Enquirer has a history of running advertisements which depict white models almost exclusively. Paragraph 9 of the complaint states:

At least 34% of the population of the City of Cincinnati is Black. 19% of Hamilton County is Black. 12% of the Metropolitan Statistical area is Black. During the twenty year period since the Act was passed prohibiting discriminatory advertisements, display advertisements have appeared in the Sunday Enquirer featuring hundreds of human models of whom virtually none were Black. Nearly all advertisers in the real estate section who have advertisements with human models depict only whites. In group photographs in the real estate section the groups consist of exclusively white people. Of all of the advertisements displaying human models less than 1% include a Black person.

Paragraph 15 of the complaint states:

From November 8, 1987 to October 15, 1989 there were approximately 1000 separate advertisements with human models in the Sunday Real Estate Section of the Cincinnati Enquirer. Only nine of such ads have one or more Blacks.appearing.

Joint Appendix at 7, 10.

How can the majority possibly hold that the Cincinnati Enquirer’s all white advertisements fail to indicate to an average reader that blacks are not welcome to buy or rent housing in the places advertised in the Enquirer? It is not an accident that 99% of the models depicted in real estate advertising are white. Advertising agencies and real estate developers do not make marketing decisions casually. In fact, unlike the sale of clothes, there is no need at all for human models in the sale of real estate. Given the absence of a need for these models, when models are present the advertisements convey that the models are used for an improper purpose — to communicate a racial preference. Conveying racial preference is improper regardless of whether or not the advertiser or publisher actually intended to do so.

If the same or related 8 advertisers or publishers repeatedly and exclusively use white models, that strikes me as indicating a racial preference. This common sense likelihood is not addressed at all in the majority opinion. The majority refuses to examine the Enquirer’s display for discrimination unless it first finds discrimination on the part of an advertiser. The majority can point to nothing in the Act or the regulations, however, that limits the publisher’s liability to only derivative liability. Publishers and advertisers are both liable if the display they present indicates a preference. HOME has alleged that the display published by the Enquirer shows few blacks, thus indicating a preference. HOME is entitled to have a fact finder determine whether a reasonable inference from the display is that blacks are not preferred.

*663 D.

It is absolutely clear to me that the message conveyed by the pattern of segregated advertisements denominated in the complaint is that blacks need not apply. The effect of this message is to preserve the status quo of racially segregated housing. The purpose of the Fair Housing Act "was to replace the ghettos by truly integrated and balanced patterns." Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 211 , 93 S.Ct. 364, 367 , 34 L.Ed.2d 415 (1972) (citing Senator Walter Mondale 114 Cong. Rec. 3422). The construction of the Act set forth in this dissent advances this goal. The construction set forth by the majority does not.

I recognize, of course, that it is the advertising agency or developer which presents advertisements to the Enquirer. The exclusive use of white models in the advertisements simply reflects biases that are present in certain segments of American society. The purpose of the Act, however, is to prohibit the manifestation of these biases. The Enquirer is an excellent newspaper. I am not suggesting that it is intentionally biased against blacks. In fact, I believe the contrary. But the Enquirer, like other leading newspapers, has sadly failed to review its display advertising to screen out the racially biased messages it sends. The Fair Housing Act is certainly broad enough to address these messages.

Iv.

The majority argues that to attribute liability to publishers for the aggregate message they publish would violate the first amendment. 9 I certainly take first amendment concerns seriously. But this statute, as properly interpreted to impose liability for publishers who violate the Act by an aggregate of advertisements, simply does not unduly burden first amendment interests. The majority correctly cites the analysis set forth in Central Hudson Gas Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 562-64 , 100 S.Ct. 2343, 2349-50 , 65 L.Ed.2d 341 (1980), to determine the first amendment protection warranted for this commercial speech. However, the majority completely misapplies this analysis to the facts alleged here.

A.

The first prong of the Central Hudson test is whether the commercial speech concerns lawful activity and is not misleading. Any speech that concerns unlawful activity is not protected. Id. at 563-64 , 100 S.Ct. at 2350 . I disagree with the majority's view that the aggregate message of racially exclusive housing concerns lawful activity. The majority implicitly defines the relevant activity as simply the sale of real estate. The speech in the instant case concerns the sale and rental of real estate in a racially discriminatory manner. In other words, it is speech that promotes the illegal result of housing sale and rental on a discriminatory basis. For this reason alone, as commercial speech it loses its first amendment protection and HOME's claim therefore does not impinge on first amendment rights.

B.

Even if, arguendo, the speech concerns legal activity, the speech is not protected because the Act meets the rest of the Central Hudson test. If the Act concerns a substantial government interest, directly advances that interest, and is not more expansive than necessary to achieve that interest, the restriction on commercial speech will be constitutional. Id.

*664 1.

The majority concedes that the government interest in promoting fair housing and halting discriminatory housing is substantial. It contends, however, that the regulation does not directly advance the government interest. I find the majority’s assertion indefensible. It is doubtless that the prohibition of discriminatory aggregate messages of exclusion directly effectuates accomplishing that goal. The majority asserts that HOME’S claim is too attenuated from the goal of fair housing because it interprets HOME’S complaint to assert that the challenged advertising message need not be directly traceable to a particular advertisement for a specific plot of real estate. The majority says that even if the message permeates the market and generates a “less than friendly” environment for a certain class, “it is difficult to determine how this message deters individuals from seeking to buy or rent specific real estate.” Majority Opinion at 652. This task is not difficult at all. If blacks find that they are not pictured in the advertisements in the Enquirer, they likely, as the facts have shown in other trials, will get the message that they are not welcome and members of the race pictured are preferred. See supra section III-A. Thus they will not respond to those advertisements and likely will not even look in the Enquirer when seeking a home; they will be steered to consult other sources for available housing that do not act as a deterrent.

The majority claims that it would be “anomalous” for the publisher to be liable when all the advertisers complied with the Act. Majority Opinion at 652. Even assuming that hypothetical situation, which is very unlikely considering the statistics presented by HOME, the outcome is not anomalous at all. It is simply the result of recognizing that there is a separate message in the aggregate that may not be conveyed by each of the several parts. Indeed, it is the effectuation of the provisions of the Act. In fact, the structure of the Act indicates that this outcome is not at all anomalous. As noted in section III — C, the statute prohibits both advertisers and publishers equally and individually from discriminating. The publisher’s liability is clearly not derivative of that of the advertiser.

The majority asserts that the instant case is analogous to Linmark Assocs. v. Willingboro, 431 U.S. 85 , 97 S.Ct. 1614 , 52 L.Ed.2d 155 (1977), where the Court held that a regulation prohibiting a “For Sale” sign was too attenuated from the goal of integrated housing to withstand a first amendment challenge. Id. at 95-96 , 97 S.Ct. at 1619-20 . The majority notes that the Supreme Court in Central Hudson found that there was no definite connection between the goal and the ban. Here there is a definite connection. A ban on aggregating advertisements in a way that the interpretation by a reasonable reader is that one race is preferred clearly addresses the goal of integration. Without such a ban those dispreferred will seek housing other than that advertised in the Enquirer. The result will be that those seeking a home in the places advertised in the Enquirer will be disproportionately from the preferred group.

2.

The majority contends that another part of the Central Hudson test is not met— that the statute is more extensive than necessary to serve the interest it furthers. In support of its contention, the majority posits a parade of horribles that is far overstated. The majority postulates that the Act applied to aggregate messages by publishers would force the press to become the government’s police. It points out that the only way the press could regulate its message would be to keep abreast of minority statistics. The majority conjures a distressing quest to determine which geographical area is relevant to determine a reasonable racial mix. It also finds it a heavy burden for a newspaper to notify a particular advertiser that it must submit an advertisement without models or use minority models in order to comply with anti-discrimination laws.

I disagree that a heavy burden on newspaper publishers would result if publishers *665 could be liable for advertisements which when aggregated send a discriminatory message. Newspapers review advertising under a variety of objective and subjective criteria. No reputable newspaper such as the Cincinnati Enquirer publishes false or deceptive advertising. No reputable newspaper publishes advertising with offensive language. No reputable newspaper publishes advertising which is clearly unlawful. Given the extensive monitoring that a reputable newspaper necessarily performs, there is little additional burden in seeing to it that discriminatory messages are not sent in print advertising.

The majority opinion is myopic in its approach and has little support in law, policy or in legislative history. The majority speaks of a concern for the efforts necessary to get a proper racial mix. While the majority does not use the word quota in the opinion, the word was used from the bench in oral argument by a member of the majority. It is apparently a concern about quotas that frightens the majority. The word “quota” is a code word for an inflammatory concept that is used by those opposed to affirmative action and fair housing. The majority knows that the prospect of creating a quota is ludicrous and injects into this litigation a concept which draws on the worst instincts and behavior of many American citizens. This case is about advertising and fair housing. We are called upon to determine whether this plaintiffs claim states a cause of action for violating the Fair Housing Act and whether this plaintiff is entitled to its day in court. All one has to do is look at a changing neighborhood and see the housing signs that go up when the landlords want blacks to apply. The signs usually say “all are welcome.” We know what that message means to black Americans, It means that racially restrictive housing practices have been abandoned and blacks will not be precluded from living in the residence of their choice.

The majority is concerned that monitoring real estate advertising could require establishing a proper racial mix. I see no such problem.

First, no particular number is required. I think that any reasonable figure could be a bench mark, including either the percentage of blacks in the City of Cincinnati itself or in the metropolitan area. HUD’s regulations suggest a reasonable representation of the metropolitan area. 24 C.F.R. § 109 .-30(b). Statistics on racial compositions of metropolitan areas are readily available. See, Bureau of the Census, U.S. Dep’t of Commerce, Statistical Abstract of the United States 33-36 (1990). There exists a zone of reasonableness that should present little or no problem for newspapers or advertisers. 10 Put another way, as a matter of law, the use of models reasonably reflecting community makeup would not indicate a racial preference to the average reader. What I do think indicates a racial preference to the average reader is the infinitesimal use of black models, as the complaint alleges. Ironically and unfortunately, the majority drags out the quota bug-a-boo while it is unconcerned that the Cincinnati Enquirer has less than 1% black models in its real estate advertising. 11

It is true that a newspaper could be confronted with many advertisements each *666 from a different real estate vendor and each featuring only one or two white models, thus perhaps not facially indicating a preference. It does not appear to me to be an unacceptable burden to require the newspaper to ask some of its advertisers to include minority models or refuse to print the advertisements when the alternative is a newspaper spread that says to minority Americans, “We prefer to sell and rent to members of another race.” This is not simply a ban on discriminatory speech; the Act prohibits the press from furthering commercial transactions that are discriminatory by providing to advertisers who print in their newspaper a group of prospective clients that has been pre-screened to exclude minorities. 12

V.

Discriminatory housing is a fact of life. In fact, there has been little progress in combatting housing discrimination in the last ten years. All one has to do is look at some of the major cities in the country— Washington, D.C., Philadelphia, Baltimore, New York City, Chicago, Detroit and Los Angeles, for example — to support this proposition. 13 Congress chose to dismantle artificial barriers to integration in order to give blacks and other minorities complete access to housing. The complaint filed by plaintiff highlights a serious and troubling problem — the perpetuation of racially biased messages by some of our leading newspapers.

The majority chooses to immunize newspapers from liability in all but the most egregious cases. In the process, the majority narrowly construes an act that Congress decreed should be construed to effectuate the broad purpose of fair housing. 42 U.S.C. § 3601 .

For the reasons set forth above, I believe that this complaint fairly states a cause of action for violation of the Fair Housing Act. I would reverse and remand for further proceedings.

. The district court held that a party must show discriminatory intent unless an advertisement showed a discriminatory preference which is obvious. Housing Opportunities Made Equal, *655 Inc., v. Cincinnati Enquirer, Inc., 731 F.Supp. 801, 804 (S.D.Ohio 1990). The majority opinion concedes that courts which have addressed the issue have held that intent is not a necessary element of a violation of § 3604(c). Majority opinion at 646. The Act prohibits publication of any real estate advertisement "that indicates any preference ... based on race_” 42 U.S.C. § 3604 (c). In fact, three circuits, giving the verb "indicates” its common meaning, have held that the statute’s language dictates that the Act is violated if the housing advertisement suggests to an ordinary reader that a particular race is preferred or dispreferred for the housing. Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir.1991); Spann v. Colonial Village, Inc., 899 F.2d 24, 29-30 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 508 , 112 L.Ed.2d 521 (1990); United States v. Hunter, 459 F.2d 205, 215 (4th Cir.), cert. denied, 409 U.S. 934 , 93 S.Ct. 235 , 34 L.Ed.2d 189 (1972). See also Fenwick-Schafer v. Sterling Homes Corp., No. R-90-1376, slip op. at 5 (D.Md. Mar. 28, 1991).

. I disagree with the majority's interpretation of the section of transcript provided in the majority opinion at footnote four indicating that the only claim by HOME is the aggregation claim, to the -exclusion of the single advertisement claim. I understand the plaintiffs attorney's agreement to the panel’s interpretation of the complaint to be limited to the second issue on appeal. Thus plaintiffs attorney agreed that Judge Kennedy had properly summarized the second claim, but was not disavowing the first issue on appeal concerning a single advertisement. In oral argument, both judges in the majority explicitly stated that they understood HOME was making two arguments in the alternative.

Defendant's Attorney: Your honor, I heard [HOME’s] counsel concede to the court that there was no single ad that had been placed which on its face expressed a racial preference or indicated a racial preference.

J. Kennedy: I’m not sure he did. I think he’s saying that any ad that does not include a minority expresses on its face a racial preference.

Defendant’s Attorney: Your honor, if that’s the case then I submit that is an incorrect interpretation of the law because the law has not yet indicated that a single ad which shows for example a group of white people; two three, whatever would be in effect expressing a racial preference. In fact, I heard Mr. Newman concede that the only way that would express a racial preference is if it were accompanied by some other indication some other symbol expressing a racial preference.

J. Suhrheinrich: You might have heard him different from me, but I was trying to pin him all down and I thought he came back ulti *657 mately and said that a single ad could be in violation and that is where I used perhaps the wrong kind of word, but I said then you’re talking about a quota.

. I believe it is beyond the scope of this case whether a hypothetical complaint that just alleged the publication of one advertisement with one or two white models would be sufficient to survive a rule 12(b)(6) dismissal. That issue is not presented in the instant case and therefore I do not reach it. I note that the regulations conclude that a picture with two models, both white, would not portray inclusiveness and may indicate a preference. 45 Fed.Reg. 57,105; infra section II-B. The complaint in the instant case alleges a long-standing pattern of publishing advertisements with white models only, including group photographs. As the Second Circuit stated in Ragin , ‘‘[g]iven the ordinary reader test, it can hardly be said that these allegations are insufficient_” Ragin, 923 F.2d at 1001 .

. The complaint in Ragin also alleged that in the few pictures including black models, blacks were usually depicted as maintenance employees, doormen, entertainers, sports figures, small children or cartoon characters. Ragin, 923 F.2d at 998 . While such allegations were not present in the instant complaint, there is no indication that the Ragin court relied on this part of the allegations in reaching its decision.

. While I mention the standard for determining summary judgment to highlight the sufficiency of HOME'S claim to avoid dismissal under Rule 12(b)(6), the evidence discussed above and the possibility of the expert testimony indicate to me that not only is there an issue of fact in this case, but that there is a genuine issue of material fact. Thus not only is Rule 12(b)(6) dismissal inappropriate, Rule 56 summary judgment also appears inappropriate even if evidence beyond the complaint were considered. The higher standard of genuine issue of material fact only applies to summary judgment motions when documents beyond the pleadings are considered. See Blum v. Morgan Guar. Trust Co. of N.Y., 709 F.2d 1463, 1446 (11th Cir.1983); United States ex rel. Simmons v. Zibilich, 542 F.2d 259 , 260 n. 3 (5th Cir.1976); Franklin & Joseph, Inc. v. Continental Health Indus., Inc., 664 F.Supp. 719, 720 (S.D.N.Y.1987).

. In footnote eight, the majority argues that it does not require particularity of the advertisement, but of the message. On page twelve in its statutory argument, however, it complains that "[a]lthough implicating advertisements in general, [the aggregation] claim does not depend upon a finding that any particular advertisement is discriminatory." Majority opinion at 650 (emphasis added). This appears contradictory. The majority argues that particularity of advertisement is required by the statute but disclaims this in footnote eight. As demonstrated supra in this section, the statute simply does not require such particularity. The majority concedes this in the footnote.

The majority’s argument in footnote eight seems to speak to the dissent’s response to the majority interpretation of the regulations discussed infra at section III-B, not the statute as discussed here in section III-A. Majority opinion at 650. With regard to the majority’s regulations argument, particularity as to message, as the majority defines it, is also met. See infra section III-B. The majority argues that HOME has not stated a claim because the majority reads the regulations to require that the aggregate message and the message of each advertisement refer to the same piece of property. Majority opinion at 650 n. 8. I disagree for two reasons.

*661 First, the regulations do not state that this identity between the aggregate message and the message of each advertisement must exist. I assume that the majority somehow also reads this identity requirement into the word “campaign.” See infra section III-B. In fact, it is a judicial creation of the majority.

Second, even if the regulations did require the aggregate message and the message of the individual advertisements to refer to the same property, the plaintiff has met this standard. The aggregate message refers to all the property in the Enquirer’s display layout. It states that blacks are dispreferred customers to rent the properties advertised. If blacks see that they are excluded from the advertisements in the Enquirer, they will get the message that members of the race pictured are preferred and, therefore, will not even look in the Enquirer when seeking a home. The aggregate message is to steer them away from the individual properties advertised in the advertising display layout. Collectively the individual advertisements in the layout refer to all the properties advertised in the Enquirer. This is the same property that the aggregate message says is offered on a preferential basis to a group other than blacks.

. Even if such a requirement existed, the allegations in this complaint are linked to the properties advertised in the Enquirer, as noted in the previous section. See supra section III-A. Some of those advertisements are by the same advertiser for the same property. Admittedly the complaint does not specify this information, as conceded at oral argument. It seems to me that even if the majority limits the restriction of the Act to "campaigns” and limits "campaigns” to advertisements for the same property, the appropriate resolution for this case would be to remand the case for an amendment of the pleadings.

. By "related advertisers” I am referring to different buildings with the same owner or manager. For example, two condominium complexes which submitted separate advertising but are owned by the same party. The same result would be achieved if the owner or manager were considered the "advertiser” and therefore it would only be one advertiser with multiple properties.

. The majority concedes that the first amendment concerns apply only to the second, aggregation, claim. Majority Opinion at footnote 9. I note that in footnote 9 of the majority opinion, the majority falls victim to the circular argument alluded to and explicitly distinguished in Ragin. Ragin did not find that the advertisements were not protected because they were illegal, rather the advertisements were not protected because the activity they were promoting, discriminatory sale of real estate, was illegal. As the Ragin Court and the New York Times in Ragin noted, a test that simply asked whether the speech had been made illegal to determine whether the ban was unconstitutional would be self-fulfilling. Ragin, 923 F.2d at 1002 .

. Courts, for example, have long applied a zone of reasonableness test in reviewing voluntary affirmative action plans. See, e.g., United Steel Workers v. Weber, 443 U.S. 193, 212 , 99 S.Ct. 2721, 2731 , 61 L.Ed.2d 480 (1979); Baker v. City of Detroit, 483 F.Supp. 930, 991 (E.D.Mich.1979), aff'd sub nom Bratton v. City of Detroit, 704 F.2d 878, 892 (6th Cir.1983), on rehearing, 712 F.2d 222 (6th Cir.1983), cert. denied, 464 U.S. 1040 , 104 S.Ct. 703 , 79 L.Ed.2d 168 (1984).

. The majority's concern with quotas reflects a knee-jerk response by some Americans who believe that any time there is a requirement that blacks be included in any but token numbers, the result will be the creation of quotas. While it is always possible for a potential defendant to independently set fixed numbers as a means of preventing inclusion of only a small number of blacks, it remains true that an equally effective way to prevent liability is to cease discriminating or cease to let discrimination affect the potential defendant’s operations.

Publishers in the instant case could cease accepting advertisements with models. As other courts have noted, models are a carefully used tool in advertising to get a potential customer to relate to the model. See Saunders, 659 F.Supp. at 1058-59 . Unlike clothes, there is certainly no need for human models to advertise real estate. Should a publisher decide that it will accept advertising which uses human models, the statute and regulations require that the advertising *666 reflect inclusiveness and not indicate a preference. This is not a test of exact matches to population figures. It is a non-numerical impression that will result if the pictures reflect a composition within a range or zone of reasonableness.

Additionally, I would note, as the court did in Ragin , that unlike a job situation where imposition of a quota might lead to depriving some people of a job so that a quota could be met, there is absolutely no loss in the model situation. See Ragin, 923 F.2d at 1000-01 . Even if a quota were imposed, and even if it were at a point higher than that which would be representative, no one would be deprived of housing.

. There is one final note. I have no interest in subjecting newspapers to numerous claims for damages for unspecified emotional distress at seeing exclusively white models in advertisements. This concern — not noted by the majority but noted by the Second Circuit in Ragin , 923 F.2d' at 1004-05 — can easily be addressed by district courts. Cases of this nature warrant declaratory and injunctive relief. Where a violation of the Fair Housing Act is based only upon the use of white models, individual emotional distress damages would, in the ordinary case, be too speculative as a matter of law.

. Current nationwide comparative statistics are not available, but recent studies support the lack of progress and in fact regression in combatting housing discrimination. In Washington, D.C., a 1990 study found the highest rate of discrimination in five years. Vane, Anti-black Bias in Rental Housing Prevalent in Test, Washington Times, Jan. 31, 1991, at B3. In Boston, on the occasion of embarking on a new study, housing officials asserted that Boston had not made much progress since the early 1980s, when a study indicated blacks had nearly a ninety percent chance of encountering discrimination at least once out of four visits to rental offices. Kennedy, Lawyers’ Unit Unveils Plan to Attack Bias in Real Estate, Boston Globe, Jan. 24, 1990, at 17. A study reported in the Washington Post in 1989 examining 1980 census figures found that blacks in ten major cities (Baltimore, Chicago, Cleveland, Detroit, Gary, Los Angeles, Milwaukee, Newark, St. Louis, and Philadelphia) had become "hypersegregated" as a result of housing discrimination and prejudice. Hyper-segregation is the high concentration of a group in which members of the group live only near other members of the group. Rich, Blacks in Baltimore, 9 Other Cities ‘Hypersegregated,’ Washington Post, Aug. 5, 1989, at A3. A 1977 study by HUD found the rate of discrimination with respect to housing availability in the rental market to be 27% and the rate of discrimination with respect to housing availability in the sales market to be 15%. Office of Policy Development and Research, U.S. Dep’t of Housing and Urban Development, Measuring racial discrimination in American Markets, ES-27 to -28 (1979).