Opposition — Linmark Associates, Inc. v. Willingboro

IN THE

Supreme Court of the United States

Ocroser TERM, 1976

No. 76-357

4

LINMARK ASSOCIATES, INC. and

WILLIAM MELLMAN, ;

Petitioners,

la

THE TOWNSHIP OF WILLINGBORO and

GERALD DALY,

- Respondents.

On Petirion ror A Writ or CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENTS

IN OPPOSITION

MYRON H. GOTTLIEB,

KESSLER, TUTEK ann GOTTLIEB

325 Farnsworth Avenue,

Bordentown, New Jersey 08505

Counsel for Respondents

; swe

N —". Printing Co., Inc., South Plainfield, New Jersey (201) 753-0200

Bt “ET i590

| aqytid |

Bn ‘unos + UCB

i ——- ——

eh oan sda es Anode ke ees ee ean

ND CD icc cndvessaces dank edeecstegias

Constitutional Provisions and Ordinance Involved ... .

SE Sav Fadddeceucdswectendeeebisecescise ess

POM oc icicsscccccsccnencnedsccscccccecces

I. The Decision Below is Clearly Correct ......

II. There is No Conflict of Decision ..........

I Gy ar ea en ee ee ve tae

CITATIONS

Cases CITED:

Barrick Realty, Inc. v. City of Gary, Indiana,

— & § Bae ee Err rr 12

Bigelow v. Virginia,

GBA UG. GED (UOTE) onc ccc cc cccccecccvens. 7,9

Branzburg v. Hayes,

408 U.S. 665 (1972) 00... . 0 cece cece ee eees 4

Levitt and Sons, Inc. v. Division Against

Discrimination in the State Department of

Education,

31 N.J. 514, 158 A.2d 177 (1960), appeal

dismissed, 363 U.S. 418 (1960) .............. 2,8

Metropolitan Housing Development Corporation

v. Village of Arlington Heights,

517 F.2d 409 (7 Cir. 1975), cert. granted, 423

DE BU COD vscvnnseisocccsdecescceses 8

Otero v. New York City Housing Authority,

484 F.2d 1122 (2 Cir. 1978) ...........0005, 11

United States v. Bob Lawrence Realty, Inc.,

474 F.2d 115 (5 Cir. 1975), cert. denied,

Eg i hua edp cnet deeueues 10

United States v. Hunter,

459 F.2d 205 (4 Cir. 1972), cert. denied,

Ge, Ge BI inc vicvavenn cs cecscedives 10

STatutes Cirep:

ORG, GN EOD «oo. oi ioikascdciceccticns 9

42 U.S.C. §3604 ...... ka deneeiesuskinn tes sundueen 3

I I ON olives cca cdvsesdecanndes 9

NJ.S.A. 10:5-10 . ......... RR eee ,

IN THE

SUPREME COURT OF THE UNITED STATES

Ocrosner Tenm, 1976

No. 76-357

LINMARK ASSOCIATES, INC. and

WILLIAM MELLMAN,

Petitioners,

v.

THE TOWNSHIP OF WILLINGBORO and

GERALD DALY,

Respondents.

On Petition FoR A Writ oF CERTIORARI TO THE

Unrrep STATES Court OF APPEALS FOR

THE Turap Cracurr

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the District Court (Appendix B of

Petition) is unreported. The opinion of the Court of

Appeals for the Third Circuit, and the dissenting opinion

(Appendix A of Petition) are reported at 535 F.2d 786.

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTION PRESENTED

Whether a municipal ordinance prohibiting “for sale”

and “sold” sigas in residential districts, in an attempt to

counteract a fear psychology and inhibit panic-selling in a

community which is fully integrated in its housing pattern,

is a violation of the First Amendment right of free speech

where other means to advertise the proposed and/or con-

summated sale of a home exist and the effect of the ordi-

nance is the minimum intrusion possible to accomplish

the purpose?

CONSTITUTIONAL PROVISIONS AND

ORDINANCE INVOLVED

The Constitutional provisions and ordinance involved

are adequately set forth in the Petition.

STATEMENT

Willingboro Township is a community of approxi-

mately 45,000 residents located in Burlington County, New

Jersey. (Jt. App. 128a). Its residential development com-

menced in the late 1950's and is attributable mainly to

Levitt and Sons, Inc. In the early years of development,

Levitt refused to sell its homes to minority group mem-

bers. This racially-based housing discrimination was en-

joined by the New Jersey Supreme Court. Levitt and

Sons, Inc. v. Division Against Discrimination in the State

Department of Education, 31 NJ. 514, 158 A.2d 177

(1960), appeal dismissed, 363 U.S. 418 (1960). After the

conclusion of that litigation, Levitt instituted a policy of

actively encouraging the development of the Township as

an integrated community (Jt. App. 182a). As a result,

there is a totally integrated housing pattern in Willingboro.

While development of the Township proceeded sequen-

OE

_ Statement 3

tially through ten different areas or “parks” (i.e., Millbrook

Park, Buckingham Park, Garfield Park, etc.), no park can

be denominated a white section, a black section or a Span-

ish-speaking section, each park having members of almost

all racial and ethnic groups living together. (Jt. App.

183a; 214a). As indicated in the decision below, “a close

approach was achieved to that housing ideal sought by

fair-minded citizens, mandated by the federal Fair Housing

Act, 42 U.S.C. §3604, and impelled by our Constitution.”

535 F.2d at 789.

However, in the late 1960's, racial problems and con-

flict surfaced. In response, the Township Council, pur-

suant to N.J.S.A. 10:5-10, created the Willingboro Human

Relations Commission, which is statutorily charged with

attempting “to foster through community effort or other-

wise, good will, cooperation and conciliation among the

groups and elements of the inhabitants of the community”

and which was empowered by Township Council “to make

recommendations to [Township Council] for the develop-

ment of policies and procedures in general and for pro-

grams of formal and informal education that will aid in

eliminating all types of discrimination based on race,

creed, color, national origin, ancestry, age, marital status or

sex.” The Township also became a member of National

Neighbors, an organization promoting integrated housing

and discussing the various problems arising from this. (Jt.

App. 183a).

Since Willingboro’s population has been to a certain

extent transient (being close to several military installa-

tions) and because over ei, ity realtor’s offices competed

for the sale of homes in the Township, which had a uni-

formity in home construction, the proliferation of “for sale”

and “sold” signs helped to create the impression that many

people were leaving the community. (Jt. App. 233a).

4 Statement

As a result, a fear psychology developed among many home

owners. One Councilman described this as:

“. . . people in the community were expressing a desire

to sell their homes and move to other areas of Burlington

County because what they sensed was a lack of stability

or a large turnover in the community, and that this large

turnover was resulting in a substantial influx of minority

groups into the community beyond what could be sustained

without the community itself turning into a ghetto within

the county.

“People would indicate that: ‘Everybody on my street

is moving. I’ve got to get out of this town before it’s

too late.’

“People would express a concern of: “with all the turn-

over, my property value is going to go down. I got to

get out.”” (Jt. App. 18a).

From a concern for the preservation of the well-inte-

grated character of the community and a desire to counter-

act the growing fear psychology, the Human Relations

Commission, after an investigation noting the increasing

panic selling, recommended to Township Council the pro-

hibition of “for sale” and “sold” sign in residential areas

of the Township. This recommendation, as described by

one Commission member, was one attempt to respond to

the developing fear psychology:

“I think the Commission would like to see a commu-

nity which is as harmonious as it would choose to be

without the kind of pressures, if I may use that term, which

would induce people to sell when in fact they don’t want

to sell; and I think that’s the thing that the ordinance was

directed at.

“Individuals were responding and reacting to a rash of

signs, or, one sign which would lead to another, and an-

other and another.

Statement 5

“I think that’s the concern the Commission was trying

to address.

“If the neighborhood was or is to be all black, and it

that is a decision by choice, choice of the individuals in-

volved, then the Commission I believe would have no

concerns about that. But if neighbors, residents of the

township are being pushed into this kind of thing by the

presence of a sign or signs, then I think the Commissioner's

concern would be that that ought not to be, this is not the

free choice that people ought to exercise, should exercise.”

(Jt. App. 244a-245a ).

Township Council investigated how similar ordinances

had worked in other municipalities. It held two public

hearings, one before and one after the drafting of the

ordinance. (Jt. App. 186a). The ordinance under review

was then adopted. Suit was commenced by a realtor and

by a corporation owning a home in the Township. After

a two day trial, the District Court for the District of New

Jersey concluded that the ordinance was unconstitutional,

holding that (1) “the ordinance brings about a serious

denial of a property owners [sic] right to freely and rea-

sonably express to others the desire to sell in violation of

the First Amendment” and (2) “in its application the

Willingboro ordinance results in an infringement upon the

fundamental right to travel.”

Upon appeal, the United States Court of Appeals for

the Third Circuit reversed the District Court decision and

upheld the constitutionality of the ordinance. That Court

concluded that while commercial speech was entitled to

First Amendment protection, in assessing and balancing

the interests involved, “[t]he preservation of a desirable

community impels a priority of the community's needs

over commercial transactions in the community as they see

fit, so long as those community needs are reasonably estab-

6 Statement

lished and the means chosen to meet them do not intringe

upon the fundamental constitutional rights of individual

businessmen.” It then determined that “the limited denial

occasioned by the ordinance herein [resulting] from a reas-

onable exercise of the police power in furthering the public

welfare by forestalling panic selling and its offspring, segre-

gation.” Finally, the Court found that “[s]ellers are free

to sell to any economically qualified buyer. Economically

qualified buyers of any racial group are free to buy any

home in any section of Willingboro. No burden on com-

merce or a deterring influence on the individual right to

migrate has been shown.”

A Petition for Rehearing en banc was denied and a

timely Petition for a Writ of Certiorari followed.

ARGUMENT

The issue in this case is rather narrow, not warranting

review by this Court on certiorari. This case does not

seek to question whether commercial speech is to be af-

forded any protection under the First Amendment (all

parties and the Courts conceed that is so) nor does this

case inquire whether that First Amendment protection can

be overridden by a compelling State interest (that is clear

to all concerned.) Specifically, the question is a factual

issue concerned with the sufficiency of proof of a compel-

ling State interest to override the First Amendment.

While the question presented as phrased by Petition-

ers does refer, in addition to freedom of speech, to equal

protection of the law and due process, no mention of either

constitutional concept is made in the supporting Reasons

for Granting the Writ. There is only one issue—one of fact

as to the sufficiency of proof under a clearly articulated

standard defining the scope of First Amendment rights—

not justifying the granting of the Writ.

Clearly, the decision of the Court of Appeals was

correct and there is no conflict of decision requiring review

by this Court.

I. THE DECISION BELOW IS CLEARLY

CORRECT

It is clearly-established that “speech is not stripped of

its First Amendment protection merely because it appears

in [the] form [of commercial speech].” Bigelow v. Vir-

ginia, 421 U.S. 809, 818 (1975). However, it is similarly

evident that “official action with adverse impact on First

Amendment rights must be justified by a public interest that

is ‘compelling’ or ‘paramount ” nor “may it be achieved by

unduly broad means having an unnecessary impact on pro-

8 Argument

tected rights of speech, press, or association.” Branzburg

v. Hayes, 408 U.S. 665, 680-1 (1972). The Township of

Willingboro manifestly established a compelling State in-

terest which was not overly broad in its impact. A brief

review of the facts amply demonstrates this.

Willingboro, after the 1960 decision in Levitt and

Sons, Inc. v. Division Against Discrimination in the State

Department of Education, supra., has actively worked on

and put into practice the reality of full racial and ethnic

integration in housing. (Jt. App. 182a-183a). Thus,

viewed in an historical context, the action of Township

Council cannot be presumed to be other than consistent

with this positive approach to living in racial and ethnic

harmony. See Metropolitan Housing Development Cor-

poration v. Village of Arlington Heights, 517 F.2d 409, 414

(7 Cir. 1975), cert. granted, 423 U.S. 1030 (1975), as to

the propriety of referring to an historical context in evalu-

ating the discriminatory effect of a municipal decision.

It became quite evident to Township Council that

there was a fear psychology developing based on the exis-

tence of “for sale” and “sold” signs. (Jt. App. 18la; 207;

240a; 248a.) While Township Council believed this to

be “an irrational reaction,” Council also concluded that it

had to act “to give people the feeling of stability so that

they would not overreact to a particular situation.” (Jt.

App. 18la). It decided, upon recommendation of the

Human Relations Commission and after investigation of a

similar approach in a municipality in Ohio (Jt. App. 184a-

185a), to prohibit “for sale” and “sold” signs in the resi-

dential areas of the Township. Although Willingboro was

and had been fully integrated, Township Council con-

cluded that the fear psychology might result in Willingboro

metainorphosing from an integrated community to a ghetto

(Jt. App. 182a). The decision was to “nip it in the bud

Argument 9

and stop it. — before too much of this got out of hand.”

(Jt. App. 207a).

Without question, the promotion and maintenance of

integrated housing is of the highest public interest. See

42 U.S.C. §3601 et seq. (Fair Housing Act); N.J.S.A. 10:

5-1 et seq. (Law Against Discrimination ). Contrasted with

this is the limited intrusion on the First Amendment right

of free speech vis-a-vis commercial “for sale” signs. There

can be no doubt that the minimal restriction on commercial

speech, when balanced against the desire to eliminate a fear

psychology as an impediment to the maintenance of inte-

grated housing, must be sustained. Indeed, the efficacy

of this statement is strengthened by the minimal aspect of

the intrusion. Petitioner Mellman himself indicated in

testimony that approximately seventy per cent of his real

estate transactions were initiated other than through on-site

“for sale” signs. (Jt. App. 135a). Advertisement and per-

sonal contact, the two other main areas in initiating real

estate transactions, were not at all affected by the ordi-

nance. In reality, real estate sales maintained their pre-

ordinance level after the adoption of the ordinance (Jt.

App. 170a). Thus, the sale of residences was not affected,

only the means of sa’e and the reason for some owners

wanting to sell. (Jt Ap. 19la-192a). Clearly, there was

no other approach co minimizing the fear psychology, than

banning the “for sale” signs, that would have been as effec-

tive and yet would have as such a minimal interference in

the proccss of selling homes. Council acted only to the

extent necessary and in the paramount public interest.

II. THERE IS NO CONFLICT OF DECISION

In their Petition, Petitioners argue that this decision

is at odds with Bigelow v. Virginia, 421 U.S. 809 (1975).

10 Argument

However, a careful comparison of the two decisions will

reveal their consistency in philosophy, but certain critical

differences in their factual context.

Jeffrey C. Bigelow, the managing editor of a news-

paper in Virginia, had published an advertisement offering

a source of information for the procuring of a legal abor-

tion. A Virginia statute declared that one was guilty of a

misdemeanor if he published or advertised the procuring

of an abortion. Mr. Bigelow was convicted under this

statute. This Court reversed the judgment of conviction,

holding that the statute, as applied, infringed upon the

First Amendment rights of Mr. Bigelow.

In the opinion delivered by Mr. Justice Blackmun, it

was noted that:

“We need not decide in this case the precise extent to

which the First Amendment permits regulation of adver-

tising that is related to activities the State may legitimately

regulate or even prohibit.” 421 U.S, at ;

In a footnote to this quoted sentence, reference was

made to its consistency with certain other decisions, in

which “there usually existed a clear relationship between

the advertising in question and an activity that the gov-

ernment was legitimately regulating.” In the case of Will-

ingboro, the clear relationship obtains between the exis-

tence of the means of advertising (the signs), as opposed

to their specific content, and the psychological fear (result-

ing in panic selling) which the Township legitimately

could regulate. The footnote references to United States

v. Bob Lawrence Realty, Inc., 474 F.2d 115 (5 Cir. 1975),

cert. denied, 414 U.S, 826 (1973), a case upholding a re-

striction on free speech in an antiblockbusting context, and

United States v. Hunter, 459 F.2d 205 (4 Cir. 1972), cert.

denied, 409 U.S. 934 (1972), which involved a newspaper

Argument ll

advertisement for a furnished apartment in what was de-

nominated as a “white home,” point out both the simi-

larity and difference between the Bigelow case and the

present case, and yet the consistency in the philosophies

behind them. In Bigelow, there was no paramount public

interest to justify the intrusion on First Amendment rights,

yet, as made clear in that decision, this compelling public

interest may support a regulation when that interest is

concerned with maintaining equal racial and ethnic oppor-

tunity. Similarly, Willingboro’s regulation was precisely

aimed at eliminating the threat to maintaining that equal

racial and ethnic opportunity in housing, once achieved.

Yet, unlike Bigelow, the activity regulated referred to

panic selling which is unlawful under 42 U.S.C.

§3604(e), while abortions were legal in New York State.

Essentially, then, the present case and Bigelow both

espouse a similar philosophy—permitting an interference

with First Amendment rights only in the face of a strong

public interest, such as the maintenance of equal racial

and ethnic opportunity. The decisions, are in reality,

harmonious.

Petitioners argue that Willingboro is attempting to

“freeze in” an existing racial balance. Without referring

to the philosophical merits of affirmative action in such a

situation, (see Otero v. New York City Housing Authority,

484 F.2d 1122, 1133 (2 Cir. 1973) ), the obvious response

is that this argument is without factual basis. Willingboro

adopted the ordinance so that its residents would not be

inclined to sell their homes and move out of fear; it does

not prohibit anyone who is financially qualified from pur-

chasing a home anywhere in the Township; it does not re-

strict or inhibit any resident from selling a home and moving

elsewhere. Rather, it only seeks to arrest the fear psychol-

ogy as an impelling reason to sell and replace that with

12 Argument

an unfettered free choice. There is absolutely no direct

correlation (either proven or reasonably conjectured ) be-

tween the maintenance of a racial and ethnic balance and

the ordinance intent. The ordinance affects all equally.

Beside, it should not be assumed that a municipality which

has consistently acted to encourage equal opportunity in

housing now changes its position “in mid-stream.”

Thus, there is no conflict with any decision of this

Court. Indeed, the philosophy behind this decision is

consistent with that espoused in Barrick Realty, Inc. v.

City of Gary, Indiana, 491 F.2d 161 (7 Cir. 1974), which

upheld a similar ordinance aimed at panic selling in an

attempt to halt resegregation. In truth, any other result

reached below would have been inconsistent.

13

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that this Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

MYRON H. GOTTLIEB,

KESSLER, TUTEK AND GOTTLIEB

Counsel for Respondents