Petition for Writ of Certiorari — Hunter v. United States

JUL 25 19/2

Supreme Court of the United States

OcTOBER TERM, 1972

No. 72-146

Bu R. Hunter, d/b/a THE CouRIER, Petitioner,

V.

Untrep States oF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ARTHUR B. HANSON

W. Frank STICKLE, JR.

RatpH N. ALBRIGHT, JR.

888 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Puess or Brzon S. ADAMS PRINTING, Inc., WasHINcTON, D. C.

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I i

en ef

QuEsTIONS PRESENTED

ConsTITUTIONAL Provisions, SvATUTES AND

BecunaTrons [WvonveEp ...........cccccce. ee ae 3

a ie ain od we Ken Wd vw bial oa 4

REASONS FOR GRANTING THE WRIT .............-..000. 6

ERT RETR ROSES Ee eS ee ene 14

Appenpix A: Opinion of the Court of Appeals ...... la

Appenpix B: Opinion of the District Court .......... 26a

Aprenpix C: Judgment of the District Court ....... 39a

Aprenpix D: Department of Housing and Urban De-

velopment Advertising Guidelines for Fair Hous-

ing, effective May 1, 1972, 37 F.R. 6700 (April 1,

By MA Oo voce ccctbberceedsccvcses 4la

AUTHORITIES

CasEs:

Amalgamated Furniture Factories, Inc. v. Rochester

Times Union, Inc., 128 Misc. 673, 219 N.Y.S. 705

EE ob aie eee eek Cen EN tas Genk w cask nase 11

Chicago Joint Board v. Chicago Tribune Co., 307 F.

Supp. 422 (N.D. Ill. 1969), aff’d., 435 F.2d 470 (7th

Cir. 1970) cert. denied, — U.S. — (1971) ........ 10

Cramp v. Board of Public Instruction, 368 U.S. 272

aire tas cadiew p vuu gawk 3 Ap cb0s 8

Goldsmith v. Jewish Press Pub. Co., 118 Mise. 789, 195

eae. ws va s'ng xs evn desea bax 11

ii Index Continued

Page

Grosjean v. American Press Co., 297 U.S. 233 (1936) . 10

Head v. New Mexico Board of Examiners, 374 U.S.

EE da ok Ghia ghd ss RESET cok che x ehks ak 10

Lorain Journal Co. v. United States, 342 U.S. 143

I aiia gues ek be Rev edd wes cans ss 9

Morey v. Doud, 354 U.S. 458 (1967) .............0.. 13

Richards v. United States, 369 U.S. 1, 11 (1962) ...... 7

SraruTes:

I no Fic nc cag u gs nknacuhubanduacasenas 11

eater areaeen 11

I ii 56 5b vb bo onoe v sks ee aw EA 11

ED on abaeaewdenscuVae encowcenenc 2

Oe ee NE es bscae cede vcetsseeeesavess passim

Oe te REED ov np ucnbdscca cdecevscscnvece passim

86 Stat. 3, — U.S.C. — (P.L. 92-225) .............. 11

Recunations AND OTHER AUTHORITIES :

37 F.R. 6700 (April 1, 1972) — C.F.R. — .... 6, 10, 13, 41a

87 F.R. 6156 (March 24, 1972) ............. ccc cease 11

114 Cong. Ree. S. 983 (Daily Ed., Feb. 6, 1968) ...... 8

—

Supreme Court of the United States

OctToBEeR TERM, 1972

No.

Bu R. Hunter, d/b/a THE Courter, Petitioner,

Ns

UniTep States oF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATE COURT OF APPEALS

FOR THE FOURTH CIRCUIT

The petitioner, Bill R. Hunter, who is engaged in the

newspaper publishing business, doing business as The

Courier, respectfully prays that a writ of certiorari

issue to review the judgment and opinion of the United

States Court of Appeals for the Fourth Circuit, entered

in this proceeding on April 27, 1972.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

459 F.2d 205, and appears at Appendix A (p. la, infra).

The opinion of the United States District Court for the

District of Maryland (Judge Roszel C. Thompsen) is

reported at 324 F.Supp. 529, and appears at Appendix

B (p. 26a, infra).

—_— a Ta ee

2 |

JURISDICTION

The judgment of the Court of Appeals was entered on

April 27, 1972. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254/1).

QUESTIONS PRESENTED

.

Whether the advertising proscriptions of Section

804(¢c) of the Civil Rights Act of 1968 (Title VIII Fair

Housing) apply to newspapers in publishing real estate

advertisements, where Title VIII by its terms applies

only to real estate sellers, lessors, brokers, and lending

institutions.

II.

Whether, assuming applicability to newspapers, Sec-

tion 804(c) of the Act is void for vagueness and viola-

tive of the First and Fifth Amendments, in that, being

totally unfamiliar with the advertised dwelling, news-

papers are forced to make instantaneous judgments of

whether certain advertising language or display ‘‘indi-

cates any preference, limitation, or discrimination

based on race, color, religion, or national origin, or an

intention to make such preference, limitation, or dis-

crimination”’.

Ill

Whether Congress may, Consistent with due process

and freedom of speech and the press, on the one hand

allow certain persons to discriminate in real estate

transactions, yet on the other hand seal their lips and

prevent them from indicating an intention to so act. If

Congress may not so legislate, may it subject news-

papers to possible civil contempt if newspapers publish

advertisements from such persons.

—,

IV.

Whether the First Amendment protects speech in a

commercial context.

Vv.

Whether application of Section 804(c) of the Act to

newspapers violates petitioner’s First Amendment

right to operate his press free of governmental control

and interference.

VI.

Whether the advertisements involved herein indi-

eate, on their face, any preference, limitation, or dis-

crimination in violation of Section 804(c) of the Act.

CONSTITUTIONAL PROVISIONS, STATUTES

AND REGULATIONS INVOLVED

Constitutional Provisions:

‘Congress shall make no law... . abridging the free-

dom of speech, or of the press .. .’’ U.S. Const.

Amend. I.

‘No person shall be . . . deprived of life, liberty, or

property, without due process of law...’? U.S. Const.

Amend. V.

Statutes:

Section 804(c) of the Civil Rights Act of 1968, 42

U.S.C. § 3604(¢) :

‘“‘(¢) [It shall be unlawful] to make, print, 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 pref-

erence, limitation, or discrimination based on race,

color, religion, or national origin, or an intention to

make any such preference, limitation, or discrim-

ination.”’

ones a5) 1 ey . +, Sey

PYOE TPAE VE PE EEE SOUR TE OLY

a

4

Section 803(b) (2) of the Civil Rights Act of 1968,

42 U.S.C. § 3603(b) (2) :

“(b) Nothing in section 3604 of this title (other

than subsection (c)) shall apply to... (2) rooms

or units in dwellings containing living quarters oe-

cupied or intended to be occupied by no more than

four families living independently of each other,

if the owner actually maintains and occupies one

of such living quarters as his residence.’’

Regulations:

Department of Housing and Urban Development Ad-

vertising Guidelines for Fair Housing, effective May 1,

1972, 37 F.R. 6700 (April 1, 1972), which appear at

Appendix D (p. 41a, infra).

STATEMENT

Petitioner is the editor and publisher of The Courier,

a weekly newspaper with a circulation of approxi-

mately 29,000 copies distributed in and around Prince

George’s County, Maryland. Like most newspapers,

The Courier carries, and is primarily supported by, ad-

vertisements, including classified advertisements of

dwellings for sale or rent. The paper, in January and

June, 1970, carried two classified advertisements for a

furnished apartment in what was described as a ‘‘ white

home’’.' The person who’ placed the contested adver-

tisements was not made a party to the litigation. He

was an elderly man who resided in Southeast Washing-

1The January 8, 1970 advertisement read:

‘‘FOR RENT—Furnished basement apartment. In Private

white home. Call JO 3-5493.’’

The June 18, 1970 advertisement read :

‘““FURNISHED APARTMENT, well located, clean, quiet. In

white home. Gentlemen only, $17.50 a week. Call JO 3-5493.”’

pyahees By

See a I ed F

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5

ton, D.C. and who, under 42 U.S.C. § 3603(b) (2), en-

joyed the ‘‘Mrs. Murphy’”’ exemption.

Based on these two advertisements, the Attorney

General under 42 U.S.C. § 3613, brought the first action

in this country against a newspaper under the 1968 Act.

In the civil action against the petitioner filed in the

United States District Court for the District of Mary-

land, the Attorney General sought an order enjoining

petitioner from “‘(a) printing, or publishing any notice

or advertisement, with respect to the sale or rental of a

dwelling that indicates any preference, limitation, or

discrimination based on race, color, religion, or national

origin; and (b) failing or refusing to take adequate

affirmative steps to correct the effects of defendant’s

past discriminatory practices.’’

After an abbreviated trial,? the District Court re-

fused to issue an injunction, holding that the Attorney

General failed to show a pattern or practice by the peti-

tioner of resistance to the rights granted by Title VIII.

However, the District Court granted judgment declar-

ing that Section 804(c) applied to newspapers in pub-

lishing real estate advertisements; that such applica-

tion did not offend either the First or Fifth Amend-

ments; and that the involved advertisements were on

their face discriminatory within the meaning of Sec-

tion 804(c). Judgment to this effect was entered by

the District Court on May 14, 1972. On June 7, 1971

petitioner noted his appeal from only those portions of

the District Court’s judgment declaring the validity of

the application of Section 804(c) to newspapers, On

* Except for petitioner’s testimony on his newspaper’s policy in

this area and facts surrounding his newspaper’s receipt of the

questioned advertisement, all essential facts were stipulated to by

the parties through counsel.

om

April 27, 1972, the Court of Appeals affirmed the Dis-

trict Court’s declaration that newspapers were constitu-

tionally covered by the advertising proscriptions of

Section 804(¢) and that the advertisements were viola-

tive of that Section.

After the Court of Appeals decision herein, the De-

partment of Housing and Urban Development, on May

1, 1972, made effective its Advertising Guidelines for

Fair Housing, 37 F.R. 6700 (April 1, 1972)—C.F.R.—

(App. A. p. 41a, infra). By these guidelines, HUD at-

tempts to outline the many nuances and subtleties to be

avoided in real estate advertising. By virtue of the

lower courts’ interpretation of Section 804(c), these

guidelines apply to newspapers and it is newspapers

which are thereby effectively made the enforcement arm

of the government in the government’s efforts to elim-

inate racially suggestive language from real estate ad-

vertising.

REASONS FOR GRANTING THE WRIT

This is a case of first impression in this Court. In-

deed, it is the first case ever brought under Title VIII

of the Civil Rights Act of 1968 against a newspaper for

printing what the Justice Department believes to be a

racially discriminatory real estate advertisement.

The decisions of the District Court and Court of Ap-

peals in this case stand for the proposition that a news-

paper, which has absolutely no connection with, or

knowledge of, the advertised property, publishes a real

estate advertisement at its peril under Title VIII. If

the advertisement is later found to be in conflict with

the vague outlines of Section 804(c), 42 U.S.C. $3694

(c) or the HUD advertising guidelines, 37 F.R. 6700

(April 1, 1972), the newspaper is exposed to a possible

memmetmonegpreanny ts MEE CES

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7

lawsuit for injunctive relief with all the concomitant

major expenses and difficulties associated with litiga-

tion. This exposure of newspapers exists notwithstand-

ing the right of the involved property owner to restrict

his premises to only those persons with whom he

chooses to do business. This exposure exists notwith-

standing the absence of action taken against the prop-

erty owner. And, this exposure exists notwithstanding

the patent unfairness of converting a newspaper into

the enforcement section of the Civil Rights Division of

the Justice Department by requiring a newspaper to

make an almost instantaneous judgment on each sub-

mitted real estate advertisement based on the vague cri-

teria set forth in the statute and HUD guidelines.

It is respectfully submitted that Congress did not

intend such a drastie interpretation of the advertising

proscription of Section 804(c). To hold that Section

804(c) applies to newspapers would violate funda-

mental principles of fairness and would offend the First

Amendment.

A. SECTION 804(C), 42 U.S.C. § 3604(C) DOES NOT APPLY TO

NEWSPAPERS.

In the District Court and in the Court of Appeals,

petitioner urged that Section 804(c) should be read in

context with the other provisions of Title VIII of the

Civil Rights Act of 1968, which clearly demonstrate that

Congress intended coverage of only owners, brokers,

and lending institutions. As this Court stated in Rich-

ards v. United States, 369 U.S. 1, 11 (1962) :

‘“‘We believe it fundamental that a section of a

statute should not be read in isolation from the con-

text of the whole act, and that in fulfilling our re-

sponsibility in interpreting legislation, ‘we must

not be guided by a single sentence or member of a

7

sentence, a look to the provisions of the

whole law to its object and policy.’’’ (Expla-

nation is original).

Yet, both courts below took an isolated view of See-

tion 804(c), and held that it reaches to ‘‘anyone’’ who

publishes a real estate advertisement. In so holding,

the courts failed to recognize that by its terms, Title

VIII covers only dwelling owners, brokers, and lending

institutions. Moreover, the sponsors of the legislation,

in discussing the parameters of Title VIII coverage,

specified that only brokers, property owners, managers,

and others who ‘participate’ in the sale, rental, or

financing of housing were regulated by the Act. 114

Cong. Ree. 8. 983 (Daily Ed., Feb. 6, 1968).

B. IF SECTION 804(C) APPLIES TO NEWSPAPERS, SUCH APPLI-

CATION VIOLATES THE FIRST AND FIFTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

1. Freedom of the Press

In rejecting petitioner’s arguments that the First

Amendment bars application of section 804(c) to news-

papers, the District Court and the Court of Appeals

demonstrated a callous insensitivity to the practical

problems of the day-to-day operation of the press. In

holding Section 804(¢) constitutional in the face of

petitioner’s free press arguments, the courts rested

their respective decisions on three basic points: (1) that

the involved advertisements are unprotected commer-

cial speech; (2) that enjoining a newspaper from print-

ing such unprotected speech works no unconstitutional

free press infringement on a newspaper; and (3) that

a newspaper can easily distinguish between permissible

and impermissible real estate advertising under section

804(c).

—— sistent tiiinnisind

9

Viewing this controversy within the context of the

commercial—non-commercial speech dichotomy does

not place this case in its proper First Amendment per-

spective. What petitioner attacked in the courts below

was Congress’ action in placing the burden of instan-

taneous real estate advertising judgments on the news-

paper. Under the courts’ interpretation of Section

804(¢), the newspaper publishes submitted advertising

at its peril. It is forced to make judgments about an

advertiser’s intention on pain of suffering protracted

litigation with the Justice Department. If its judg-

ment is in error, even good faith error, the court has

the power to enjoin it from violating Section 804(c).

As the Court of Appeals suggested in its decision, (Ap-

pendix A, p. 23a, infra) this injunctive power may

freely issue against the press.

It is one thing to recognize that newspapers are, like

other businesses, subject to reasonable, non-discrimina-

tory laws, and quite another to use that recognition as

a basis for permitting and, indeed, encouraging injunc-

tions against newspapers for carrying what has been

denominated, on an after-the-fact basis, discriminatory

real estate advertising. After all, an injunction runs to

an entire edition. If an edtion of an enjoined pub-

lisher is tainted by a discriminatory advertisement, re-

gardless of how the advertisement came to be pub-

lished, the newspaper publisher is exposed to the im-

possible dilemma of allowing the edition to be distrib-

uted and exposing himself to contempt, or withdrawing

the edition and suffering the economic consequences.

This is an entirely different situation from the one

involved in Lorain Journal Co. v. United States, 342

U.S. 143 (1951), where a newspaper was enjoined from

accepting or rejecting advertising in violation of the

— ERR SPL REFS OL EA BE

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anti-trust laws. Likewise, this case is different from

the injunction in Head v. New Mexico Board of Exam-

iners, 374 U.S. 424 (1963), where a newspaper and

radio station were enjoined by a state court from ac-

eepting advertisements from optometrists containing

prices in violation of state law.’ In both Lorain and

Head, the newspaper’s conduct in complying with the

injunction was quite simple: in Lorain, the newspaper

was required to eliminate its policy of refusing adver-

tisements from those persons who advertised on a local

radio station; and in Head, the newspaper was en-

joined from accepting advertising containing prices of

eyeglasses. In both cases, compliance on the part of the

newspaper did not involve the exercise of judgment as

to whether a subject advertisement came within the

terms of the injunction or the law. In the instant case,

however, the newspaper at its peril, is forced to glean

an advertiser’s discriminatory intent with only the

vague HUD guidelines to assist him. It is the news-

paper which is to decide whether the advertisement con-

tains improper ‘‘catchwords’’, symbols implying or

suggesting race, colloquialisms suggesting race, or di-

rections to location of property, to choose only a few

possible examples. See HUD Guidelines, Appendix D

(p. 41a, infra.)

Placing the newspaper in this position as the Justice

Department’s enforcement ‘arm creates a subtle and

impermissible inroad on a ‘‘free and untrammeled’”’

press, Grosjean v. American Press Co., 297 U.S. 233

(1936), and also significantly departs from the ‘thistory

of disassociation’”’ that exists between the government

and the press. Chicago Joint Board v. Chicago Tribune

8 No First Amendment question was properly presented by appel-

lants in Head, and this Court, therefore, refused consideration of

the free press arguments. 374 U.S. at 432, n.12.

ay Pea

pups FS Be

11

Co., 307 F.Supp. 422 (N.D. Ill. 1969), aff’d., 435 F.2d

470 (7th Cir. 1970), cert. denied, — U.S. — (1971). It is

as difficult and impossible for a publisher to make value

judgments on whether an advertisement is discrimina-

tory or manifests an advertiser’s discriminatory intent,

as it is for a publisher to judge whether a product ad-

vertiser’s representations are true or not misleading.

Yet, either by statute or judicial decision, newspapers

are relieved of responsibility for what is now commonly

referred to as false advertising. See, e.g., Goldsmith v.

Jewish Press Pub. Co., 118 Mise. 789, 195 N.Y.S. 37

(1922); Amalgamated Furniture Factories, Inc. v.

Rochester Times Union, Inc., 128 Mise. 673, 219 N.Y.S.

705 (1927) ; Federal Trade Commission Act, 15 U.S.C.

§§ 52, 53(b), 54(b). These decisions and statutory ex-

emptions all rest on the unstated premise that it would

be unreasonably burdensome to require newspapers, on

pain of penalty, to sift from their editions those adver-

tisements which a publisher might conceivably think

were misleading. Similarly, forcing newspapers to de-

cide, on pain of protracted litigation and possible civil

contempt, what advertisements under the Fair Housing

provisions of the 1968 Civil Rights Act manifest an

advertiser’s discriminatory intent is plainly oppressive.

In the field of much social legislation, the unwitting

conversion of the private press into quasi-enforcement

agencies of the government has apparently gained wide

acceptance among many state and congressional legis-

lators. In short, it is in vogue and represents an easy

and quick way for the government to enforce such legis-

lation. See, e.g., newspaper responsibility for accept-

ing certain federal campaign advertising, Federal Elec-

tion Campaign Act of 1971, 86 Stat. 3, — U.S.C. §—,

and regulations promulgated thereunder, 37 F.R. 6156,

6157-58 (March 24, 1972), 11 C.F.R. —. Petitioner

a

12

urges that this Court must announce whether such legis-

lation is constitutionally valid, and, if so, what are the

limits of such legislative power. This case presents the

vehicle for such a therapeutic pronouncement.

2. Due Process

Under Section 803(b)(2), 42 U.S.C. § 3603(b) (2),

Congress has set forth the national policy that one

who owns what is now widely known as a ‘‘Mrs. Mur-

phy”’ dwelling may for any reason refuse to rent to

anyone. It does not matter that such refusal rests on

racial, religious, or ethnic grounds. According to See-

tion 803(b) (2), that owner may not advertise his inten-

tion to exercise that right. In short, Congress has stated

that certain individuals may discriminate in the sale or

rental of dwellings, but they may not announce their

intention to so discriminate.

Resting its reasoning on Congress’ power to prohibit

such mere commercial advertising because that adver-

tising may reasonably be thought to have a harmful ef-

fect on the general aims of the Act, the Court of Ap-

peals held that the advertising prohibitions comported

with due process. But there is no rational basis, we

submit, to forbid a homeowner from communicating his

intention to exercise his section 803(b) right to discrim-

inate. In fact, the mere grant of the ‘‘Mrs. Murphy”’

exemption defeats the ‘“‘general aims”’ of the Act. Yet

Congress saw fit to allow that exemption.

Furthermore, not only is ‘‘Mrs. Murphy’’ exempted

from the Act, but by the very terms of Section 803(b)

(1) (B), 42 US.C. § 3603(b) (1) (B), an advertiser may

place a discriminatory advertisement and allow it to

run until he receives ‘“‘notice’’. No where is this ‘‘no-

tice’’ provision defined or explained. What notice?

we

13

By whom? For what purpose? When? Petitioner

raised these questions in both Courts, but they went un-

answered. It would appear that an advertiser is not

subject to a Justice Department civil action for dis-

eriminatory advertising until he receives this unspeci-

fied and undefined ‘‘notice’’. However, according to

the courts below, a newspaper is exposed at anytime to

an Attorney General action. This unjustifiable discrim-

ination against newspapers is a patent violation of due

process. See e.g., Morey v. Doud, 354 U.S. 458 (1967).

Finally, a rapid scanning of the generalized and

vague proscriptions found in Section 804(c) of the Act

ean lead only to the conclusion that men of common in-

telligence would be required to guess at its meaning and

to differ as to its proper application. As such, this Sec-

tion denies to petitioner basic due process of law.

Cramp v. Board of Public Construction, 368 U.S. 272

(1961). The HUD Advertising Guidelines (Appendix

D, p. 41a, infra) which, if anything, are more vague and

indefinite than Section 804(c), do nothing to obviate

this constitutional infirmity and point up the impossi-

bility of assigning ascertainable standards to the gen-

eral and vague statutory language.

C. THE ADVERTISEMENTS DO NOT ON THEIR FACE VIOLATE

SECTION 804(C).

The Court below found that the contested advertise-

ments indicated a preference for a white tenant and

were intended by the advertiser to do so. Whether the

advertisement indicates a preference or an intention to

make a preference must be determined from the four

corners of the advertisement, not from an after-the-fact

subjective examination of the advertiser’s motives.

Using this test, it is submitted that the advertise-

ments in question are not discriminatory on their face.

TAR QT NE ATE LL TS ELE tT

naa/]

14

They do not indicate that the owner prefers whites or

that the owner intends to discriminate against blacks.

Instead, the advertisements state the fact that the prop-

erty advertised is occupied by whites. The reference to

race in the advertisements is a statement of fact and

cannot reasonably be characterized as a discriminatory

statement. It is not unreasonable to assume that pro-

spective tenants desire to know the race of the occu-

pants in a private home in which the owners lease one

or two rooms. Such a landlord-tenant relationship in a

small, private boarding house is significantly different

from that relationship in a large, metropolitan high-

rise apartment. The relationship is obviously one of

closeness and intimacy. Indeed, the ‘‘Mrs. Murphy”’

exemption was provided in recognition of this close

relationship.

In circumstances such as these, statements of mere

fact regarding the race of the owners of the boarding

house is neither unreasonable nor an indication of any

preference in violation of Section 804(c). Accordingly,

publication of the advertisement by the newspaper does

not offend that section and the lower courts erred as a

matter of law on this issue.

CONCLUSION

The petition for a writ of certiorari should be

granted. .

Respectfully submitted,

ARTHUR B. HANSON

W. Frank STICKLE, JR.

RaupH N. ALBRIGHT, JR.

888 Seventeenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 71-1643

Unitep States or America, Appellee,

versus

Bit R. Hunter, d/b/a The Courier, Appellant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Roszel C.

Thomsen, District Judge.

(Argued November 29, 1971 Decided April 27, 1972)

Before Sosetorr, Senior Circuit Judge, and Craven and

Fretp, Circuit Judges.

Arthur B. Hanson (W. Frank Stickle, Jr., Ralph N.

Albright, Jr., on brief) for Appellant, and Frank E.

Schwelb, Attorney, Department of Justice, (David L.

Norman, Assistant Attorney General, Walter W. Barnett,

Robert J. Wiggers, Attorneys, Department of Justice, and

George Beall, United States Attorney, on brief) for

Appellee.

Sosetorr, Senior Circuit Judge:

This case presents the first oceasion for a federal court

of appeals to consider certain important issues in the appli-

cation and enforcement of Title VIII (Fair Housing) of

the Civil Rights Act of 1968.

Appellant Bill R. Hunter is editor and publisher of The

Courier, a weekly newspaper with a circulation of 29,000,

chiefly in Prince George’s County, Maryland. The Courier

carries classified advertisements prepared by persons offer-

ing dwellings for sale or rent. In January and again in

June, 1970, The Courier published a classified advertise-

2a

ment tendering for rent a furnished apartment in what

was denominated a ‘‘white home.’’*

Contending that such advertisements violated § 804(c)

of the Civil Rights Act of 1968, 42 U.S.C. § 3604(c),” the

Attorney General instituted the present action against

Hunter to obtain an order enjoining The Courier’s further

publication of advertisements violative of § 3604(c). The

Attorney General also prayed for ‘‘such additional relief

as the interests of justice may require.”’

Defending against the suit, Hunter disputed the Attor-

ney General’s interpretation of § 3604(c). The publisher

argued that the section was not intended to apply to a

newspaper which published such advertisements; that it

would be unconstitutional if so applied; and that, in any

event, the statute was not violated by an advertisement

specifying that the apartment was located in a ‘‘white

home.’’

After a trial, the District Judge denied the Govern-

ment’s request for an injunction, but did grant it a favor-

1 The classified advertisement on January 8, 1970 read: |

For RENt—Furnished basement apartment. In private white

home. Call JO 3-5493.

The ad on June 18, 1970 read:

FURNISHED APARTMENT, well located, clean quiet. In white

home. Gentlemen only. $17.50 a week. Call JO 3-5493.

Both ads were placed by an elderly, retired man who lived in

southeast Washington, D. C.

2§ 3604 Discrimination in the sale or rental of housing

(c) [It shall be unlawful] to make, print, or publish, or cause

to be made, printed or published, any notice, statement or ad-

vertisement, with respect to the sale or rental of a dwelling

that indicates any preference, limitation, or discrimination

based on race, color, religion or national origin, or an in-

tention to make any such preference, limitation, or discrimina-

tion.

x ost

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3a

able judgment declaring that § 3604(c) was intended to

apply to newspapers; was constitutional in its ban on dis-

criminatory advertisements, including those published by

newspapers; and was contravened by the advertisements

published in The Courier. From these adverse rulings

Hunter appeals.

I

Appellant raises essentially the same arguments he un-

successfully presented to the. District Court. Perceiving

no more merit in appellant’s contentions than did the

judge below, we affirm the District Court’s declaratory

judgment.

A. Section 3604(c) Prohibits the Publication of Discrimi-

natory Housing Advertisements by Newspapers

Hunter first takes the position that § 3604(c) was not

intended to prevent newspapers from publishing classified

advertisements indicating a racial or other statutorily pro-

scribed preference in the sale or rental of a dwelling. We

reject this assertion, for we find Congress clearly intended

that very prohibition.

Legislative intent is first to be gathered from the plain

meaning of the words of the statute. It is presumed that

statutory language is used in its ordinary sense, with the

meaning commonly attributed to it, unless the contrary

clearly appears. Caminetti v. United States, 242 U.S. 470,

485-486 (1917). The section here under examination pro-

vides on its face no exemptions in favor of newspapers.

Rather, it uses precisely the language which would lead

the ordinary reader to conclude that newspapers are to be

brought within its purview. The section provides it shall

be unlawful ‘‘to make, print, publish, or cause to be made,

printed, or published’’ any advertisement prohibited by

the Act. In the context of classified real estate advertis-

ing, landlords and brokers ‘‘cause’’ advertisements to be

<< a

; 7

printed or published and generally newspapers ‘‘print’’

and ‘‘publish’’ them. Since each phrase in a statute must,

if possible, be given effect, United States v. Menasche, 348

U.S. 528, 538-39 (1955), both landlords and newspapers are

within the section’s reach.

Hunter attempts to draw an analogy to Brush v. San

Francisco Newspaper Printing Co., 315 F. Supp. 577 (N.D.

Cal. 1970) (appeal pending, No. 26,666, 9th Cir.), in which

it was held that § 704(b) of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-3, does not include newspapers in its pro-

seription of discriminatory employment advertisements.

Brush, however, is inapposite, because the section there

involved is fundamentally different from our § 3604(c) in

that the 1964 Act specifically lists the persons regulated:

‘an employer, labor organization, or employment agency.”’

The Brush court held that a newspaper was none of these

and that, under the maxim expresso unius est exclusio

alterius, it did not fall within the Act’s restriction. More-

over, Brush relied on a clear statement in the legislative

history of the 1964 Act that newspapers were not required

to exercise any control or supervision over the advertise-

ments they published. In contrast to the section construed

in Brush, no restriction in scope appears on the face of

§ 3604(c). Unlike other sections of the Fair Housing

title? § 3604(c) does not provide any specific exemptions

or designate the persons covered, but rather, as the court

below noted, applies on its face to ‘‘anyone’”’ printing or

publishing illegal advertisements. Brush is, therefore, not

persuasive in interpreting the instant section.

Congressional intent disclosed by the meager legislative

history concerning § 3604(c) does not contradict our view

of the unambiguous language chosen by the draftsmen of

2 E.g., §§ 803(b), 805 and 807 (42 U.S.C. §§ 3603(b) 3605 and

3607).

__ — aatnneniaaiaienmnaliiaionanl

o:)

the section.* Indeed there is some evidence that the pub-

lication of discriminatory classified advertisements in

newspapers was precisely one of the evils the Act was

designed to correct. See Hearings on S. 1358, 8. 2114 and

S. 2280 before the Subcommittee on Housing and Urban

Affairs, Senate Committee on Banking and Currency, 90th

Cong. Ist Sess. at 386, 388 (1967). (George Meany’s tes-

timony, complaining of discriminatory housing advertise-

ments in newspapers.)

We therefore agree with the District Court that the

congressional prohibition of discriminatory advertise-

ments was intended to apply to newspapers as well as any

other publishing medium.

B. The Constitution Does Not Prohwbit the Application of

§ 3604(c) to Newspapers

Hunter next asks us to overturn § 3604(c) as violative

of the First and Fifth Amendments of the United States

Constitution.

1. Freedom of the Press

Noting that § 3604(c) limits advertising an intent to

discriminate in the sale or rental of a dwelling only in a

* Title VIII was added by the Senate as an amendment to H.R.

2516, the civil rights bill passed by the House. The Senate amend-

ment was a revision of S. 1358, an earlier fair housing bill on

which hearings had been held in 1967. See Hearings Before the

Subcommittee on Housing and Urban Affairs of the Senate Comm.

on Banking and Currency, 90th Cong. 1st Sess. (1967). Since

the Committee took no action on S. 1538, the bill did not reach

the floor and no explanatory reports were published. Because

Title VIII was passed as an amendment on the Senate floor, other

than the 1967 Senate Committee hearings, the legislative history

of the title consists mainly of the limited debates on the floors

of the respective houses of Congress. The genesis of Title VIII

is traced in B. Schwartz, Statutory History of the United States:

Civil Rights, 1629-1632 (1970) ; Dubofsky, Fair Housing: A Legis-

lative History and a Perspective, 8 Washburn L.J. 149 (1969).

— MEE SERIA ALE LA LOE LEER NETL ERBE ESE SEDER

Rees APRESS ELE OR

6a

commercial context and not in relation to the dissemination

of ideas, the District Court held that the statute does not

contravene the First Amendment, and hence that a court

might constitutionally enjoin a newspaper’s printing of

classified advertisements which violate the Act.*

The court’s conclusion is supported by an unbroken line

of authority from the Supreme Court down which dis-

tinguishes between the expression of ideas protected by

the First Amendment and commercial advertising in a

business context.° It is now well settled that, while ‘‘free-

dom of communicating information and disseminating

opinion’’ enjoys the fullest protection of the First Amend-

ment, ‘‘the Constitution imposes no such restraint on

government as respects purely commercial advertising.”’

Valentine v. Chrestensen, 316 U.S. 52, 54 (1942). See

Breard v. City of Alexandria, 341 U.S. 622, 641-645 (1951);

New York State Broadcasters Ass’n, Inc. v. United States,

414 F. 2d 990, 998-99 (2nd Cir. 1969), cert. denied, 396 U.S.

1061 (1970); Banzhaf v. FCC, 405 F. 2d 1082, 1099-1103

(D.C. Cir. 1968), cert. denied, sub. nom. Tobacco Institute,

Inc. v. FCC, 396 U.S. 842 (1969) ; Capital Broadcasting Co.

v. Mitchell, 333 F. Supp. 582, 40 U.S.L.W. 2218 (D. D.C.

Oct. 20, 1971), (Three-judge court), aff’d, sub. nom. Capital

Broadcasting Co. v. Acting Attorney General, — U.S. —,

(No. 71-891 3/27/72).

5 Since the institution of the present suit, one other district

court, in an unreported decision, has specifically upheld the con-

stitutionality of § 3604(c) as applied to newspapers. Holmgren

v. Little Village Community Reporter, No. 70-C-2236 (N.D. IIL.

Jan. 14, 1971).

*Professor Emerson defines the ‘‘commercial sector’’ as

“‘roughly”’ embracing ‘‘the production and exchange of goods and

services for profit, as distinct from the production or exchange of

ideas on political, religious, artistic and similar matters.’’ T.

Emerson, The System of Freedom of Expression 414 (1970). See

also Note, Preedom of Expression in a Commercial Context, 78

Harv L. Rev. 1191, 1192, 1194-95 (1965).

S>~7~—~”™_ EY PAT TA IE:

7a

Relying on this difference, district courts have uniformly

held that § 3604(e), banning blockbusting practices, does

not contravene the First Amendment. United States v.

Mitchell, 327 F. Supp. 476, 486 (N.D. Ga. 1971); United

States v. Bob Lawrence Realty Inc., 313 F. Supp. 870, 872

(N.D. Ga. 1970); United States v. Mintzes, 304 F. Supp.

1305, 1312 (D. Md. 1969).

The publisher’s response to the cases distinguishing be-

tween commercial advertising and other forms of expres-

sion is that the distinction is ‘‘meaningless in the context

of the newspaper publishing business’’ because the revenue

newspapers derive from advertising makes possible the

publication of the rest of the paper. But it has been held

that a newspaper will not be insulated from the otherwise

valid regulation of economic activity merely because it also

engages in constitutionally protected dissemination of

ideas. Lorain Journal Co. v. United States, 342 U.S. 143,

155-156 (1951); Associated Press v. United States, 326

U.S. 1, 6-7 (1945). While it is true, as Hunter contends,

that ‘‘a newspaper can be silenced as easily by cutting of

its source of funds, as it can be by enjoining its publica-

tion,’’ no such threat is raised by the Act’s prohibition of

racially discriminatory advertisements. Non-discrimina-

tory advortisements are still permitted. Since the Act also

bars private publication of discriminatory advertisements,

an advertiser has no incentive to abandon his regular use

of newspapers to publicize his offer to sell or rent. We

therefore doubt that the Act will deprive a newspaper of

any revenue. Thus, the statute before us, unlike the

schemes overturned in Grosjean v. American Press Co.,"

and United Interchange, Inc. v. Harding; cited by Hunter,

7297 U.S. 283 (1936).

$154 Me. 128, 145 A.2d 94 (1958).

~<—— = 22 GER TIO FEL PS FRE PIES ERR a PEELE I, ET

a

8a

will not adversely affect the valid dissemination of opinion

or information.®

Congressional regulation of commercial advertising is

not barred by Near v. Minnesota, 283 U.S. 697 (1931),

which condemned unlawful prior restraints on free speech.

The Supreme Court and lower courts have frequently re-

jected First Amendment attacks on injunctions when the

enjoined conduct or expression was not fully protected by

the First Amendment. Lorain Journal Co. v. United

States, supra. (unanimous opinion upholding injunction

prohibiting publisher from accepting or rejecting commer-

cial advertisements of others in violation of the antitrust

laws.) Gompers v. Bucks Stove & Range Co., 221 U.S.

418, 439 (1911) (upholding injunction against union news-

paper promoting boycott). See also Head v. New Mexico

Board of Examiners, 374 U.S. 424, 432 n. 12 (1963) (in-

junction restraining newspaper from publishing optome-

trist’s advertising affirmed against attack based on the due

process clause). In concluding that an injunction under

§ 3604(c) would not violate the First Amendment, we have

also considered Hunter’s recital of possible economic dam-

ages to a publishing business operating under such a court

order. We think his fears of economic consequences are

overdrawn. Furthermore, as a matter of law, his argu-

ment is answered by the Supreme Court’s unanimous af-

firmance of injunctive relief against a newspaper in Lorain

Journal Co. v. United States, supra.

® Contrary to the contentions in Hunter’s brief, nothing in the

statute or the relief requested by the Attorney General prohibits

a newspaper from publishing news accounts concerning racial dis-

crimination in housing, or criticizing the Government’s enforce-

ment of the Fair Housing Title, or editorially advocating repeal

of the Act. Cf. Capital Broadcasting Co. v. Mitchell, 333 F. Supp.

582, 40 U.S.L.W. 2218 (D. D.C. Oct. 20, 1971), aff’d, sub nom.

Capital Broadcasting Co. v. Acting Attorney General, — U.S. —,

(No. 71-891 3/27/72). Only publication of advertisements which

indicate a discriminatory preference for certain customers in

seeking a buyer or a renter of a dwelling—a commercial transac-

tion—is proscribed.

9a

Finally, a newspaper publisher can easily distinguish

between permissible and impermissible advertisements in

discharging his duty to reject those that violate § 3604(c).

In contrast to ‘‘printer’s ink’’ statutes which make false

advertising a crime, and which either legislatively or judi-

cially exempt newspapers, see generally Note, Regulation

of Advertising, 56 Colum L. Rev. 1018 (1956), a publisher

can readily determine from the face of an advertisement

whether it is intended to express a discriminatory prefer-

ence. However the language of the advertisement is

couched, the purpose of an advertiser who wishes to pub-

lish an advertisement in violation of the Act is to com-

municate his intent to discriminate and a newspaper pub-

lisher can divine this intent as well as any of his readers.

Accordingly application of § 3604(c) to newspapers does

not contravene freedom of the press protected by the First

Amendment.

2. Due Process

Hunter also argues than banning a newspaper’s publica-

tion of discriminatory housing advertisements violates a

publisher’s rights under the due process clause. He con-

tends syllogistically that, since a private, single-family

homeowner, and a ‘‘Mrs. Murphy”’ landlord are permitted

by § 3603(b) to effectuate their discriminatory preferences

by refusing to sell or rent certain dwellings to a particular

racial, religious, or ethnic group,’ they must also, either as

10 Section 3603(b) (1) lists a number of circumstances by which

a ‘‘single-family house sold or rented by an owner’’ will be ex-

empted from the Act’s prohibition of refusing to sell or rent a

dwelling because of one’s color, race, religion or national origin.

Section 3603(b(2) exempts ‘‘Mrs. Murphy’s’’ now renowned

roominghouse, i.e., ‘‘rooms or units in dwellings containing living

quarters occupied or intended to be occupied by no more than

four iamilies living independently of each other, if the owner actu-

ally maintains and occupies ‘‘one of such living quarters as his

residence.”’

It appears that the rooms in the ‘‘private white home’’ offered

for rent in the advertisements published by The Courier qualify

the owner for the Mrs. Muryhy exemption.

EBVO RR SES RRR aE OR HE EP

10a

a constitutional right or as a matter of statutory construc-

tion, be entitled to communicate in commercial advertising |

their intent to so discriminate. Therefore, the argument

goes, if those persons may communicate their discrimina-

tory intent, it is a violation of equal protection of the laws,

cf. Bolling v. Sharpe, 347 U.S. 497, 500 (1954), or alterna-

tively a deprivation of liberty or property without due

process of law for Congress to deprive newspapers of the

right to publish the same lawful communications.

We reject Hunter’s conclusion because we cannot accept

the premises upon which he rests his syllogism. While the

owner or landlord of an exempted dwelling is free to in-

dulge his discriminatory preferences in selling or renting

that dwelling, neither the Act nor the Constitution gives

him a right to publicize his intent to so discriminate.

Clearly, there is no such statutory right. Section 3603(b)

establishes an exemption only from the prohibitions set |

forth in § 3604(a) (b) and (d). The Act specifically states |

that subsection (c) of § 3604 shall apply to sellers or lessors |

of dwellings even though they are otherwise exempted by

§ 3603(b). The draftsmen of the Act could not have made

more explicit their purpose to bar all discriminatory ad-

vertisements, even those printed or caused to be printed

by persons who are permitted by § 3603(b) to discriminate

in selling or renting. During the House debate on the Fair

Housing Title, Representative Celler, a supporter of the

bill, said:

If one {otherwise exempted by § 3603(b)] advertised in

a mass media communication like a newspaper using

discriminatory material, then one would come within

the purview of the fair housing title.

114 Cong. Rec. 6490 (March 14, 1968).

Nor is there any constitutional requirement that sellers

or lessors of otherwise exempted dwellings be permitted

to advertise their intent to discriminate. As established

lla

above, the First Amendment is not violated by a regulation

appertaining only to commercial activity such as the pub-

lication of an advertisement offering to sell or rent a dwell-

ing. If the prohibition of discriminatory advertisements is

to be struck down, it must be because it is violative of the

due process clause. Regulation of commercial advertising

has withstood due process attack when the end is legitimate

and reasonably related to the means employed E.g., Semler

v. Oregon State Board of Dental Examiners, 294 U.S. 608,

610 (1935) (upholding statute forbidding dentists from

advertising prices.) Capital Broadcasting Co. v. Mitchell,

supra, (sustaining a ban on cigarette commercials adver-

tising on radio and television.)

The Fair Housing Title was designed to provide fair

housing throughout the nation and is a valid exercise of

congressional power under the Thirteenth Amendment to

eliminate badges and incidents of slavery. United States v.

Mintzes, 304 F.Supp. 1305, 1312-13 (D. Md. 1969); Brown

v. State Realty Co., 304 F.Supp. 1236, 1240 (N.D. Ga. 1969).

See Jones v. Alfred Mayer Co., 392 U.S. 409, 439-440 (1968).

In combating racial discrimination in housing, Congress is

not limited to prohibiting only discriminatory refusals to

sell or rent. Widespread appearance of discriminatory ad-

vertisements in public or private media may reasonably be

thought to have a harmful effect on the general aim of the

Act: seeing large numbers of ‘‘white only’’ advertisements

in one part of a city may deter non-whites from venturing

to seek homes there, even if other dwellings in the same

area must be sold or rented on a non-discriminatory basis.

Considerations of this nature are highlighted by the Fifth

Circuit’s model decree in United States v. West Peachtree

Tenth Corp., 437 F.2d 221, 229 (5th Cir. 1971). There the

operators of an apartment complex were not only enjoined

from violating § 3604(c), but also directed to include affirm-

ative fair house statements in all advertising, both in the

defendant’s own pamphlets and brochures, and in news-

papers published by others.

rea PERRET GPS SURG ONG PIN Tog pee nese Oh Gd Ce Rew a cla oe ca Lae ane mL Tera: eat. ree, eet

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12a

Thus Congress has acted within the bounds of its consti-

tutional power in prohibiting all discriminatory advertis-

ing of any dwelling, notwithstanding that some dwellings

are otherwise exempted from the Act. If an individual ad-

vertiser has no constitutional or statutory right to circu-

late a discriminatory housing advertisement, a newspaper

can stand in no better position in printing that unlawful

advertisement at the individual’s request. See Head v. New

Mexico Board of Examiners, 374 U.S. 424, 432 n.12 (1963).

Hunter’s finespun argument falls, then, because his syllo-

gism is without a solid foundation.

Moreover, even if private homeowners and ‘‘Mrs. Mur-

phy’’ landlords were constitutionally or statutorily ex-

cluded from § 3604(c)’s coverage—and they are not—neith-

er due process nor equal protection is abridged by a statute

forbidding newspapers from carrying discriminatory hous-

ing advertisements. See Railway Express Agency Inc. v.

New York, 336 U.S. 106 (1949) (prohibition against vehi-

cles advertising another company’s goods held valid against

due process and equal protection attack). Newspapers have

a far more widespread coverage than privately circulated

advertisements, magnifying the already mentioned dele-

terious effect discriminatory advertisements might have on

the congressional purpose in the Fair Housing Title. In

holding constitutional regulation of advertising in another

context, the Supreme Court has said:

Evils in the same field may be of different dimensions

and proportions, requiring. different remedies. Or so

the legislative might think. Or the reform may take

one step at a time, addressing itself to the phase of the

problem which seems most acute to the legislative

mind. The legislature may select one phase of one field

and apply a remedy there, neglecting the others. The

prohibition of the Equal Protection Clause goes no

further than the invidious discrimination. We cannot

say ~~ point has been reached here. (Citations omit-

ted.

—

13a

Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955) See

Capital Broadcasting Co. v. Mitchell, supra. Even if the

ban on discriminatory housing advertisements applied only

to pubic media, we hold such a classification to be reason-

able and within the discretion of Congress.

C. Advertisements Stating that Apartments are in

a ‘‘White Home’’ Indicate a Racial Preference,

And Therefore are Prohibited by § 3604(c).

To the ordinary reader the natural interpretation of the

advertisements published in The Courier is that they in-

dicate a racial preference in the acceptance of tenants.”

Indeed, the indication of a racial limitation is precisely

what the writer of the advertisements published in The

Courier intended when he used the words ‘‘white home.’’

He later explained his reason for including the phrase in

his ad: ‘‘It’s really a kindness to colored people. There’s

no use making them * * * come here when I’m not going to

rent to them.’’ Accordingly, the District Court correctly

held that the two advertisements published by The Courier

violated the Act.

Any other interpretation of the advertisements would

severely undercut the objectives of the legislation. If an

advertiser could use the phrase ‘‘white home’’ in substitu-

tion for a clearly proscribed ‘‘white only,’’ the statute

would be nullified for all practical purposes. We cannot con-

done an interpretation which would circumnavigate congres-

sional intent in this remedial statute designed to eliminate

the humiliation and social cost of racial discrimination. See

Nesmith v. Young Men’s Christian Association of Raleigh,

11 The Secretary of Housing and Urban Development has pro-

mulgated Advertising Guildelines for Fair Housing, 37 F.R. 6700

(April 1, 1972), which explicitly provide not only that news-

papers are subject to the Act, but also that a phrase like ‘‘ white

home’’ is presumed discriminatory.

Dn Cat Race . LEER RED RON EE PIRES . 5

—

l4a

397 F.2d 96, 100 (4th Cir. 1968); Miller v. Amusement En-

terprises, 394 F.2d 342 (5th Cir. 1968).

For the reasons above state in sections A, B, and C of this

part of the opinion, we affirm the District Court’s grant of

a declaratory judgment.

II

Although we uphold the District Court’s judgment with

respect to § 3604(c), we are constrained to comment on the

approach taken by the court in determining whether to

grant the Attorney General relief under the Act. This is

a case of first impression and the District Court’s method-

ology may hereafter be relied on by other litigants and

judges in Civil Rights cases. We therefore undertake an

examination of the Court’s stated reasons for denying the

requested injunctive relief, and an analysis of its decision

nevertheless to grant a declaratory judgment. The parties

pressed no error in these respects, yet to allow what we

deem an erroneous view of the law to remain undisturbed

would light a false beacon with the possibility of harmful

consequences of a general public nature.

A. The District Court’s Approach

The Attorney General is empowered by §813 of the

Oivil Rights Act of 1968, 42 U.S.C. § 3613, to enforce the

Fair Housing Title of the Act. That section provides:

Whenever the Attorney, General has reasonable

cause to believe that any person or group of persons

is engaged in a pattern or practice of resistance to

the full enjoyment of any of the rights granted by this

subchapter, or that any group of persons has been

denied any of the rights granted by this subchapter

and such denial raises an issue of general public im-

portance, he may bring a civil action in any appropri-

ate United States district court by filing with it a

——

complaint setting forth the facts and requesting such

preventive relief, including an application for a per-

manent or temporary injunction, restraining order, or

other order against the person or persons responsible

for such pattern or practice or denial of rights, as he

deems necessary to insure the full enjoyment of the

rights granted by this subchapter. (Our italics.) *

lda

12 Due to the origin of the Fair Housing Title, see note 4 supra,

there appears no helpful legislative history concerning § 3613.

The governmental enforcement provision apparently stirred no con-

troversy and was adopted without clarifying remarks. The sec-

tion was plainly modeled after the governmental enforcement

provisions of the Civil Rights Act of 1964, most notably, the twin

sections 206 and 707 (42 U.S.C. 2000a-5 and 2000e-6). These sec-

tions authorize suit by the Attorney General in public accomoda-

tions and equal employment cases if he has ‘‘reasonable cause to

believe that a pattern or practice of resistance’’ exists. In addi-

tion, these sections provide that, if the Attorney General certifies

that the case is also one of ‘‘general public importance,’’ he may

request the empaneling of a three-judge court. In drafting thé

enforcement section of Title VIII in 1968, Congress retained the

‘*pattern or practice’? language verbatim. It omitted the resort to

a three-judge court and instead made the existence of a case ‘‘rais-

ing an issue of general public importance’’ an alternative basis

for the Attorney General’s action.

The reason for creating an alternate ground for suit is unex-

plained. The present language of § 3613 was first included in an

amendment proposed by Senator Dirksen as a substitute for the

original proposed amendment adding a fair housing title to H.R.

2516 Compare § 13 of the original proposed fair housing amend-

ment, 114 Cong. Rece,, 2271 (Feb. 6, 1968), with § 213 of the Dirk-

sen substitute amendment, 114 Cong. Rec. 4573 (Feb. 28, 1968).

The change was viewed as an expansion of the Attorney General’s

power to enforce the Fair Housing Title. Dubofsky, Fair Housing:

A Legislative History and a Perspective, 8 Washburn L.J. 149,

157 (1969).

The close similarity in the terms employed in § 3613 and

§§ 2000a-5 and 2000e-6 accounts for our reliance on the legislative

and judicial interpretation of the latter in our construction of the

words in § 3613. See United States v. West Peachtree Tenth

Corp., 437 F. 2d 221, 227 (5th Cir. 1971).

sarees tartaric CTEM SONATAS Se ate anaes a separa

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—

l6a

In the District Court, the Attorney General argued that

under either of the alternative grounds specified in § 3613,

he was entitled to an injunction and ‘‘such additional relief

as the interest of justice may require.’’

In construing § 3613, the judge noted that

[B]efore granting relief, [a court] should determine

that such a pattern or practice of resistance exists or

that there has been such denial of rights as would

justify the granting of the relief prayed.

324 F. Supp. at 530-31.

After hearing the evidence, the court denied the re-

quested injunction because, in its stated view, the Govern-

ment failed to prove either that a pattern or practice of

resistance existed or that the case raised an issue of gen-

eral public importance. It also grounded its refusal on

equitable principles, namely that (1) an injunction was

not necessary since it was satisfied that defendant would

abide by the law as pronounced by the court in a declara-

tory judgment, and (2) the Attorney General had singled

out The Courier for legal action but had not sued to enjoin

identical continuing activities of larger nearby newspapers.

B. Statutory Prerequisites for Relief

The District Court correctly stated its obligation to give

relief only when the Government established that either

a pattern or practice of resistance or a case raising an

issue of general public importange is present. Section 3613

does not grant the Attorney General unlimited authority.

The language of the section shows that Congress did not

wish the Attorney General to enforce private civil rights

created by the Act unless a specific violation has a measur-

able public impact in that it is either one of a pattern or

practice of resistance or a case raising an issue of general

public importance. If neither prerequisite for relief ex-

isted, a district court would be required to refuse the relief

—— os

17a

sought by the Attorney General. See United States v. Bob

Lawrence Realty, Inc., 327 F. Supp. 487 (N.D. Ga. 1971).

Cf. United States v. Gray, 315 F. Supp. 13 (D.R.L. 1970)."*

We find no fault with the District Court’s determination

that a pattern or practice of resistance was not shown in

this case. The same phrase is also found in the Civil Rights

Act of 1964.* The 1964 legislative history clearly shows

that Congress intended a ‘‘pattern or practice’’ to be more

than an isolated or accidental instance of conduct violative

of the Act, but rather, as the term ‘‘resistance’’ connotes,

an intentional, regular, or repeated violation of the right

granted by the Act. See United States v. Mitchell, 327 F.

Supp. 476 (N.D. Ga. 1971) (applying the 1964 legislative

history in construing § 3613).

In the case now before us, The Courier published only

two allegedly discriminatory advertisements. The first

was published before the Act was called to the defendant’s

attention; the second, some six months later, was printed

without his authorization due to an employee’s failure to

bring the content of the advertisement to Hunter’s atten-

tion as he had previously directed. Hunter noticed the

second advertisement only when the advertiser asked the

paper to run this second ad for another week. Once in-

formed, the defendant refused to allow the ad to run again.

In light of these facts, the District Court determined that

It has been uniformly held that the question whether pattern

or practice of resistance or a case of general public importance has

been shown is for the court to determine, even though the Attorney

General has alleged that he has reasonable cause to believe that

a requisite ground for relief is present. See United States v.

Mitchell, 313 F. Supp. 299, 300 (N.D. Ga. 1970) (applying § 3613) ;

Dobbins v. Local 212, 292 F. Supp. 413, 443 (S.D. Ohio 1968)

applying § 2000e-6) ; United States v. Gray, 315 F. Supp. 13, 19-

23 (D.R.I. 1970) (applying § 2000a-5). See also the remarks of

Senator Humphrey, 110 Cong. Ree. 14270 (June 18, 1964).

14 See note 12, supra.

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“= eRe! BI CT te eee Be ?

18a

Hunter’s sporadic and unintentional violations did not con-

stitute a ‘“‘pattern or practice of resistance.’’

But we emphatically do not agree with the court’s con-

clusion that the Government failed to establish the alterna-

tive basis upon which relief could be granted—a case rais-

ing ‘‘an issue of general public importance.”’ In determin-

ing that no such case was established, the court pointed

out that no one was known to have complained of the adver-

tisement published by The Courier and that similar ads

are regularly carried in the major newspapers in nearby

Washington, D.C.

We deem the absence of individual complaints and the

continuance of similar violations by others to be irrelevant

in determining whether a case raises an issue of general

public importance, particularly in light of the clear con-

gressional meaning attaching to this provision in its legisla-

tive history. Although the term is not defined in either the

1968 Act or its legislative history, the 1964 Civil Rights Act

uses the nearly identical term, ‘‘case of general public im-

portance,”’ in authorizing three-judge courts in $§ 206 and

707 and in empowering the Attorney General to intervene

in private suits, § 902. In the legislative history of the 1964

Act, a case of general public importance was defined as one

where:

the points of law involved in it are of major significance

or * * * the particular decision will constitute a prece-

dent for a large number of establishments * * *.

110 Cong. Rec. 12713 (June 4, 1964) (Senator Humphrey,

floor manager for the Bill). The draftsmen unquestionably

meant to incorporate this definition into the 1968 Act when

they used the term ‘‘raises an issue of general public im-

portance.’’ **

15 Although Congress reworded the phrase ‘‘case of general

public importance’’ so that suit may be instituted by the Attorney

General if there is a denial of rights and ‘‘such denial raises an

19a

In the case at bar, a decision would be a precedent of

‘“‘major significance’’ in future application of § 3604(c) to

all newspapers.’* No previous case presented the issue of

the constitutionality of that section as applied to news-

papers, or whether a reference to a ‘‘white home’’ was vio-

lative of the statute. A firm precedent was needed, particu-

larly if other newspapers were to be brought into com-

pliance without costly litigation. The questions of the scope

and constitutionality of § 3604(c) plainly raised a classic

issue of general public importance, affording a necessary

prerequisite for relief, independent of whether a pattern or

practice of resistance was also shown to exist.’" The Dis-

trict Court was clearly in error, then, in deciding that the

case did not raise an issue of general public importance.

Correction of this error is essential to affirming the Dis-

trict Court’s grant of a declaratory judgment. Although

properly holding that relief is available only where a pat-

tern or practice of resistance or a case raising an issue of

issue of general public importance,’’ the slight variation in style

does not deter us from turning for guidance to the legislative his-

tory of the 1964 language. Indeed, in both the House and Senate

floor debate in 1968, the 1964 phraseology was used interchangeably

with the 1968 variation. See 114 Cong. Rec. 4908 (March 2,

1968) (Senate debate) ; 114 Cong. Rec. 8651 (April 2, 1968) ; 114

Cong. Ree. 9561 (April 10, 1968) (House debate).

%° The ‘‘nation’s leading daily newspapers’”’ are said to have

taken interest in the suit against The Courier. Editorial, ‘‘A

Free Press,’’ The Courier, Thursday, J uly 16, 1970, p. 4.

17 In contrast to the 1964 Act, a pattern or practice of resistance

is not an indispensable prerequisite for relief. Relief may be

based on a single (unintentional) violation of the Act when by

that violation a group of persions are denied their statutory rights

and the case raises an issue of general public importance. Here

the rights of all non-whites looking for an apartment were abridged

by the illegal advertisements published in The Courier.

20a

general public importance is proved, the District Court

granted the Government a favorable declaratory judgment,

notwithstanding its double determination that neither pre-

requisite for relief was established in the instant case.

Since a declaratory judgment, no less than an injunction, is

a form of relief under the Act,"* it may be issued unly after

one or the other prerequisite for relief has been shown to

exist. Thus, it would be illogical to grant a declaratory

judgment in the Government’s favor, while denying it an

injunction for failure to establish a basis for relief. But,

since we hold that this case raises an issue of general public

importance, there appears a solid framework for granting

relief under the Act. The appropriate form of that relief

is the next topic for discussion.

C. The Choice of Appropriate Relief

As in all cases, upon determining that the ncnimum pre-

requisite for relief is present, the judge must choose from

the spectrum of available remedies, that which is suitable,

F.R.C.P. Rule 54(c).

In the course of the trial, the District Court commented

that it might not grant an injunction on the evidence pre-

sented, but stated in substance that it would enter an order

in the nature of a declaratory judgment fully determining

the questions of law presented by both sides. The parties

agreed to this procedure; defendant Hunter because he de-

sired a final adjudication whether he was subject to the

provisions of the Act, and the Attorney General because he

required a resolution of the novel issues in a concrete case.

Ultimately, the District Court did refuse the junction and

gave the Government a favorable declaration concerning

the applicability of § 3604(c) to the case.

18 See note 19, infra.

21a

We find no abuse of discretion in denying the injunction

and granting, in its place, declaratory relief to the Gov-

ernment.”

Established principles of equity dictate that in consider-

ing whether to grant injunctive relief a court should impose

upon a defendant no restriction greater than necessary to

protect the plaintiff from the injury of which he complains.

See McClintock on Equity § 146 (2d ed. 1948). In the in-

stant circumstances, the District Judge believed a declara-

tion of the law would be as effective a remedy as the issu-

™ Declaratory relief is among the possible remedies available

to the District Court under § 3613. The section provides that the

Attorney General may request:

* * * such preventive relief, ineluding an application for

a permanent or temporary injunction, restraining order, or

other order against the person or persons responsible for

such pattern or practice or denial of rights, as he deems nec-

essary to insure the full enjoyment cf the rights granted by

this subchapter.

It is diffieult to imagine what the phrase “‘or other order’’ pos-

sibly encompasses if not declaratory relief. Declaratory judg-

ments are no longer such curiosities that they would have to be

specifically called by name.

Furthermore, in an appropriate case, 4 declaratory judgment

may constitute a form of ‘‘preventive relief’? mentioned in § 3613.

Apparently, the Government also believes that declaratory relief

in this case would effectively prev cut further violations by Hunter

because it did not appeal from the denial of the injunction. Fur-

thermore, after the entry of a declaratory judgment, 28 U.S.C.

§ 2202 allows the application for additiona] relief (ineluding co-

ercive relief) based upon the declarations previously made. See

Teas v. Twentieth Century-Fox Film Corp., 413 F.2d 1263, 1267

(5th Cir. 1969). Since the present declaratory judgment has deter-

mined the issue of The Courier’s prior publication of illegal ad-

vertisements, it may also be used in case of Hunter’s future vio-

lation to establish that the defendant engages in a pattern or

practice of resistance.

Thus, a declaratory judgment, no less than an injunction, is a

possible remedy under § 3613.

cceiemamemenmmnameatiiall a

22a

ance of an injunction because he was firmly convinced that

the defendant, although opposing the Government’s inter-

pretation of § 3604(c), would obey the law as declared by

the court.

Such a standard for refusing an injunction has been

utilized by the Supreme Court. In affirming the denial of

an injunction in an antitrust case, the Court said:

Along with its power to hear the case, the court’s

power to grant injunctive relief survives discontinu-

ance of the illegal conduct. The purpose of an injunc-

tion is to prevent future violations * * *. But the mov-

ing party must satisfy the court that relief is needed.

The necessary determination is that there exists some

cognizable danger of recurrent violation * * *. To be

considered are the bona fides of the expressed intent

to comply, the effectiveness of the discontinuance and,

in some cases, the character of the past violations.

United States v. W. T. Grant Co., 345 U.S. 629, 633 (1953)

(citations omitted). See also United States v. Oregon State

Medical Society, 343 U.S. 326, 333 (1952).

This standard was also endorsed in Bailey v. Patterson,

206 F.Supp. 67, 70 (S.D. Miss. 1962), a civil rights case in

which the district court granted the plaintiffs a favorable

declaratory judgment, but denied the sought-after injunc-

tive relief. The district court there declared that the Negro

plaintiffs had a constitutional right to integrated interstate

transportation facilities, but refused the injunction because

it believed that the defendants would not thereafter violate

plaintiff’s rights. The Fifth Circuit reversed the trial

judge’s decision, 323 F.2d 201, 205-206 (5th Cir. 1963), but

did so because the district court’s finding that the defend-

ants would not continue to discriminate was unsupported

by the record. See also United States v. Atkins, 323 F.2d

733, 739-40 (5th Cir. 1963), where the district court’s denial

of requested injunctive relief was reversed as an abuse of

23a

discretion because the Court of Appeals saw a ‘*cognizable

danger’’ of recurrence. We can find no similar error in the

decision here under review, and agree with the District

Court that Hunter is sufficiently unlikely to continue violat-

ing the Act as to make injunctive relief not warranted.2°

We hasten to add, however, that our decision 1s in no way

intended to deprecate injunctions as appropriate remedies

in housing discrimination cases. Trial judges must remain

vigilant to protect minorities from deprivation of their

statutory and constitutional rights. An injunction should

not be refused upon the mere ipse dizit of a defendant that,

notwithstanding his past misconduct, he is now repentant

and will hereafter abide by the law. Denial of an injunction

is proper only in cases where, after hearing the defendant

and examining the particular circumstances of the viola-

tions involved, including the existence of a pattern or prac-

tice of past violations, the judge is fully satisfied that the

defendant will not continue his unlawful conduct. See

United States v. Oregon State Medical Society, supra;

NAACP v. Thompson, 357 F.2d 831, 838 (5th Cir.), cert.

demed, sub nom. Johnson v. NAACP, 385 U.S. 820 (1966) ;

Bailey v. Patterson, supra.”

We deal next with the District Court’s second equitable

ground for denying the requested injunction, namely that

the Government failed to sue other newspapers in nearby

?°'We also note that in Bailey v. Patterson and United States

v. Atkins, a pattern or practice of resistance was established and,

in such a case, the likelihood of future resistance may be more

substantial than where, as here, only sporadic violations were

proved.

*1 Of course, an injunction may issue, even though the prior dis-

crimination has ceased, and affirmative relief should be granted

where the vestiges of prior discrimination linger and remain to

be eliminated. United States v. Louisiana, 380 U.S. 154, 156

(1965) ; United States v. West Peachtree Tenth Corp., 437 F. 2d

221, 228 (5th Cir. 1971). In the instant case, no such effect was

alleged to remain and none was found by the District Judge.

: iy

Washington, D.C., which print similar discriminatory ad-

vertisements, but chose to move against The Courier alone.

The District Court invoked the equitable maxim that to ob-

tain the benefit of equity, a plaintiff must himself do equity.

We cannot agree that this maxim was appropriately in-

voked here as a basis for denying the injunction. Surely,

the defendant cannot be heard to complain that the Attor-

ney General, in discharging his executive responsibilities,

has chosen to sue The Courier first and not, for example,

The Washington Post. Such a choice is well within the

prosecutor’s discretion. See, e.g., Smith v. United States,

375 F.2d 243, 247 (5th Cir.), cert. denied, 389 U.S. 841

(1967). If defendant’s argument were generally accepted,

the Government’s enforcement effort would be crippled in

such areas as antitrust, environmental protection, and

labor, as well as civil rights. Indeed, § 3613 does not re-

quire the Attorney General to sue in every case where he

has reasonable cause to believe that a pattern or practice of

resistance or a case of general public importance exists, and

for the court to question the Government’s choice of a de-

fendant would be an impermissible judicial interference

with executive discretion. Cf. United States v. Mitchell,

313 F.Supp. 299, 300 (N.D. Ga. 1970); United States v.

Gray, 315 F.Supp. 13, 22-24 (D.R.1. 1970).

Thus, were the official’s choice of a defendant the only

ground offered by the District Court for refusing the in- .

junction, we would be compelled to reverse the decision as

an abuse of discretion. But the Judge gave a valid alterna-

tive reason—the defendant’s likely future compliance with

the law—and upon that basis alone the denial of the injunc-

tion and the substitution of a declaratory judgment is a

proper exercise of equitable discretion.

_—

25a

Summary

We have endeavored to outline for future cases the ap-

proach a trial judge should take in deciding whether to

grant the Government relief in Fair Housing cases, and in

determining whether injunctive or declaratory relief is ap-

propriate. While the District Court in the instant case was

not entirely correct in the reasons it gave for declining to

issue an injunction and giving instead a declaratory judg-

ment, the result ultimately reached was lawful and com-

ported with the facts of the case.

As for the substance of the declaratory judgment, we are

in accord with the court’s holding that Congress intended

§ 3604(c) to apply to newspapers; that, so applied, the sec-

tion is constitutional; and that the Act was violated by the

advertisements published in The Courier stating that the

apartment for rent was located in a ‘‘white home.’’ The

judgment is therefore Affirmed.

—_ sae SIRNA Re ETE NE ONT SA TR

ee LN eS ae eee x ; :

26a

APPENDIX B

Filed: April 13, 1971.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 70-816-T

Unitep States or AMERICA

v.

Bu R. Hunter, d/b/a THe Courier

Frank E. Schwelb and Robert J. Wiggers, Attorneys, De-

partment of Justice, Washington, D.C., and George Beall,

United States Attorney, Baltimore, Maryland, for plaintiff.

Arthur B. Hanson and W. Frank Stickle, Jr., Rockville,

Maryland, and Ralph N. Albright, Jr., Washington, D.C.,

for defendant.

TuomseEN, District Judge

This is the first action brought by the Government

against the publisher of a newspaper under the ‘‘Fair

Housing” provisions of the Civil Rights Act of 1968, 42

U.S.C.A. 3601 et seq., to enjoin an alleged violation of sub-

section (c) of § 3604, which provides:

‘< § 3604. Discrimination in the sale or rental of housing

‘‘As made applicable by section 3603 of this title

and except as exempted by sections 3603(b) and 3607

of this title, it shall be unlawful—

‘¢ ® * a

‘¢(¢) To make, print, or publish, or cause to be made,

printed, or published any notice, statement, or adver-

tisement, with respect to the sale or rental of a dwell-

—

ing that indicates any preference, limitation, or dis-

crimination based on race, color, religion, or national

origin, or an intention to make any such preference,

limitation or discrimination.

27a

‘6 * * 99

The only exemption referred to by the parties, the so-

called ‘‘Mrs. Murphy’’ exemption, contained in § 3603(b)

(2), provides:

‘*(b) Nothing in section 3604 of this title (other than

subsection (c)) shall apply to—

‘< * * *

‘*(2) rooms or units in dwellings containing living

quarters occupied or intended to be occupied by no

more than four families living independently of each

other, if the owner actually maintains and occupies one

of such living quarters as his residence. ’’

Under § 3613 the Attorney General may bring a civil

action for an injunction and other appropriate relief when-

ever he has reasonable cause to believe either ‘‘that any

person or group of persons is engaged in a pattern or prac-

tice of resistance to the full enjoyment of any of the rights

granted by this subchapter’’, or ‘‘that any group of per-

sons has been denied any of the rights granted by this sub-

chapter and such denial raises an issue of general public

importance’’. The Attorney General is proceeding in this

case under both alternatives. A court should not review the

Attorney General’s finding of reasonable cause, but before

granting relief should determine that such a pattern or

practice of resistance exists or that there has been such a

denial of rights as would justify the granting of the relief

prayed. United States v. Mitchell, 313 F.Supp. 299, 300

(N.D. Ga. 1970) ; United States v. Building & Construction

Trades Council, 271 F.Supp. 447, 453 (E.D. Mo. 1966).

The Government’s case is based upon two advertisements

which appeared in defendant’s newspaper, correspondence

22 CATR S SREY

——

28a

before suit, and an editorial published after this suit was

filed. There is little or no dispute about the facts.

Defendant contends: that § 3604(c) does not apply to

newspapers disseminating real estate advertisements; that

such application would violate the First Amnedment, and,

in view of the ‘‘Mrs. Murphy’’ exemption, the Fifth Amend-

ment; that the ads involved do not ‘‘indicate a preference

in violation of § 3604(c)’’; and that no pattern, practice,

or denial of rights sufficient to justify the relief requested

has been shown.

Findings of Fact

Defendant, Bill R. Hunter, a resident of Maryland, is

publisher and editor of a weekly newspaper, The Courier,

published in Prince George’s County, Maryland, with a

circulation of some 29,000 copies per week, mostly in that

county. The Courier carries classified advertisements for

the sale or rental of real estate. The advertisers supply the

wording of the ads and pay the newspaper for their print-

ing and publication. It is the policy of defendant to refuse

to accept an ad if, in his judgment, it is either offensive or

deceptive, or the advertiser is not acting in good faith and

in good taste.

On January 8, 1970, The Courier carried the following

advertisement :

“FOR RENT—Furnished basement apartment. In

private white home. Call JO 3-5493.”’

On January 26, 1970, Frank E. Schwelb, Chief, Housing

Section, Civil Rights Division, Department of Justice, sent

a letter to defendant, expressing the view that such ads

violate the Fair Housing Act of 1968 because they indicate

a racial preference, and suggesting that defendant instruct

his employees to cease accepting such ads.

29a

Defendant returned the letter with a note on the last

page, stating:

‘‘The advertisement to which you refer does not

specify that the apartment will be rented only to white

occupants. It is the policy of this newspaper to accept

no advertising which in any way is racially offensive,

however, the statement that the home in which the

apartment is located is occupied by white people should

not in our opinion be offensive to anyone. We have

given no further instructions to our employees.

On February 7, 1970, the Chief of the Housing Section

again wrote defendant, setting forth in greater detail why

the Civil Rights Division considers that such ads violate

the statute.

On March 19, 1970, he sent defendant another letter,

stating: ‘‘Since you have been unwilling to provide any

assurance that you will discontinue the acceptance of ad-

vertisements which we believe to be in violation of the law,

we shall have no alternative, should further advertisements

of this kind appear, to recommend that suit be instituted in

the appropriate Court to assure compliance with the Fair

Housing Act.’’

Defendant received the second and third letters, but did

not reply. He did, however, instruct his staff to refer any

such ads to him before they were published. Due to the

failure of an employee to follow that instruction, the fol-

lowing ad was published in The Courier on June 18, 1970,

without defendant’s having seen it:

“FURNISHED APARTMENT, well located, clean,

quiet. In white home. Gentlemen only. $17.50 a week.

Call JO 3-5493.”’

Both ads were placed by an elderly, retired man named

Crawford, who lived in southeast Washington.

WE a as

BI ORIPELLELMG Te e A

CRP

——

30a

This suit was filed on July 14, 1970. In its next issue The

Courier carried a news article stating: ‘‘When questioned

about his motive in indicating a white home in his ads,

Crawford said, ‘it’s really a kindness to colored people.

There’s no use making them spend money to call here or

come here when I’m not going to rent to them. I don’t

legally have to rent to anyone I don’t want to’.’’

The same issue carried a long and not intemperate edi-

torial, entitled ‘‘A Free Press’’, stating, inter alia: ‘‘We

remain steadfast in our belief in the freedom of the press

and the right of every homeowner to decide who shall or

shall not live in the house with him.”’

The editorial also said: ‘‘The Courier has never, and will

never, publish an advertisement or news item for the pur-

pose of being racist, or in any way race baiting.’’ That

has in fact been the policy of the paper, which has pub-

lished one or more editorials criticizing the actions of white

racists.

The editorial also noted that ‘‘metropolitan daily news-

papers have been publishing the same type ads for some

time that the Justice Department is suing The Courier to

discontinue.’’ That is true. On the day after this suit was

filed the Washington Post carried a story of the filing, and

in the same edition carried six ads similar to those which

appeared in The Courier, including the following:

“CONN. AVE.—Wht. pvt. home. Apt. for employed,

quiet lady, nonsmoker. Nr. Bus. 362-2275.’’

‘‘NE.—Nice rm., colored home. Refined, settled lady

pref. 544-7724 aft. 6 p.m.”’

‘‘NE.—Lovely room in quiet colored home. Settled

lady. 832-9063, aft. 6.”’

Four such advertisements were carried in the Washington

Star and three or four in the Washington Daily News on

3la

that date. Thereafter, similar ads have been carried by the

Washington daily papers, some since this case was heard.

Counsel for the Government told the Court that another

Department has been negotiating with these large news-

papers ; but no action has been taken against them.

Discussion

I

On its face, § 3604(c) applies to anyone who makes,

prints or publishes, or causes to be made, printed or pub-

lished any notice, statement or advertisement with respect

to the rental of a dwelling! indicating any of the prefer-

ences, limitations or discriminations listed in that section.

There is no exemption for newspapers, although an exemp-

tion is provided for religious organizations and private

clubs in other sections of the Act.

In Brush v. San Francisco N ewspaper Printing Co., 315

F.Supp. 577 (N.D. Cal. 1970), appeal pending, relied on by

defendant, the Court was dealing with § 704(b) of the Civil

Rights Act of 1964, 42 U.S.C.A. 2000e-3(b), which specif-

ically states: ‘‘It shall be an unlawful employment practice

for an employer, labor organization, or employment agency

to print or publish”’ discriminatory advertisements relating

to their own employment functions. Moreover, in Brush,

the legislative history showed that the House Judiciary

Committee Report stated : “The prohibitions of this section

do not require newspapers and other publications to exer-

cise any control or supervision over, or to do any screening

of the advertisements or notices published by them’’. See

315 F.Supp. at 582.

The legislative history of the 1968 Act, involved in this

case, contains no suggestion that newspapers are to be

exempted. The only reference to newspapers was a state-

‘Including a room or apartment in a dwelling, § 3602(b).

~ 2. BAAS ee ae te

ARENT NL SENET RT TN ES

Slit

32a

ment by Senator Ellender, an opponent of the bill, who said

in the course of debate:

‘© * ® * Apparently, under this provision any news-

paper publisher who accepted an advertisement indicat-

ing a preference by the owner of a certain race or reli-

gion would be in violation of the law. Apparently,

freedom of speech and press guaranteed in the Bill of

Rights is to be abolished with the inauguration of this

open housing amendment.’’ Cong. Rec., Sen., p. 3134,

Feb. 15, 1968.

The Supreme Court said in Arizona v. California, 373

U.S. 546, 583, n. 85 (1963) : ‘‘We recognize, of course, that

statements of opponents of a bill may not be authoritative,

see Schwegmann Bros. v. Calvert Distillers Corp., 341 US.

384, 394-395 (1951), but they are nevertheless relevant and

useful, especially where, as here, the proponents of the bill

made no response to the opponents’ criticisms.”’

This Court concludes that § 3604(c) applies to news-

papers.*

i

The restrictions in § 3604(d) limit speech only in a com-

mercial context, not in relation to the dissemination of

ideas. The Supreme Court and other courts have ruled that

commercial activities are not entitled to the same First

Amendment protections that are afforded to the expression

of racial, religious or political views. See e.g., Breard v.

Alexandria, 341 U.S. 622 (1951) ; Valentine v. Chrestensen,

2The Court has reached the foregoing determination without

giving any substantial weight to a letter dated April 16, 1970, from

Robert A. Sauer, Assistant General Counsel for Community Pro-

grams, United States Department of Housing and Urban Devel-

opment, to Margaret Smith of the National Newspaper Association,

offered by the Government. See Zuber v. Allen, 396 U.S. 168, 192-

194 (1969) ; Udall v. Tallman, 380 U.S. 1, 16 (1965) ; Forbes v.

Maddoz, 339 F. 2d 387 (9 Cir. 1964).

ns

33a

316 U.S. 52 (1942) ; Jamison v. Texas, 318 U.S. 413 (1943) ;

New York State Broadcasters Agsn., Inc. v. United States,

414 F.2d 990 (2 Cir. 1969), cert. denied 396 U.S. 1961

(1970); Halsted v. Securities & Exchange Commission,

182 F.2d 660, 668-669 (D.C. Cir. 1950). See also Note,

Freedom of Expression in a Commercial Context, 78 Harv.

L.Rev. 1191 (1965).

In United States v. Bob Lawrence Realty, Inc., 313 F.

Supp. 870, 872 (N.D. Ga. 1970), dealing with another sub-

section of § 3604, Judge Edenfield said:

“«* * * It is evident that the statute does not make

mere speech unlawful. What it does make unlawful is

economic exploitation of racial bias and panic selling.

We conclude that the statute is one regulating con-

duct, and that any inhibiting effect it may have upon

speech is justified by the Government’s interest in pro-

tecting its citizens from discriminatory housing prac-

tices and is not violative of the First Amendment.’’

Id. at 872.

See also Brown v. State Realty Co., 304 F.Supp. 1236

(N.D. Ga. 1969).

The Supreme Court has held that no prior restraints may

be laid upon freedom of the press. Near v. Minnesota, 283

U.S. 697 (1931). In that case the state argued that the

statute forbidding scandalous and defamatory newspapers

was directed at the business of publishing such period-

icals. In holding the statute unconstitutional ander the

First Amendment, the Supreme Court said:

“« * * * In determining the extent of the Constitu-

tional protection [of a free press], it has been gen-

erally, if not universally, considered that it is the chief

purpose of the guarantee to prevent previous restraints

upon publication. * * *’’ 283 U.S. at 713.

34a

In the present case, however, what is sought is injunctive

relief against discriminatory advertising, not against pub-

lication of the newspaper or its editorial policy.

Grosjean v. American Press Co., 297 U.S. 233 (1936),

also relied on by defendant, involved a tax solely on the

advertising revenue of certain newspapers in Louisiana.

The court struck down the tax because it was seen to be “‘a

deliberate and calculated device im the guise of a tax to

limit the circulation of information to which the public is

entitled in virtue of the constitutional guaranties.’’ 297

U.S. at 250. On the other hand, § 3604(c), as applied to

newspapers, is an appropriate means to help eliminate

housing discrimination.*

In a case where the facts justify it, an injunction against

carrying the type of advertisements prohibited by § 3604

(c) does not constitute an unconstitutional previous re-

straint on freedom of the press.

Til

Defendant contends ‘‘that because Congress granted to

homeowners a ‘Mrs. Murphy’ exemption, under the Fifth

Amendment it cannot deny to those homeowners a right to

communicate their intention, nor can Congress, under the

First and Fifth Amendments, subject newspapers to lia-

bility for publishing a real estate advertisement from an

exempted homeowner.”’

The Fair Housing Act of 1968 does not attempt to pro-

hibit an individual homeowner who comes within the provi-

sions of § 3603(b) (2), such as the advertiser in this case,

from refusing to rent a room or an apartment in his home

8 It is not ‘‘on artificial licensing device’ with oppressive and

disproportionate requirements unrelated to the defendant’s busi-

ness, by which his publication ‘‘can be curtailed or terminated”’.

See United Interchange, Inc. v. Harding, 154 Me. 128, 145 A. 2d

94, 99 (1958).

Le...

35a

to a person who is distasteful to him for any reason. It is

not necessary, therefore, to discuss the constitutional right

of such an individual to refuse to rent a room or an apart-

ment in his home to any applicant. See discussion in 82

Harv. L. Rev. 1294, at 1312 et seq. See also United States

v. Mintzes, 304 F.Supp. 1305, at 1312-1313 (D.Md. 1969).

The Act does, however prohibit both the homeowner and

anyone else from making printing or publishing or causing

to be made printed or published any notice statement or ad-

vertisement with respect to the rental of a room or apart-

ment, even in a private home, which ‘indicates any pref-

erence, limitation, or discrimination based on race, color,

religion, or national origin, or an intention to make any

such preference, limitation, or discrimination.’? See

§ 3603(b) (2) and § 3604(c), quoted above.

The Government has not joined the advertiser as a party

in this case, but in connection with the point raised by the

publisher herein, it is necessary to consider whether the

advertiser would have a constitutional right to cause to be

made, printed or published any notice, statement or adver-

tisement which indicated a prohibited preference or inten-

tion.

The fact that the statute does not attempt to prohibit a

homeowner such as the advertiser in this case from ref using

to rent a room or an apartment in his own home to any

person for any reason, does not require the conclusion that

Congress may not constitutionally prohibit such a home-

owner from publishing or causing to be printed or pub-

lished any notice, statement or advertisement which indi-

cates a preference or intention to discriminate. Whether

the homeowner should be denied the right to intimate his

preference or limitation in an advertisement is a matter for

the Congress, not the Courts.

rea tN OLE ILENE LOE LEN oe OEE TI

—_— ——~ = .

eon

36a

IV

The two ads indicate a preference for a white tenant,

and were intended to do so.

v

The meaning of the term ‘‘pattern or practice’’ was

discussed at length in United States v. Mintzes, supra, 304

F.Supp. at 1313-1315, and in United States v. West Peach-

tree Tenth Corporation, — F.2d — (5 Cir. 1971). Those

discussions need not be repeated here. The number of inci-

dents necessary to show a pattern or practice depends upon

the nature of the right protected and the nature of the ordi-

nary violations of that right. The pattern or practice re-

quirement means that the proven discriminatory conduct

was not merely an isolated instance of racial discrimination,

but that it was an event which happened in the regular pro-

cedures followed by the defendant and/or his employees.

In this case defendant published only two advertisements.

The first was published before the statute was called to his

attention. His first reaction was to question the interpreta-

tion of the Department of Justice, but when the Department

reierated its position, defendant told his employees to bring

any such ads to his attention. The second ad was published

without defendant’s approval, not intentionally or delib-

erately by him, but as a result of the failure of an em-

ployee to bring the ad to his attention. Defendant is not a

racist and does not advocate or wish to countenance racial

discrimination. He indicated onthe stand that he disagrees

with the Department’s interpretation of the law, but that

he would consider the wording of each ad presented to him.

The Government has not proved such a pattern or practice

as would justify an injunction in this case.

The alternative justification for relief is for the Govern-

ment to show ‘‘that any group of persons has been denied

any of the rights granted by this subchapter and such denial

raises an issue of general public importance’. No black

37a

person is shown to have complained of either of the two ads

which form the basis of this case. The ads in the Washing-

ton daily papers show that similar ads are customarily pub-

lished both by white and ‘‘colored’’ homeowners.’ The Gov-

ernment did not prove that anyone has been actually of-

fended or caused any inconvenience by the two ads in-

volved in this case.

The Court has found that the ads violated § 3604(c) and

that the application of that subsection to such advertise-

ments does not deprive defendant of any of his constitu-

tional rights. But every violation of § 3604(c) does not

raise an issue of such general public importance as to

justify an injunction, where no pattern or practice has been

shown, and where the court is satisfied that the defendant

will obey the law as declared.

There is a clearer reason, however, for denying the re-

quested injunction in this case. It has been shown that the

large Washington daily newspapers have been carrying

similar advertisements both before and after the filing of

this suit against the publisher of a county newspaper with

* The alternative methods of enforcement should be considered.

Section 3610 provides that a person who claims to have been in-

jured by a discriminatory housing practice, or who believes that

he will be irrevocably injured by a discriminatory housing prac-

tice that is about to occur, may file a complaint with the Secre-

tary of Housing and Urban Development, who shall attempt to cor-

rect the alleged discriminatory housing practice by informal meth-

ods of conference, conciliation and persuasion. If the Secretary

is unable to obtain voluntary compliance within a specified period,

the party aggrieved may within 30 days thereafter ‘‘commence a

civil action in any appropriate United States district court, against

the respondent named in the complaint to enforce the rights

granted or protected by this subchapter,’’ subject to certain pro-

visos. Section 3612 provides for the enforcement of the rights

granted by §§ 3603-3606 by private civil actions. The remedies

provided by § 3610 and § 3612 will be effective in certain types of

cases.

— - non

AO igh th EPL CIES FS

TGS

i: oa

a small circulation. The Government has an obligation to

treat citizens fairly and equally and to do equity when it

seeks equitable relief.

Counsel should agree upon an appropriate judgment giv-

ing effect to the rulings in this opinion.

United States District Judge

39a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. 70-816-T

Untrep States or AMERICA

v.

Bru R. Hunter, d/b/a Tue CourrmR

Judgment

This matter having come before the Court upon the com-

plaint filed herein by the plaintiff and the answer thereto

filed by the defendant, the Court having read and consid-

ered the pleadings and the memoranda of law filed by both

parties, and the Court having heard testimony in open court

and oral argument by counsel for the respective parties;

now, therefore, in view of the foregoing, and in accordance

with the opinion filed herein on April 13, 1971, it is, this

14th day of May, 1971,

ORDERED, ADJUDGED, DECLARED AND DECREED as follows:

1. The use of the terms ‘‘private white home”’ and “‘in a

white home’’, as those terms were used in classified real

estate advertisements appearing in defendant’s newspaper,

indicated a preference in violation of Section 804(c) of the

Civil Rights Act of 1968;

2. Section 804(c) of the Civil Rights Act of 1968 applies

to anyone who makes, prints or publishes, or causes to be

made, printed or published, any notice, statement or adver-

tisement with regard to the rental of a dwelling indicating

any of the preferences, limitations or discriminations listed

in that Section, and there is no exemption for newspapers

or newspaper publishers;

— . 1 ee R

. ge a UR RN OY RAD PI Re PORE OE eNOS PS ae

a a cas a —

——

3. In its application to newspapers or newspaper pub-

lishers, as set forth in paragraph 2 above, Section 804(c)

of the Civil Rights Act of 1968 does not constitute an un-

constitutional previous restraint on freedom of the press;

and

40a

4. For the reasons stated in the opinion filed herein on

April 13, 1971, the plaintiff is not entitled to the injunctive

relief requested in the complaint, and such relief is hereby

denied.

United States District Judge

copies to—

Frank E. Schwelb, Esq.

Robert J. Wiggers, Esq.

Civil Rights Division

Department of Justice

Washington, D.C. 20530

George Beall, Esq.

United States Attorney

409 Post Office Building

Baltimore, Maryland 21202

Arthur B. Hanson, Esq.

W. Frank Stickle, Jr., Esq.

22 W. Jefferson Street

Rockville, Maryland

Ralph N. Albright, Jr., Esq.

888 17th Street, N.W.

Washington, D.C. 20006

a

4la

APPENDIX D

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

OrFIce or AssISTANT SECRETARY FOR EQuaL OpporTUNITY

[Docket No. R-72-108]

37 F.R. 6700 (April 1, 1972)

ADVERTISING GUIDELINES FoR Farr Housing

Notice of Statement of Policy

In order to facilitate and promote compliance with the re-

quirements of Title VIII of the Civil Rights Act of 1968,

and particularly section 804(c) thereof (42 U.S.C. 3601,

3604(c)) regarding notices, statements or advertisements,

the Department of Housing and Urban Development has

prepared guidelines to indicate graphic and written refer-

ences that are appropriate for the preparation, publication,

and general use of advertising matter with respect to the

sale or rental of a dwelling as defined by the Act.

Notice of a proposed statement of policy was published

in the Feperau Recister on May 21, 1971 (36 F.R. 9266).

Comments were received from 26 interested persons and

organizations and consideration has been given to each

comment.

Several comments observed that the proposed policy

statement was at times unnecessarily limited to the field of

newspaper advertising. In response to the comments, the

policy statement has been revised in several places to clarify

that the guidelines apply to advertisements in all media,

including, e.g., television and radio, as well as to advertising

agencies and other persons who use advertising.

Several organizations suggested additional catchwords

connoting a discriminatory effect for inclusion in section

A-3. That section has been expanded to include several ad-

Seven Nad acs Po AA ead

spins 43h OBIE ABR INE DS SE GIRLIE LGN BR REE LR GSP EE NIE ee

Sal eee —

PAI TY :

8 LE a

42a

ditional terms which may have a discriminatory effect when

used in a discriminatory context.

In response to other comments, section A-6 has been re-

vised to clarify how directional references could be em-

ployed in a discriminatory context with an ethnically, as

well as a racially, discriminatory effect. Also, section A-7

has been added relating specifically to designation of reli-

gious, ethnic or racial facilities to identify an area or neigh-

borhood.

A number of comments indicated that human models or

Equal Opportunity advertisements can and have been used

selectively to promote the development of racially exclusive

communities. A new section C-4 has been added in order to

meet this specific problem. The previous human models

section has been clarified by revision and reorganization in

the new section ©, in light of comments which indicated

confusion or uncertainty surrounding the use of human

models.

In response to publisher’s comments, Table I has been

simplified and references to minimum type sizes limited to

a recommendation that the type should be bold display face

and no smaller than eight points.

A number of organizations suggested the inclusion of a

publisher’s notice to appear with real estate advertising. A

suggested notice has been included as Table ITI, in lieu of

the provision in the proposed guidelines for direct notifica-

tion to all firms or persons using the advertising services of

a publisher. This provision was removed in light of objec-

tions that such notification would be unworkable or would

impose great hardship since a large volume of real estate

advertising is placed by a great number of persons on a

nonrecurring basis.

Finally, a number of minor editorial or organizational

changes have been made in order to clarify or simplify the

advertising guidelines.

_

Several organizations suggested that the guidelines make

specific reference to the roles of other enforcement agen-

cies, including the Department of Justice and local agen-

cies. These comments suggested that the guidelines specify

that they do not alter or affect conciliation agreements or

court orders obtained by these agencies, as well as by the

Department. Such a disclaimer appears to be unnecessary,

since there is nothing in the guidelines to indicate an intent

to alter or affect agreements or orders obtained by the De-

partment and other agencies.

43a

This document is issued pursuant to section 7(d), De-

partment of Housing and Urban Development Act, 42

U.S.C. 3535(d).

The statement of Policy reads as follows:

PUBLICATION GUIDELINES FoR CoMPLIANCE WitH TitLeE VIII

OF THE Civit Ricuts Act or 1968

POLICY STATEMENT

Section 804(c) of title VIII of the Civil Rights Act of

1968, 42 U.S.C. 3604(c), makes it 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 (any building, structure, or portion

thereof which is occupied as, or designed or intended for

occupancy as, a residence by one or more families, and any

vacant land which is offered for sale or lease for the con-

struction or location thereof of any such building, structure,

or portion thereof) that indicates any preference, limita-

tion, or discrimination based on race, color, religion, or na-

tional origin, or an intention to make any such preference,

limitation or discrimination.

These advertising guidelines are being issued for the pur-

pose of assisting all advertising media, advertising agen-

cies, and all other persons who use advertising to make,

print, or publish or cause to be made, printed, or published

any classified or display advertisement with respect to the

. 1 AY ERROR SRE GATE ETO Tere gE

— PB MER AACE VaR NR ta oe eee gent eee! ——

REALE OTERO ak

e ate .

—

44a

sale or rental of a dwelling by the owner or his agent, in

compliance with the requirements of title VIII.

Conformance with these guidelines will be considered in

evaluating compliance with title VIII in connection with in-

vestigations by the Assistant Secretary of advertising prac-

tices and policies under the title.

A. The use of words, phrases, sentences and visual aids

which have a discriminatory effect. The following words,

phrases, symbols, and forms typify those most often used in

residential real estate advertising to convey either overt or

tacit discriminatory intent. Their use should therefore be

avoided in order to eliminate their discriminatory effect.

In considering a complaint under title VIII, the Assistant

Secretary will normally consider the use of these and com-

parable words, phrases, symbols, and forms to indicate

possible violation of the title and to establish a need for

seeking resolution of the complaint, if it is apparent from

the context of the usage that discrimination within the

meaning of the Title is likely to result.

1. Words descriptive of dwelling, landlord, and tenant.

White private home, Colored home, Jewish home.

2. Words indicative of race, color, religion, or national

origin. Negro, Hispano, Mexican, Indian, Oriental, Black,

White, WASP, Hebrew, Irish, Italian, European, ete.

3. Catch words. Restricted, ghetto, disadvantaged. Also,

words such as private, integrated, traditional, ‘‘board ap-

proval’’ or ‘‘membership approved’’ if used in a discrim-

inatory context.

4. Symbols or logotypes. Symbols or logotypes which im-

ply or suggest rave, color, religion, or national origin.

5. Colloquialisms. Locally accepted words or phrases

which imply or suggest race; color, religion, or national

origin,

—

6. Directions to the real estate for sale or rent (use of

maps or written instructions). References to real estate lo-

caiton made in terms of racially or ethnically significant

landmarks such as an existing Black development (signal to -

Blacks) or an existing development known for its exclusion

of minorities (signal to Whites). Specific directions given

from a racially or ethnically significant area.

45a

7. Area (location) description. Use of religious, ethnic,

or racial facilities to describe an area, neighborhood, or

location.

B. Selective use of advertising media or content with dis-

criminatory effect. The selective use of advertising in vari-

ous media and with respect to various housing developments

or sites can lead to discriminatory results and may indicate

a violation of title VIII.

1. Selective geographic impact. Such selective use may

involve the strategic placement of billboards, brochure ad-

vertisements distributed within a limited geographic area

by hand or in the mail, or advertising in particular geo-

graphic coverage editions of major metropolitan news-

papers, or in local newspapers which are mainly advertising

vehicles for reaching a particular segment of the commu-

nity, or in displays or announcements only in selected sales

offices.

2. Selective use of equal opportunity slogan or logo. Such

selective use may involve using the equal opportunity slo-

gan or logo in advertising reaching some geographic areas,

but not others, or with respect to some properties but not

others.

3. Selective use of human models. Such selective adver-

tising may also involve the use of human models primarily

in media that cater to one racial or ethnic segment of the

population that is not balanced by a complementary adver-

tising campaign that is directed at other groups, or the use

46a

by a developer of racially mixed models to advertise one

of the developments and not others.

C. Policy and practices guidelines. The following guide-

lines are offered as suggested methods of assuring equal

opportunity in real estate advertising:

1. Guidelines for use of logotype, statement, or slogan.

All advertising of residential real estate for sale or rent

can contain an Equal Housing Opportunity logotype, state-

ment or slogan as a means of educating the homeseeking

public that the property is available to all persons regard-

less of race, color, religion, or national origin. Table 1 (see

appendix) indicates suggested sizes for the use of the logo-

type. In all space advertising which is less than 4 column

inches of a page in size, the Equal Housing Opportunity

slogan should be used. The advertisement may be grouped

with other advertisements under a caption which states that

the housing is available to all without regard to race, color,

religion, or national origin. Alternatively, 3-5 percent of

the advertisement copy may be devoted to a statement of

the equal housing opportunity policy of the owner or agent.

Table 2 (see appendix) contains copies of the suggested

Equal Housing Opportunity logotype, statement and slogan.

2. Guidelines for use of human models. Human models in

photographs, drawings, or other graphic techniques may be

used to indicate racial inclusiveness. If models are used in

display advertising campaigns, the models should be clearly

definable as reasonably representing both majority and

minority groups in the metropolitan area. Models, if used,

should indicate to the general public that the housing is

open to all without regard to race, color, religion, or na-

tional origin, and is not for the exclusive use of one such

group.

3. Guidelines for notification of Fair Housing Policy. (a)

Employees. All publishers of advertisements, advertising

agencies, and firms engaged in the sale or rental of real

ee. Se ORR RE Arte

ee

47a

estate should provide a printed copy of their nondiscrim-

inatory policy to each employee and officer.

(b) Clients. All publishers of advertisements and adver-

tising agencies should post a copy of their nondiscrimina-

tion policy in a conspicuous place wherever persons come

to place advertising and should have copies available for all

firms and persons using their advertising services.

(c) Publisher’s notice. All publishers are encouraged to

publish at the beginning of the real estate advertising see-

tion a notice such as that appearing in Table 3 (see appen-

dix).

Effective date. This statement of policy shall be effective

May 1, 1972.

Samvue J. Smwmons,

Assistant Secretary

for Equal Opportunity.