Linmark Associates, Inc. v. The Township of Willingboro Brief for Respondents

    IN  TH E

^uprrmr (ta r t of %' InttrJn States
O c to ber  T e r m , 1976 

No. 76-357

LINMARK ASSOCIATES, INC. and
W ILLIAM  MELLMAN,

Petitioners,

V.

TH E TOWNSHIP OF W ILLINGBORO and 
GERALD DALY,

Respondents,

O n  W hit o f  C er tio ra ri to  t h e  U n ited  Sta tes C ourt o f 
App ea l s  fo r  th e  T hird  C ir c u it

B R I E F  F O R  R E S P O N D E N T S

MYRON H. G O TTLIEB,
KESSLER, TU TEK  and G O TTLIEB, 

Counsel for Respondents,

325 Farnsworth Avenue,
Bordentown, New Jersey 08505

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



T A B L E  O F  C O N T E N T S

Questions Presented .................................... ............... 1

Statement of the C a s e ......... ................................................. 2

A. Historically Willingboro’s housing pattern has
been fully integrated . . .  ................................ . . 2

B. Whenever racial conflict emerged, Township
Council acted positively to minimize and, 
hopefully, eliminate any d iscord ....................  3

C. To combat a developing fear psychology, 
Township Council prohibited “for sale” signs 3

D. Several reasons were expressed by a Town­
ship Council for approving the ordinance, 
including a desire to maintain an integrated 
housing pattern in the com m unity................ 6

E. After adoption of the ordinance, the fear psy­
chology subsided although as many homes 
were being sold after as before the ordinance 
was ad opted ............................................................. 7

F. The District Court concluded that the ordi­
nance was unconstitutional while the Court of 
Appeals disagreed..........................    8

Summary of Argument ......................................    10

A r g u m e n t :

I. Willingboro Township Council acted properly in 
prohibiting “for sale” signs ........................................  12

A. The provision and maintenance of open hous­
ing is a national g o a l ............................................  12

B. Preservation of integration is consistent with
open housing ............................................................  16



11

T A BL E  O F CONTENTS

A r g u m e n t :

C. Segregated housing has practical ramifications
which cannot be to lerated .................................. 17

D. Experience has shown that human fears often
turn integrated communities into resegregated 
ones ...........................................................................  18

E. Willingboro was showing the symptoms of the
initial stage of resegregation and effectively 
acted to retard this m ovem ent...........................  20

II. An ordinance prohibiting “for sale” signs in an ef­
fort to combat a fear psychology leading to the re- 
segregation of a community does not violate the
first and fourteenth amendments...............................  27

A. Willingboro’s ordinance advances a significant
governmental interest—the halting of resegre­
gation ........................................................................ 28

B. Willingboro’s ordinance, in advancing a signi­
ficant governmental interest, is a reasonable 
restriction on commercial advertising...........  29

Conclusion ................................................................................. 36

Exhibit A ...................................................................................  37

C a s e s  C i t e d :

Barrick Realty, Incorporated v. City of Gary, Indiana,
491 F.2d 161 (7  Cir. 1 9 7 4 ) .................................. 21, 26

Bigelow v. Virginia,
421 U.S. 809 (1975) 27-28, 32



T A B L E  O F CONTENTS

Browns v. State Realty Company,
304 F. Supp. 1236 (N.D. Ga. 1969) ......................... 21

Buchanan v. Warley,
245 U.S. 60 (1917) ...................................................  13

Chicago Real Estate Board v. City of Chicago,
36 Ill.2d 530, 224 N.E.2d 793
(Sup. Ct. 1967) ............................................................. 34

Crow v. Brown,
332 F. Supp. 382 (N.D. Ga. 1971), aff’d per 
curiam 457 F.2d 788 (5 Cir. 1972) ......................... 17

DeKalb Real Estate Board v. Chairman and Board 
of Commissioners of Roads and Revenue for 
DeKalb County,

378 F. Supp. 748 (N.D. Ga. 1973) ......................... 27

Elfbrandt v. Russell,
384 U.S. 11 (1966) .................................................... 30

Garrett v. City of Hamtramck,
357 F. Supp. 925 (E.D. Mich. 1973) ....................  14

Gibson v. Florida Legislative Investigation Committee,
372 U.S. 539 (1963) ...................................................  30

Harmon v. Tyler,
273 U.S. 668 (1927) ...............................................  13

Hicks v. Weaver,
302 F. Supp. 619 (E.D. La. 1969) ....................  14

Jones v. Alfred H. Mayer Co,
392 U.S. 409 (1968) ...................................................  15

Kovacs v. Cooper,
336 U.S. 77 (1949)

C ases C it e d :

31



IV

T A BL E  O F CONTENTS

Lehman v. City of Shaker Heights,
418 U.S. 298 (1974) ...................... ............................  30

Levitt and Sons, Inc. v. Division Against Discrimination 
in the State Department of Education,

31 N.J. 514,158 A.2d 177 (I9 6 0 ), appeal dismissed,
363 U.S. 418 (1960) ...............................................  2, 12

McLaurin v. Oklahoma State Regents for 
Higher Education,

339 U.S. 637 (1950) ...................................................  15

Milliken v. Bradley,
418 U.S. 717 (1974) ...............................................  17

National Association for the Advancement of 
Colored People v. Button,

371 U.S. 415 (1963) ................................................. .. 30

Near v. Minnesota,
283 U.S. 697 (1939) ...................................................  30

Norwalk CORE v. Norwalk Redevelopment Agency,
395 F.2d 920 (2  Cir. 1968) ............................... .. 14

Otero v. New York City Housing Authority,
484 F.2d 1122 (2 Cir. 1973) ....................................... 20

Packer Corporation v. Utah,
285 U.S. 105 (1932) ...................................................  31

Pittsburgh Press Co. v. Pittsburgh Commission 
on Human Relations,

413 U.S. 376 ( 1 9 7 3 ) ...............................................  30, 34

Schenck v. United States,
249 U.S. 47 (1919) ...................................................... 29

C ases C it e d :



V

Shannon v. United States Department of 
Housing and Urban Development,

436 F.2d 809 ( 3 Cir. 1 9 7 0 ) ........................................... 13

Shelley v. Kraemer,
334 U.S. 1 (1948) ............................. ..........................  13

Summer v. Township of Teaneck,
53 N.J. 548, 251 A.2d 761 (1969) ......................... 29

Sweatt v. Painter,
339 U.S. 629 (1950) .................................................... 15

TrafEcante v. Metropolitan Insurance Co.,
409 U.S. 205 (1972) ...........................................  14, 17

United States v. Bob Lawrence Realty, Inc.,
474 F.2d 115 (5 Cir. 1973), cert, denied, 414 U.S.
826 (1973), rehearing denied, 414 U.S. 1087 
(1973) .....................................................................  12, 34

United States v. Bob Lawrence Realty, Inc.,
313 F. Supp. 870 (N.D. Ga. 1970) ..................... 34-35

United States v. Hunter,
459 F.2d 205 ( 4 Cir. 1972), cert, denied,
409 U.S. 934 (1972), rehearing denied,
413 U.S. 923 (1973) .................... .. ...........................  12

United States v. Mintzes,
304 F. Supp. 1305 (D. Md. 1 9 6 9 ) .............................  35

Valentine v. Chrestensen,
316 U.S. 52 (1942) ...................................................  30

Village of Belle Terre v. Boraas,
416 U.S. 1 (1974) .............

T A B L E  O F CONTENTS

C ases C it e d :

31



VI

C a s e s  C i t e d :

Virginia State Board of Pharmacy v. Virginia 
Citizens Consumer Council, Inc.,

425 U.S. 728 (1976) .................................................... 28

Young v. American Mini Theatres, Inc.,
-  U.S. 49 L.Ed.2d 310 (1976) ....................  31, 34

S t a t u t e s  C i t e d :

42 U.S.C. §3604 ......... .. 2, 12, 34

42 U.S.C. §3610 .................................................   14

N.J.S.A. 10:5-1 et seq..................................................... 12, 34

N.J.S.A. 10:5-10 ...................................................................... 3

N.J.S.A. 10:5-12(k) .............................   34

U n i t e d  S t a t e s  C o n s t i t u t i o n a l  P r o v i s i o n s :

Amendment I .................................................................  passim

Amendment X I V ............................................................  passim

O t h e r  A u t h o r i t i e s  C i t e d :

Bradburn, Sudman and Gockel, Side By S id e-
Integrated Neighborhoods in America (1971) . .  19

Conser, Human Rights and the Realtor (1963) ...........  19

Cosseboom, Grosse Pointe, M ichigan-Race Against
Race (1972) ..................................   19

Glazer, Affirmative Discrimination-Ethnic Inequality 
and Public Policy (1975) .................................  18, 19

T A BL E  O F CONTENTS



vn

Grodzins, The Metropolitan Area as a Racial Problem 
(1958) ...............................................................................  20

Johnson, Call Me Neighbor, Call Me Friend: The Case 
History of the Integration of a Neighborhood on 
Chicago’s South Side (1965) .................................. 13

Myrdal, An American Dilemma: The Negro Problem
and Modern Democracy (1944) ....................  13, 18

Report of the United States Commission on Civil
Rights, Equal Oportunity in Suburbia (1974) . . 18

Schelling, A Process of Residential Segregation:
Neighborhood Tipping, Racial Discrimination in 
Economic Life (1972) ...............................................  21

Taeuber and Taeuber, Negroes in Cities ( 1 9 6 5 ) ...........  19

Wolf, “The Tipping Point in Racially Changing 
Neighborhoods,” 29 American Institute of 
Planning Journal 2 1 7 ............. ..........................

T A BL E  O F CONTENTS

O th er  Auth orities C it e d :

21



1

QUESTIONS PRESENTED

1. Is Willingboro Township’s ordinance, adopted to 
restrain an existing fear psychology which was threaten­
ing to destroy its integrated residential housing, and affect­
ing only present but not prospective community residents, 
permissible under the equal protection clause of the Four­
teenth Amendment?

2. Is Willingboro’s ordinance prohibiting residential 
“for sale” signs a permissible restriction on commercial 
speech, where the restriction furthers a superior govern­
mental interest and is the minimum limitation necessary 
to accomplish that purpose?



2

S T A T E M E N T  O F  T H E  C A S E

A . H istorically  W illingboro’s housing pattern  has 
been  fully integrated.

Willingboro Township is a community of approxi­
mately 45,000 residents located in Burlington County, 
New Jersey (U.S.C.A. Joint Appendix 128a).1 Its signifi­
cant residential development commenced in the late 1950’s 
and is attributable mainly to Levitt and Sons, Inc. (Jt. App. 
182a). At the outset Levitt refused to sell its homes to 
minority group members. But, before the Township had 
a chance to develop along segregated lines, this racially- 
based practice was enjoined by the New Jersey Supreme 
Court. Levitt and Sons, Inc. v. Division Against Discrim­
ination in the State Department o f Education, 31 N.J. 514, 
158 A.2d 177 (1960), appeal dismissed, 363 U.S. 418 
(1960). Immediately thereafter, Levitt instituted a policy 
of actively encouraging the development of the Township 
as an integrated community (Jt. App. 182a).

As a result, Willingboro now has a totally integrated 
housing pattern. None of the ten different areas or 
“parks” (i.e., Millbrook Park, Buckingham Park, Garfield 
Park, etc.) constituting Willingboro can be denominated 
a “white section”, a “black section” or a “Spanish-speaking 
section”; each park contains a diversity of almost all racial 
and ethnic groups living together (Jt. App. 183a; 214a; 
246-7a). As indicated in the decision below, “a close 
approach was achieved to that housing ideal sought by 
fair-minded citiezns, mandated by the federal Fair Hous­
ing Act, 42 U.S.C. §3604, and impelled by our Constitu­
tion.” 535 F.2d at 789.

1. Hereinafter, for purposes of brevity, references to the Joint Appendix 
utilized in the Court of Appeals will merely be cited as “Jt. App.”



Statement o f the Case 3

B . W hen ever racia l conflict em erged , Tow nship  
Council acted  positively to m in im ize and, h op e­
fully, elim inate any discord.

In the late 1960 s racial problems and conflict sur­
faced in Willingboro. Township Council, the governing 
body of Willingboro Township, responded in several ways. 
One action taken was the creation of the Willingboro 
Human Relations Commission ( Jt. App. 183a; 231a). That 
body is statutorily charged with attempting “to foster 
through community effort or otherwise, good will, coop­
eration and conciliation among the groups and elements 
of the inhabitants of the community” and was empowered 
by Township Council “to make recommendations to 
[Township Council] for the development of policies and 
procedures in general and for programs of formal and 
informal education that will aid in eliminating all types 
of discrimination based on race, creed, color, national or­
igin, ancestry, age, marital status or sex.” N.J.S.A. 10:5-10.

The Township also became a member of National 
Neighbors, an organization promoting integrated housing 
and discussing ways to overcome problems inherent with 
this action (Jt. App. 183a).

Despite these actions, not all of the racial problems 
in Willingboro were solved. Specifically, complex psy­
chological problems due to the mobility of Willingboro’s 
suburban residential population persisted.

C. To com bat a  developing fe a r  psychology, T ow n­
ship Council proh ib ited  “fo r  sale” signs.

The Fort Dix Military Reservation and McGuire Air 
Force Base are both located close to Willingboro and 
many of Willingboro s residents are either stationed at or 
are civilian employees at these installations. This fact



4 Statement of the Case

alone imposes a certain transient nature on the community. 
However, when to this are added the usual reasons for 
residents being required to relocate (job transfer, change 
in family size or personal financial circumstances), the in­
tense competition by over eighty realtors’ offices for the 
sale of homes in Willingboro, and the uniformity and prox­
imity of residential construction, the proliferation of “for 
sale” signs and the documented reluctance of realtors to 
remove “sold” signs after they were up for five days, con­
trary to the prior ordinance, helped to create the impres­
sion that many people were leaving the community (Jt. 
App. 233a). As a result, a fear psychology developed 
among many home owners. A former chairperson of the 
Human Relations Commission, Valerie Gladfelter indicated 
that:

“People expressed concern on seeing large numbers 
of for sale signs that neighborhoods would undergo 
rapid racial change, and this was a cause of worry 
to them” (Jt. App. 233a).

Councilman William Kearns described the fear psy­
chology in another way:

“. . . [PJeople in the community were expressing a 
desire to sell their homes and move to other areas of 
Burlington County because what they sensed was a 
lack of stability or a large turnover in the community, 
and that this large turnover was resulting in a sub­
stantial influx of minority groups into the community 
beyond what could be sustained without the com­
munity itself turning into a ghetto within the county.

“People would indicate that: ‘Everybody on my street 
is moving. Eve got to get out of this town before it’s 
too late.’

“People would express a concern of: ‘With all the turn­
over, my property value is going to go down. I got 
to get out’ ” (Jt. App. 181a).



Statement o f the Case 5

Councilman Steven Heath related that:

“You know, when you are a property owner, whether 
the sales are going or not, you have a general opinion.
You drive around. People would see a lot of signs.
They would say: ‘Everybody wants to sell. This 
must be because there are too many blacks in town; 
and if we don’t do something about it, boy it’s just 
going to go, and let’s sell and get out now’ ” (Jt.
App. 207a).

While Township Council accorded no rationality to 
this prevailing attitude, it was faced with a psychological 
problem to which it believed it must respond (Jt. App. 
181a). The Human Relations Commission, after an in­
vestigation noting the increasing panic selling resulting 
from the fear psychology, recommended to Township 
Council that “for sale” signs be prohibited in residential 
areas of the Towwnship. Alexander Porter, one of the mem­
bers of the Human Relations Commission, described the 
reasoning behind the recommendation:

“I think the Commision would like to see a community 
which is as harmonious as it would choose to be with­
out the kind of pressures, if I may use that term, which 
would induce people to sell when in fact they don’t 
want to sell; and I think that’s the thing that the 
ordinance was directed at.

“Individuals were responding and reacting to a rash 
of signs, or one sign which would lead to another, and 
another and another.

“I think that’s the concern the Commission was trying 
to address.

“If the neighborhood was or is to be all black, and if 
that is a decision by choice, of the individuals in­
volved, then the Commission I believe would have 
no concern about that. But if neighbors, residents of 
the township are being pushed into this kind of



6 Statement of the Case

thing by the presence of a sign or signs, then I think 
the Commission’s concern would be that that not ought 
to be, this is not the free choice that people ought to 
exercise, should exercise” (Jt. App. 244a-245a).

Township Council investigated how similar ordi­
nances had worked in other municipalities (Jt. App. 120a- 
121a; 184a-185a). It held two public hearings, one be­
fore and one after the drafting of the ordinance under re­
view (Jt. App. 186a). The ordinance prohibiting “for 
sale signs was adopted on March 18, 1974.

D . S ev era l reasons w ere expressed  by Tow nship  
Council fo r  approving the ordinance, including 
a desire to maintain an integrated housing pat­
tern in the community.

While several reasons for the enactment of the ordi­
nance appear in the record, two of them predominate: 
(1 ) to minimize the fear psychology which had developed 
in the residents of the Township because of the prolifera­
tion of “for sale” signs; and (2 ) to maintain an integrated 
housing pattern in the community (Jt. App. 181a; 182a; 
191a; 200a-201a; 207a; 210a; 218a). Other less significant 
reasons given are the difficulty in administrative enforce­
ment of the previous ordinance requiring removal of a 
“sold” sign after five days, and aesthetic considerations 
(Jt. App. 188a; 200a; 209a; 209a-210a).

There was no testimony to the effect that a motive 
was to restrict the number of minority residents residing 
in Willingboro. Indeed, the evidence was to the contrary. 
Councilman Kearns testified that:

“Q In your discussion in council, was it ever your 
feeling that council was utilizing this ordinance to 
restrict minority groups from moving into town?



Statement o f the Case 7

“A Absolutely not.

“Q Blacks, Spanish persons, what-have-you?

“A Absolutely not. We were trying to prevent the 
emotional reaction on the part of sellers. It was in 
no way related to people moving into the community”
(Jt. App. 185a).

Similarly, Councilman Heath commented that he had 
“no preconceived notion as to what the percentages of 
people ought to be.” (Jt. App. 214a).

The Chairman of the Human Relations Commission, 
the Reverend Ernest Lyght, testified that “balance” could 
not be equated with a ratio and had no numerical conno­
tation; rather it was “[s]imply the openness and ability to 
live in the community and anywhere in the community 
one chooses.” (Jt. App. 249a).

E . A fter  adoption o f the ordinance, the fe a r  psy­
chology subsided although as many hom es w ere  
being sold a fter  as b e fo re  the ordinance was 
adopted.

Two real estate brokers testified on the number of 
homes being sold in Willingboro before and after the adop­
tion of the ordinance under review. One indicated that 
there was no significant change (Jt. App. 163a) while the 
other believed there was an increase in sales (Jt. App. 
222a). There was no testimony indicating a diminution 
in sales. Yet everyone agreed that the ordinance had re­
sulted in a decrease in the previously existing fear psychol- 
ogy (Jt. App. 163a; 191a-192a; 208a; 222a-223a; 234a; 
241a-242a; 248a-249a; 250a).



8 Statement o f the Case

F .  T he D istrict C ourt concluded that the ordinance
w as unconstitutional w hile the C ourt o f A ppeals
disagreed.

Suit was commenced by a realtor and by a corpora­
tion owning a home in Willingboro.2 (Jt. App. la ) . After 
a two day trial, the District Court for the District of New 
Jersey concluded that the ordinance was unconstitutional, 
holding that (1 ) “the ordinance brings about a ■ serious 
denial of a property owners [sic] right to freely and reason­
ably express to others the desire to sell in violation of the 
First Amendment” and (2 ) “in its application the Will­
ingboro ordinance results in an infringement upon the 
fundamental right to travel.”

On appeal, the United States Court of Appeals for 
the Third Circuit, in a two to one decision, reversed the 
District Court decision and upheld the constitutionality of 
the ordinance. That Court concluded that while commer­
cial speech was entitled to First Amendment protection, 
in assessing and balancing the interests involved, “[t]he 
preservation of a desirable community impels a priority of 
the community’s needs over commercial transactions in the 
community as they see fit, so long as those community 
needs are reasonably established and the means chosen to 
meet them do not infringe upon the fundamental constitu­
tional rights of individual businessmen.” It then deter­
mined that “the limited denial occasioned by the ordinance 
herein [resulted] from a reasonable exercise of the police 
power in furthering the public welfare by forestalling 
panic selling and its offspring, segregation.” Finally, the 
Court found that “[s]ellers are free to sell to any econom­
ically qualified buyer. Economically qualified buyers of

2. A review of the deeds on file in the office of the Burlington County 
Clerk discloses that the subject property was subsequently sold on April 2 l, 
1976.



Statement o f the Case 9

any racial group are free to buy any home in any section 
of Willingboro. No burden on commerce or a deterring 
influence on the individual right to migrate has been 
shown.”



1 0

S U M M A R Y  O F  A R G U M E N T

Willingboro Township is a community which exempli­
fies the proposition that people of differing racial, religious 
and ethnic backgrounds can live together. When it be­
came apparent that there was a growing fear psychology 
threatening a change from an open, integrated commu- 
nitv to a resegregated one, and that the proliferation of 
“foi sale” signs was the direct cause of this fear psychology, 
T oys nship Council adopted an ordinance prohibiting “for 
sale signs.

I .

Society has a significant interest in maintaining an 
integrated community such as Willingboro. When “minor­
ity enclaves” develop, serious consequences ensue, ranging 
from ghettoization, with its resultant tensions and violence, 
to a diminution of economic opportunity, to added costs to 
society generally to overcome the handicaps associated 
with a separation of minorities. That interest is so impor­
tant that reasonable action taken to prevent the resegrega­
tion of a community must be upheld.

II.

The problem of racial residential succession, accele­
rated by a fear psychology, was identified by Township 
Council. The proliferation of “for sale” signs was diag­
nosed as the cause of the problem. Township Council 
was very concerned because Willingboro had achieved 
and highly valued its full residential integration. Its action 
in adopting the ordinance was an attempt to maintain 
these values.

III.

The ordinance adopted by Township Council did not 
attempt to establish a quota on the number of minority



Summary o f Argument 1 1

group members who may reside in Willingboro. Its im­
pact was not on prospective residents, since the absence of 
“for sale” signs did not preclude the purchase of homes, 
other avenues to obtain this information being readily 
available. Nor can it be cogently asserted that the prohi­
bition of “for sale” signs was aimed at prospective minor­
ity group residents, since the absence of “for sale” signs 
pertained to all prospective residents. The impact of the 
ban of “for sale” signs was solely on present residents of 
the community and only affected them to the extent that 
it would remove an emotional cause for wanting to leave 
Willingboro.

IV.

The ordinance resulted in a significant reduction in 
the fear psychology and eliminated an artificial challenge 
to the maintenance of an integrated community.

V.

Commercial speech, while entitled to First Amend­
ment protection, may be restricted when it conflicts with 
a paramount governmental interest. Where commercial 
speech, because of the way the public generally perceives 
it, results in a situation antithetical to a paramount gov­
ernmental interest, it can be proscribed. So long as the 
governmental limitation is the minimum interference rea­
sonably necessary to protect the affected public interest, 
there is no violation of the First Amendment. The con­
tent of the particular commercial speech is a factor in 
determining the extent of its protection.



12

A R G U M E N T

I. W illingboro Township Council acted properly in 
prohibiting “for sale” signs.

A . T h e provision and m aintenance o f open housing  
is a national goal.

It is apparent that the provision and maintenance of 
open3 housing is a national goal. Many statutes have 
been adopted to ensure progress toward this end. 42 
U.S.C. §3604 makes unlawful certain activity which would 
inhibit openness in housing “because of race, color, reli­
gion, sex, or national origin.” Similar provision is available 
in New Jersey under N.J.S.A. 10:5-1 et seq., the Law 
Against Discrimination.4 The civil rights granted by these 
enactments have been diligently enforced in both Federal 
and New Jersey judicial forums. For example, see United 
States v. Hunter, 459 F.2d 205 (4 Cir. 1972), cert, denied, 
409 U.S. 934 (1972), rehearing denied, 413 U.S. 923 
(1973); United States v. B ob Law rence Realty, Inc., 474 
F.2d 115 (5  Cir. 1973), cert, denied, 414 U.S. 826 (1973), 
rehearing den ied , 414 U.S. 1087 (1973); Levitt and Sons, 
Inc. v. Division Against Discrimination in the State D e­
partment o f Education, supra.

While the goal of open housing must place primary 
reliance on the United States Constitution, the objective 
as implemented does not date back to the ratification of 
the Constitution or even to the mid-Nineteenth Century 
and the adoption of the Fourteenth Amendment. Rather,

3. The term “openness” was used by the chairman of the Human Rela­
tions Commission, the Reverend Ernest Shaw Lyght, as being “the ability to 
live in the community and anywhere in the community one chooses” ( Jt. App. 
249a). This definition of “openness” shall be the one utilized in this Brief.

4. It should be noted that on the second page of the real estate listing 
agreements, Exhibits P-4 and P-5, is reproduced a Memorandum from the 
Attorney General of New Jersey explaining a property owner’s responsibilities 
under the Law Against Discrimination (Jt. App. 125a; 127a).



Argument 13

its expression is one of the Twentieth Century, as our gov­
ernmental institutions have responded to the needs of the 
people. In Buchanan v. W arley, 245 U.S. 60 (1917), this 
Court concluded that an ordinance of the City of Louis­
ville, Kentucky, had as its purpose the compulsory sepa­
ration of races. The ordinance was held to be unconstitu­
tional under the Fourteenth Amendment. Ten years later, 
in Harmon v. Tyler, 273 U.S. 668 (1927), an ordinance 
forbidding a black from establishing a home in a white 
community or a white from establishing a home in a black 
community without the written consent of those residing 
in the particular areas was declared to be invalid. Twenty- 
one years passed until Shelley v. Kraemer, 334 U.S. 1 
(1948), where it was held that a restrictive covenant which 
excluded “people of the Negro or Mongolian Race” from 
the occupancy of real estate for residential purposes could 
not be enforced in a state court, since it would be vio­
lative of the Fourteenth Amendment.

From this somewhat sparse, although consistent, back­
ground of judicial decisions, in conjunction with Congres­
sional enactments, developed the national policy of open 
housing. However, there was an added ingredient. While 
before World War II, the policy was proscriptive in char­
acter, merely declaring what could not be done, after that 
event, the policy became more positive, developing into a 
concept of what should be done.5 6 This has led to a multi­
tude of judicial decisions, each serving to further articulate 
this dynamic policy of openness in housing and its hand­
maiden, integration. These cases range from Shannon v. 
United States Department o f Housing and Urban D evel­
opment, 436 F.2d 809 ( 3 Cir. 1970), requiring an urban

5. Changes in our national policies toward minorities have, according to 
some, a direct relationship with wars involving this country. See Johnson, 
Call Me N eighbor, Call M e Friend: T he Case History o f  the Integration o f
a N eighborhood on C hicago’s South Side (1 9 6 5 ), 46; and Myrdal, An Am erican  
P ilem m a: T he N egro Problem  and M odern D em ocracy  (1 9 4 4 ).



14 Argument

renewal plan to consider the effect of the change in the 
type of housing to be made available by the plan on the 
racial composition of the renewal area; to Norwalk CORE 
v. Norwalk Redevelopm ent Agency, 395 F.2d 920 (2  Cir. 
1968), holding that a cause of action is alleged where 
individuals are displaced by an urban renewal project 
which did not plan for the relocation of blacks and Span­
ish-speaking displacees to the same extent that it did for 
whites; to Garrett v. City o f Hamtramck, 357 F. Supp. 
925 (E.D. Mich. 1973), determining that a city imple­
menting an urban renewal project intentionally designed 
to have a greater effect on black residents would be re­
sponsible for securing proper housing for the displacees; 
to H icks v. W eaver, 302 F. Supp. 619 (E.D. La. 1969), 
holding that low-cost housing should not be constructed at 
certain sites, the effect of which would be to perpetuate 
segregation in public housing. Each of these decisions 
illustrate the change to a positive approach in our national 
housing policy.

This policy was recognized by this Court in Traffi- 
cante v. M etropolitan Insurance Co., 409 U.S. 205 (1972). 
In Trafficante, two tenants—one white and one black—at 
an apartment complex filed suit against the owner alleging 
a discrimination against nonwhites on the basis of race in 
the rental of apartments within the complex in violation 
of 42 U.S.C. §3610. They alleged injury based upon the 
loss of the social benefits of living in an integrated com­
munity, the deprivation of business and professional ad­
vantages which would have accrued had they lived in an 
integrated community and the suffering of embarrassment 
and economic damage from being stigmatized as residents 
of a white ghetto. In recognizing a cause of action had 
been alleged, this Court observed that “the alleged injury 
to existing tenants by exclusion of minority persons from



Argument 15

the apartment complex is the loss of important benefits 
from interracial association.” 409 U.S. at 209-210. See 
also Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 
which held that 42 U.S.C. §1982 bars all racial discrimina­
tion, private as well as public, in the sale or rental of 
property.6

This Court’s statement in Jones, in commenting upon 
the pledge of the Thirteenth Amendment, bears reitera­
tion. Observing that “when racial discrimination herds 
men into ghettos and makes their ability to buy property 
turn on the color of their skin, then it too is a relic of 
slavery,” this Court went on to say:

“Negro citizens, North and South, who saw in the 
Thirteenth Amendment a promise of freedom— 
freedom to ‘go and come at pleasure’ and to ‘buy and 
sell when they please’—would be left with ‘a mere 
paper guarantee’ if Congress were powerless to assure 
that a dollar in the hands of a Negro will purchase 
the same thing as a dollar in the hands of a white 
man. At the very least, the freedom that Congress 
is empowered to secure under the Thirteenth Amend­
ment includes the freedom to buy whatever a white 
man can buy, the right to live wherever a white man 
can live. If Congress cannot say that being a free 
man means at least this much, then the Thirteenth 
Amendment made a ppromise the Nation cannot keep.”
392 U.S. at 443.

6. This Court’s recognition of the positive nature of our national policy 
toward securing equal opportunity for minorities has, of course, not been solely 
confined to the area of open housing. For example, in the field of higher 
education, Siveatt v. Painter, 339 U.S. 629 (1 9 5 0 ), held that a segregated 
law school for black students could not provide blacks with equal educational 
opportunities; and M cLaurin v. O klahom a State Regents fo r  H igher Education, 
339 U.S. 637 (1 9 5 0 ), concluded similarly with respect to special racial regula­
tions at a graduate school. It is interesting to note that this Court recognized 
specifically that the “restrictions impair and inhibit his ability to study, to 
engage in discussions and exchange views with other students, and, in general, 
to learn his profession.” 339 U.S. at 641,



16 Argument

Accordingly, it is evident that open housing is not 
only a national goal but, indeed, a national priority.

B . P reservation  o f integration is consistent with open
housing.

Petitioners have asserted that Willingboro, by regulat­
ing in order to maintain integration in the community, 
is acting contrary to the goal of open housing, which as­
sumes unregulated freedom of choice. However, even a 
cursory analysis of this argument exposes its fallacy.

As noted, open housing may be defined as “the ability 
to live in the community and anywhere in the community 
one chooses” (Jt. App. 249a), subject only to financial 
considerations. Integration in housing, or the residing 
together of members of different racial, ethnic and reli­
gious groups in a community, does not interfere with the 
ability to purchase a home of one’s choice. Prospective 
purchasers are not restricted from buying a home because 
a community is integrated, so long as no numerical quotas 
are established. Current residents are not precluded from 
living in a community because it has open housing. Liv­
ing in an integrated community has an impact upon its 
residents, but it bars no prospective purchaser from living 
there.

Similarly, the assertion that the preservation of inte­
gration requires the use of numerical quotas is erroneous 
as well as being contrary to the record. Maintaining inte­
gration in an already integrated community is not depen­
dent upon the numbers of a group represented. And the 
testimony at trial clearly indicated that this was not Town­
ship Council’s intent or desire. Council only wanted to 
forestall a breakdown of Willingboro’s integration based 
upon an emotional pressure, not rational consideration. 
This does not require the establishment of quotas.



Argument 17

C. S egregated  housing has practical ram ifications
w hich cannot be  tolerated .

Segregated, as opposed to integrated, housing does 
violence to everyone, whites, blacks and other minority 
group members alike. This was recognized by Congress 
and, through it, by this Court in Trafficante, supra. Segre­
gated housing not only harms society because it precludes 
people from obtaining the benefits of a full interaction 
between various groups, but it also leads to other prob­
lems. For instance, in Crow v. Brown, 332 F. Supp. 382 
(N.D. Ga. 1971), a ffd  per curiam, 457 F.2d 788 (5  Cir. 
1972), in commenting upon the policies of governmental 
officials which furthered the concentration of public hous­
ing for low income blacks in the City of Atlanta and pre­
vented construction of such housing beyond the City 
limits, the Court specified some of the effects of a con­
tinuation of these policies:

“One of the consequences of this racial concentra­
tion is that it has become virtually impossible to 
achieve meaningful school desegregation. Indeed, 
as even a glimmering of objectivity will disclose, a 
dispersal of urban housing patterns is the only alter­
native to massive bussing if desegregation, rather than 
resegregation, is to be achieved. [Citation omitted],
A second consequence has been a swelling of the 
unemployment rolls in the City since job opportunities 
have become more scarce each year, although they 
have increased in the suburbs” 332 F. Sup. at 391.

The Court in Crow  went on to take note of the report 
of the National Commission on Urban Problems, which 
indicated the possibility of increased tension and violence 
resulting in greater polarization of blacks and whites. See 
also Milliken v. Bradley, 418 U.S. 717 (1974).

However, segregated housing is not exclusively an 
urban problem. In the Report of the United States Com­



18 Argument

mission on Civil Rights, Equal Opportunity in Suburbia 
(1974), it was observed, at page 4, that, “[t]he decade 
of the sixties was one of increasing suburbanization of 
whites in metropolitan areas and of increasing concentra­
tion of blacks within central cities—in short, of increasing 
racial separation.” Willingboro exists in marked contrast 
to this trend.

On the other hand, in Glazer, Affirmative Discrimina­
tion -E thn ic  Inequality and Public Policy (1975), the 
author reflects upon the benefits accompanying integrated 
housing. Among these ar6 an equalization of education 
achievement, better social relations and whatever follows 
from it, better housing for minorities and a more rapid 
improvement of the economic position of blacks.

D . E x p erien ce  has show n that hum an fears  often turn
integrated  com m unities into resegregated  ones.

In An American Dilemma: The Negro Problem  and 
Modern D em ocracy  (1944), Gunnar Myrdal defined the 
“self-fulfilling prophecy:”

“When a few Negro families do come into a white 
neighborhood, some more white families move away.
Other Negroes hasten to take their places, because the 
existing Negro neighborhods are overcrowded due to 
segregation. This constant movement of Negros into 
white neighborhods makes the bulk of the white 
residents feel that their neighborhood's doomed to be 
predominantly Negro, and they move out—with then- 
attitudes against the Negro reinforced. Yet if there 
were no segregation, this wholesale invasion would not 
have occurred. But because it does occur, segrega- 
tional attitudes are increased, and the vigilant pressure 
to stall the Negroes at the borderline is kept up.”
Vol. I, at 623.



Argument 19

Examples of this process are endemic in recent litera­
ture. Some of the reasons have been related in Conser, 
Human Rights and the Realtor (1963), at page 9:

“The white resident resists Negro encroachment and 
eventually moves because: (1 ) he believes his white 
neighbors will move sooner or later; (2 ) he believes 
that if he remains too long he will not be able to find 
a white buyer; (3 ) he believes that, under the cir­
cumstances, property values will drop; (4 )  he be­
lieves that if he remains his own social position will 
be adversely affected; (5 ) he prefers that his children’s 
close associates and friends be of the same racial 
and similar religious background; (6 ) he is con­
cerned about intermarriage and the added problems 
that it bring; (7 ) if he can readily move, he choses 
that way out as being preferable. The real estate 
broker who is charged with seeking a buyer soon 
finds that he cannot interest white families except as 
the property can be had at a bargain price or terms. 
Therefore, the seller easily concludes that his best 
interests are served by arranging a sale to a Negro 
family. And so that process of replacement starts— 
and with each sale continues inexorably until the 
last white family moves.”

In Cosseboom, Grosse Pointe, Michigan—Race Against 
Race (1972), the fear reactions of whites to blacks mov­
ing into a previously all-white neighborhood are dramat­
ically documented. In Bradburn, Sudman and Gockel, 
Side By Side—Integrated N eighborhoods in America 
(1971), a sociological study of integrated communities, 
many reactions of tension and panic are presented (com­
mencing at page 64). Taeuber and Taeuber, Negroes in 
Cities (1965), reviews the pattern of racial residential suc­
cession (commencing at page 99). As noted in Glazer, 
Affirmative Discrimination—Ethnic Inequality and Public 
Policy, supra, at page 136: “Clearly, the separation into two



2 0 Argument

nations is proceeding apace.” To paraphrase a familiar ex­
pression, fearful whites, like Arabs, have been folding their 
tents and silently stealing away.

E . W illingboro was show ing the sym ptom s o f the 
initial stage o f resegregation  and effectively  acted  
to retard  this m ovem ent.

It would be naive at best (and it could probably be 
more accurately classified as dangerous) for anyone to fail 
to recognize the existence of certain human frailties. In 
the context of this case, the human frailty is fear, fear of 
living in a community which is changing from integrated 
to segregated. That fear becomes more real, more appar­
ent, more conscious as the “tipping point” comes closer. 
The tipping factor has been commented upon by many, 
including the judiciary. Otero v. New York City Housing 
Authority, 484 F.2d 1122, 1124 (2  Cir. 1973), recognized 
the existence of a racial “tipping factor” causing white 
residents to take flight and leading eventually to non-white 
ghettoization of the community. Grodzins, The Metro­
politan Area as a Racial Problem  (1958), comments, at 
page 6, upon this phenomenon:

“The process by which whites of the central cities leave 
areas of Negro in-migration can be understood as 
one in the social-psychology of ‘tipping a neighbor­
hood.’ The variations are numerous, but the theme 
is universal. Some white residents will not accept 
Negroes as neighbors under any conditions. But 
others, sometimes willingly as a badge of liberality, 
sometimes with trepidation, will not move if a rela­
tively small number of Negroes move into the same 
neighborhood, the same block, or the same apartment 
building. Once the proportion of non-whites exceeds 
the limits of the neighborhood’s tolerance for inter­
racial living (this is the ‘tip point’ ), the whites move 
out.”



Argument 2 1

See also Schelling, A Process o f Residential Segrega­
tion: N eighborhood Tipping, Racial Discrimination in 
Econom ic L ife  (1972) and Wolf, “The Tipping Point in 
Racially Changing Neighborhoods,” 29 American Institute 
o f Planning Journal 217.

One of the factors which makes a tipping point so 
significant is the existence of a fear which gives rise to it 
and which results in panic selling. And the role of “for 
sale” signs as a catalyst of that fear has itself been recog­
nized. See Browns v. State Realty Company, 304 F. Supp. 
1236 (N.D. Ga. 1969) and Barrick Realty, Incorporated v. 
City o f Gary, Indiana, 491 F.2d 161 (7 Cir. 1974). That 
factor and that catalyst existed in Willingboro.

Willingboro’s stance toward open housing and inte­
gration was documented at the trial of this case. In Will­
ingboro, white, black, Spanish-speaking and other minor­
ity residents live on the same street, on the same block. 
Willingboro, unlike so many other communities which 
profess to be integrated, does not restrict its minority resi­
dents to an enclave. This community-wide racial inter- 
spersion in housing has characterized Willingboro since 
the early 1960’s. However, a fear psychology began to 
develop, based on the proliferation of “for sale” signs.

The brief of Petitioners asserts that there was no 
causal relationship between the “for sale” signs and the 
fear psychology (Petitioners’ Brief-21). Petitioners do 
not refer to the record to substantiate this contention; 
rather, they attempt to reason that since a resident can be 
informed of the fact that a neighboring homeowner is sell­
ing his home, in other ways, whether through word of 
mouth, advertisements in newspapers and other media, 
seeing a moving van in front of the home or being aware 
of a new neighbor, “for sale” signs alone cannot cause the



22 Argument

fear psychology. Yet this analysis is contradicted by the 
proofs before the courts. In reality, the “for sale” signs 
and “sold” signs, maintained long after the five-day limita­
tion established by the prior ordinance were the visible, 
daily reminders that neighbors were moving which 
launched and enforced the fear psychology. Township 
Council recognized this and acted to eliminate the fear 
psychology.

On the other hand, amici A.C.L.U. do not even admit 
the existence of the fear psychology (A.C.L.U. Brief 23). 
At best, amici concede that there was a “concern” on the 
part of Township Council that “for sale” signs would create 
a fear psychology. This contention, likewise, grossly 
understates the evidence at trial. The almost hysterical 
attitude of many of Willingboro’s residents is amply docu­
mented in the record, specific portions of which are re­
peated in Section C of this Brief’s Statement of the Case. 
Township Council was not conjecturing about the existence 
of a fear psychology. Township Council was advised by 
the Human Relations Commission that a fear psychology 
existed; Township Council members individually, through 
general discussions with members of the public, ascertained 
that a fear psychology existed; Township Council collec­
tively held two public hearings at which its belief that a 
fear psychology existed was substantiated.

It became apparent that the result of the fear psy­
chology would lead Willingboro away from being an inte­
grated community to becoming a resegregated one. See 
Exhibit D -l (Jt. App. 128a) showing the actual change in 
racial composition of the community. Township Council, 
after receiving a report from the Human Relations Com­
mission, and after holding two public hearings on what 
should have been done, determined that the fear psychol­
ogy was significant enough to warrant the adoption of the 
ordinance prohibiting “for sale” signs. And, clearly, the



Argument 23

desired objective was achieved: the fear psychology sub­
sided. (Jt. App. 163a; 191a-192a; 208a; 222a-223a; 234a; 
241a-242a; 248a-249a; 250a).

Councilman Kearns indicated that:

“Prior to the ordinance, I ’ve already indicated that I 
think the concern of the community and the reaction 
of the people are having, and I can— I know of 
particular cases that I’ve dealt with as an attorney, 
that people have indicated they are going to get out 
before it’s too late, or they’ve seen a number of signs 
on their particular street.

“I’ve had people come up and say: ‘My God, there 
is three houses for sale on my street. What’s happen­
ing? What’s going on? I got to get out of here.’

“We used to get that kind of reaction, and there has 
been a very noticeable elimination of that. And I 
think there are still some people who may indicate 
that they are moving because of concern for minority 
problems within the community. But it’s dropped 
off to the point that in 1974,1 don’t think I could think 
of more than two or three people that I personally 
have dealt with that are moving for that reason. Most 
of the people that seem to be selling now are selling 
for business transfer reasons or because their families 
have grown and moved out and they want to get 
into a different type of house, or their families are 
growing and they need a larger home than they 
could get, or they’ve gotten interested in—Well, 
one family is interested in having a horse, which is 
rather difficult on our size of lots” ( Jt. App. 191a~192a).

The former chairperson of the Human Relations Com­
mission Gladfelter testified:

“The feedback that I had gotten has been that people 
in the community like it better without the signs, 
that they feel less pressure on the community and 
they seem to make some connections between that and



24 Argument

at least reported—less frequently reported kind of 
racial disturbance in the community” (Jt. App. 234a).

The Chairperson of the Human Relations Commission, 
Reverend Lyght, commented:

"‘I think my specific response would have to be that 
it’s fairly clear to me that the prohibition has stopped 
or brought to an end the kind of things that we used 
to hear of, people talking about the rapid change 
in the community, whether it was in fact or assumed.

“They would, from time to time, have people raising 
questions with us, residents of the community in 
terms of the openness of the community, and using 
the signs as their way of saying that something is 
wrong. We’re not getting this type of thing now”
(Jt. Rpp. 250a).

Petitioners have asserted in their Rrief that the intent 
of the ordinance was to further the “exclusion of racial 
minorities from the Township (Petitioner’s Brief-9; 33). 
This allegation not only is unsupported by but contradicts 
the record. Further, this allegation attributes an improper 
objective to a local legislative body which has a demon­
strated history of working to achieve a better, more open, 
integrated racial environment in Willingboro. Council­
man Kearns testified that the ordinance “was in no way 
related to people moving into the community” (Jt. App. 
185a). Councilman Heath, a member of the Executive 
Committee of the Burlington County Branch of the 
N.A.A.C.P., a member of the Kinsmen (a predominantly 
black fraternal organization), and a member of and legal 
counsel to the Spanish-American Club of Burlington 
County (Jt. App. 204a), not only stated that he had “no 
preconceived notion as to what the percentages of people 
ought to be” (Jt. App. 214a), but indicated that the



Argument 25

N.A.A.C.P. was among the strongest proponents of die 
ordinance (Jt. App. 209a).

Clearly, diis is not a case of Township Council trying 
to keep anyone out of Willingboro, a town which has been 
proud of the fact that it is a community where all are 
welcome and live together. Township Council did not 
attempt to preclude all advertisement of the availability 
of homes for purchase, since, clearly, these other methods 
did not produce the “uptightness” or fear psychology re­
sulting from the abundance of “for sale” and “sold” signs. 
It is ironic in this respect that in a Motion for Summary 
Judgment made by Petitioners before the trial of this mat­
ter, which Motion was denied, the argument was advanced 
that since the ordinance still permitted “for sale” signs on 
newly-constructed homes, there was a denial of equal pro­
tection to Petitioners, neither of whom owned a newly- 
constructed home. This assertion was abandoned before 
trial when it became evident that the continuation of the 
ordinance authorization to maintain “for sale” signs on 
such homes was indicative of Township Council’s intent 
not to prohibit individuals from buying homes in Willing­
boro. In fact, this obviously strengthened Township 
Council’s contention that the ordinance was only enacted 
to affect present residents of the community and only to 
the extent that it would remove the constant prod fester­
ing the fear psychology represented by the “for sale” and 
“sold” signs.

The proofs at trial showed that there was no frustra­
tion of the ability of prospective purchasers to buy homes 
in Willingboro. The uncontradicted testimony was to the 
effect that as many homes were being sold after the adop­
tion of the ordinance as before, the only change being that 
residents were now selling their homes for reasons of job 
transfer, need for a different size home because of change 
in family size, etc., not because they were fearful that the



26 Argument

community was “changing” into an all-black enclave. In 
Barrich Realty, Incorporated v. City o f Gary, Indiana, 
supra, 491 F.2d at 164, the Court commented;

“Unquestionably, the municipal interests which justify 
the restriction of commercial activity in residental 
neghborhoods support a prohibition against the display 
of commercial signs. See Euclid v. Ambler Co., 272 
US. 365, 387-397. The City’s interest in attempting to 
encourage and maintain stable integrated neighbor­
hoods provides important added support. Since the 
record does not indicate that the ordinance has frust­
rated the ability of prospective buyers to find the 
homes in Gary which are for sale, and since alternative 
means of communication are available to the plain­
tiffs, the regulation is permissible.”

The same policy considerations are applicable as well 
to Willingboro.

The fact that the ordinance was not aimed at main­
taining any particular racial “quota” is strengthened by the 
recognition that in reality the prohibition of “for sale” signs 
did not result in keeping any prospective minority group 
residents out of Willingboro. Attached to this Brief as 
Exhibit “A” is a copy of the most recent school population 
survey results in Willingboro required to be compiled under 
New Jersey administrative law. While Township Council 
does not contend that there is any direct, absolute ratio 
between the number of minority families living in Will­
ingboro and the number of children of school age that 
they may have, the attachment does show a continued 
increase in the number of black youngsters attending Will- 
ingboro’s public schools since the adoption of the ordi­
nance. If the object was to keep blacks and other minori­
ties out of Willingboro, it has not succeeded; nor was it 
Township Council’s intention to so exclude anyone.



Argument 27

Willingboro, as phrased by Councilman Heath, is a 
“great experiment,” an experiment in people of all back­
grounds, races and religions living together amicably. 
What Township Council intended was to permit the ex­
periment to continue, if it could, by removing an artificial 
“germ” ( “for sale” signs) afflicting the community’s health 
and eliminating its symptom (the fear psychology). Will­
ingboro wanted to permit its residents to remain, not in 
order to maintain a numerical balance or ratio of whites 
and non-whites, but to prevent the “great experiment” 
from foundering because of an artificially imposed pres­
sure. Petitioners quote part of the opinion of the District 
Court, which speculated that the ordinance would have 
the “ultimate effect of freezing in past discrimination, deny­
ing blacks a fair opportunity to find suitable housing,” 
citing DeKalb Real Estate Board v. Chairman and Board 
of Commissioners o f Roads and Revenue for DeKalb 
County, 378 F. Supp. 748 (N.D. Ga. 1973) (Petitioners’ 
Brief-34). It should be quite apparent that Willingboro 
never had any great past discrimination to freeze in.

Willingboro does not wish to become another Came- 
lot, “a fleeting wisp of glory”; Willingboro does not want 
to become just another dead monument to the cause of 
brotherhood and better race relations; it wants to be a 
living example that all people can live together.

II. An ordinance prohibiting “for sale” signs in an 
effort to combat a fear psychology leading to the reseg­
regation of a community does not violate the first and 
fourteenth amendments.

Although Petitioners sought certiorari by asserting 
that Willingboro’s ordinance conflicted “with the principles 
established by the decision of this Court in Bigelow v.



28 Argument

Virginia, 421 U.S. 809 (1975 )” (Petition for Writ of Cer­
tiorari-6), apparently Petitioners have now concluded, in 
agreement with Willingboro, that Bigelow  does not render 
the ordinance unconstitutional. Petitioners have, accord­
ingly, shifted their approach, relying principally upon Vir­
ginia State Board of Pharmacy v. Virginia Citizens Con­
sumer Councl, Inc., 425 U.S. 748 (1976). A review of 
this and other cases cited by Petitioners will show support 
for, not disputation of, Willingboro’s ordinance.

A . W illingboros’ ordinance advances a significant 
governm ental interest—the halting o f reseg reg a­

tion.

It is clear that Virginia State Board o f Pharmacy held 
that commercial speech is not wholly outside the protec­
tion of the First Amendment (425 U.S. at 762); it is also 
evident that protected commercial speech may in certain 
instances be restricted, consistent with the First Amend­
ment. These permissible limitations include “time, place 
and manner” restriction, prohibitions on false or mislead­
ing advertisements and proposals of illegal transactions.7 
In our view, the proper test to be applied to Willingboro’s 
ordinance is to determine whether or not there is a para­
mount governmental interest, accomplished with minimal 
restrictions appropriate to its purpose. We submit that 
the governmental interest in combating the fear psychology 
leading to the resegregation of Willingboro requires the 
ordinance to be upheld.

As indicated in Part I of this Argument, there is a sig­
nificant governmental interest in maintaining a truly inte­
grated community. The problems of our present society

7. This Court discussses these and other inroads into absolute protection 
in Part VI of its decision in Virginia State Board  o f  Pharmacy. See also the 
concurring decisions of Chief Justice Burger (425  U.S. at 773) and Justice 
Stewart (425 U.S. at 775).



Argument 29

in implementing openness in housing, furthering integra­
tion and halting resegregation have been discussed in 
detail in many judicial decisions and scholarly commen­
taries and have been noted in summary manner in this 
Brief. Obviously, this is one of the more momentous issues 
facing our nation. Willingboro’s ordinance, in seeking a 
positive answer to these problems, attempts to further this 
governmental interest.

The Brief of amici A.C.L.U. rejects the assertion that 
the ordinance advances a significant governmental interest, 
yet agrees that restrictions on advertising are permissible 
“when public health and safety necessitate” them 
(A.C.L.U. Brief-16). Perhaps a nonenunciated reference 
to the classic situation of a person shouting “fire” in a 
crowded room and causing panic is meant. See Schenck 
v. United States, 249 U.S. 47, 52 (1919). In any event, 
it is clear that this limitation of the phrase “public health 
and safety” cannot be condoned, and that in view of the 
gravity of the public policy at issue, the public health 
and safety must include the propriety of action reasonably 
taken to halt resegregation. Moreover, the words “public 
health and safety” are usually in the tripartite phrase “pub­
lic health, safety and welfare.” In employing the full 
phraseology, the efficacy of Willingboro’s position becomes 
additionally evident.8

B . W illingboro’s ordinance, in advancing a significant
governm ental interest, is a  reason ab le  restriction
on com m ercia l advertising.

As indicated, the governmental interest in preventing 
that which would result in the resegregation of a commu­

8. See Summer v. Tow nship o f  Teaneck, 53 N.J. 548, 551, 251 A.2d 761 
(19 6 9 ), where the New Jersey Supreme Court, in discussing “blockbusting,” 
observed that: “the present setting of racial discord magnifies the insult to the
public well-being.”



30 Argument

nity is of great moment. This Court has recognized the 
propriety of restricting First Amendment rights when the 
mode of expression sought to be curtailed effects a result 
contrary to the public policy. In Pittsburgh Press Co. v. 
Pittsburgh Commission on Human Relations, 413 U.S. 376 
(1973), this Court declined to modify Valentine v. Chres- 
tensen, 316 U.S. 52 (1942), because of the public signifi­
cance attached to sex discrimination in employment “want 
ads.” 413 U.S. at 388. In Near v. Minnesota, 283 U.S. 
697, 718 (1939), Chief Justice Hughes observed that: 
“No one would question but that a government might pre­
vent actual obstruction to its recruiting service or the pub­
lication of the sailing dates of transports or the number 
and location of troops.” It is the relative significance of 
the conflicting interests involved which are “important in 
determining the degree of protection afforded by the 
(First) Amendment to the speech in question.” Lehman 
v. City of Shaker Heights, 418 U.S. 298, 302-3 (1974).

Official action with an adverse impact on First Amend­
ment rights may be justified by a compelling or paramount 
public interest. National Association for the Advancement 
of Colored People v. Button, 371 U.S. 415, 438 (1963); 
Gibson v. Florida Legislative Investigation Committee, 
372 U.S. 539, 546 (1963).

It is apparent that a paramount public interest is 
involved in this case. And it is similarly evident that the 
ordinance imposes the minimum restrictions necessary to 
accomplish the purpose. See Elfbrandt v. Russell, 384 
U.S. 11, 18 (1966). Advertisement generally of residences 
available for purchase was not prohibited; only restrained 
was the one method giving rise to panic selling--“for sale” 
and “sold” signs.

In this regard, the distinction between advertising in 
general and “for sale” and “sold” signs on the front lawns



Argument 31

of residential streets should be noted. Residential areas 
are “a sanctuary for people,” Village of Belle Terre v. 
Boraas, 416 U.S. 1, 9 (1974), not ordinarily characterized 
by commercialism. “For sale” and “sold” signs seek to 
impose an aspect of commercialism on “the quiet and 
tranquility of residential thoroughfares.” Kovacs v. 
Cooper, 336 U.S. 77, 87 (1949). Residents going to and 
from their homes have the “for sale” and “sold” signs thrust 
upon them, even if it is just to walk down the sidewalk to 
visit with a neighbor, to walk a youngster to school or to 
take a baby for a ride in a carriage. This imposition of 
commercialism, not otherwise permitted by the ordinance, 
intrudes upon residents in a place they do not normally 
anticipate. See also Packer Corporation v. Utah, 285 U.S. 
105, 110 (1932), which, in the context of the Fourteenth 
Amendment, discusses the difference between billboards 
or signs and other types of advertising.

In Young v. American Mini Theatres, Inc., — U.S. 
— , 49 L.Ed.2d 310 (1976), an ordinance requiring the 
dispersal of adult motion picture theaters was upheld. It 
was noted that a restriction requiring at least a one thou­
sand foot separation between theaters would not “create 
an impermissible restraint on protected communication” 
since “[t]he city’s interest in planning and regulating the 
use of property for commercial purposes is clearly ade­
quate to support that kind of restriction applicable to all 
theaters within the city limits.” 49 L.Ed.2d at 30. Will- 
ingboro’s ordinance, likewise, considers the propriety of 
advertisement in general versus the propriety of advertise­
ment in a residential zone.

Young also makes it clear that the “content of a par­
ticular advertisement may determine the extent of its pro­
tection.” While the prohibition of “for sale” signs is pri­
marily aimed at the mode of expression rather than its



32 Argument

content, other modes being left unaffected, an analysis will 
show that the signs are restricted only in part because of 
their content. Thus, in Willingboro’s situation, a hybrid 
is presented: signs generally did not cause the fear psy­
chology; the advertisement of homes for sale by methods 
other than signs did not cause the fear psychology; only 
“for sale” and “sold” signs caused it. This classification of 
advertisement, based in part on its content, is permitted 
when weighed against Willingboro’s “interest in the pre­
sent and future character of its neighborhoods . . .” 49 
L.Ed.2d 327. As observed by Justice Powell in his con­
curring opinion in Young, “fwjithout stable neighborhoods, 
both residential and commercial, large sections of a modern 
city quickly can deteriorate into an urban jungle with tragic 
consequences to social, environmental, and economic 
values.” Society’s interest in protecting established resi­
dential integration from the fear psychology stemming 
from “for sale” signs is like the social interests upheld by 
this Court in Young. The free speech interest at stake 
here, as in Young, “is of a wholly different, and lesser, 
magnitude than the interest in untrammeled political de­
bate that inspired Voltaire’s immortal comment.” 49 L.Ed. 
2d 326.

Virginia State Board o f Pharmacy is not to the con­
trary. There the public had a “strong interest” in the 
free flow of information on the comparative prices of pre­
scriptive drugs. Nor is this the complete suppression 
involved in Virginia State Board o f Pharmacy. Further, as 
noted in Virginia State Board of Pharmacy, the advertise­
ment in Bigelow v. Virginia, supra, “related to activity 
with which, at least in some respects, the State could not 
interfere.”

The argument of Petitioners that on-premises “for 
sale” signs are uniquely effective is without merit. The 
argument relates that the signs, being on site, advertise



Argument 33

“as completely and honestly as any advertising is likely 
to accomplish” ( Petitioners’ Brief-27). Of course, this 
assumes that prospective purchasers, who learn about the 
availability for purchase of a home through other means, 
will not choose to view it in person. Petitioners’ other 
assertion that the absence of “for sale” signs will “force 
the individual citizen to spend an inordinate quantity of 
time and resources to gain the same information” (Peti­
tioners’ Brief-28) defies common sense. Petitioners would 
have this Court believe that it is easier and quicker to 
drive around Willingboro to ascertain which homes are 
available for purchase than to review the central catalog 
of a realtor or to scan the “Homes for Sale” column in a 
newspaper. Further, this entire argument completely 
avoids the dominating presence of “sold” signs.

Amici A.C.L.U. argue that the public has an interest 
in knowing what homes are for sale in Willingboro, regard­
less of whether that information is causing a fear psychol­
ogy leading to a resegregation of the community. Amici 
urge that the response to the fear psychology is “more, 
rather than less speech,” or as Petitioners phrase it, “edu­
cation.” 9 But Willingboro has tried this response and it 
has not of itself worked. The record reflects a public 
meeting at the Presbyterian Church in Willingboro on 
“racial stability and racial problems” captioned “Willing­
boro—To Sell or Not To Sell’* (Jt. App. 184a). Discussions 
were held before groups such as the Rotary Club, the 
Chamber of Commerce, and the Jaycees. Township Coun­
cil joined National Neighbors for added information and 
had an actively working Human Relations Commission

9. According to the 1970 Census of Population, published by the United 
States Department of Commerce, the average educational level of residents 
of Willingboro twenty-five years of age or older was 12.6 years of school com­
pleted, and 78 per cent were high school graduates. The national average was 
12.1 years of school completed, and 52.3 per cent had graduated from high 
school. Apparently, education p er se  is not sufficient to keep an individual 
from acting irrationally.



34 Argument

which is statutorily charged with this education function. 
Despite these efforts the fear psychology persisted. Will- 
ingboro could not wait; it did not have the luxury of being 
able to spend time individually educating or “indoctrinat­
ing” everyone. To argue that education alone may be 
used to combat fear psychology is to advance a position 
divorced from practical reality.10 Willingboro cannot af­
ford to close the barn door after the horse has escaped. 
The suggestion of amici, while worthy is not of itself suffi­
cient: Willingboro requires that every constitutionally per­
missible means be available to achieve its paramount gov­
ernment interest in preserving residential integration.

Additionally, the speech represented by the “for sale” 
and “sold” signs is not worthy of constitutional protection 
when its actual result is the engendering of a fear psycho­
logy resulting in Willingboro’s resegregation. Chicago 
Real Estate Board v. City o f Chicago, 36 111. 2d 530, 224 
.E.2d 793, 807 ( Sup. Ct. 1967). In Pittsburgh Press, supra, 
it was observed that “[w]e have no doubt that a newspaper 
constitutionally could be forbidden to publish a want ad 
proposing a sale of narcotics or soliciting prostitutes.” 413 
U.S. at 388. Both of these activities are illegal. Yet a 
declaration that one must leave town because of that 
changing racial composition is equally illegal under the 
Law Against Discrimination, N.J.S.A. 10:5-1 et seq.; see 
N.J.S.A. 10:5-12 (k ); 42 U.S.C. §3604 (e ). Although the 
“for sale” signs do not expressly relate such an illegal 
statement, the effect in Willingboro of the abundance of 
“for sale” and “sold” signs was the same as if it were related. 
See United States v. Bob Lawrence Realty, Inc., 474 F.2d 
115 (5 Cir. 1973); United States v. Bob Lawrence Realty,

10. See also the comment in Young v. Am erican Mini Theatres, Inc., supra 
that “broad statements of principle, no matter how correct in the context in 
which they are made, are sometimes qualified by contrary decisions before the 
absolute limit of the stated principle is reached,”



Argument 35

Inc., 313 F, Supp. 870 (N.D. Ga. 1970); and United States 
v. Mintzes, 304 F. Supp. 1305 (D. Md. 1969) (which held 
that there was a permitted restriction on free speech in 
an anti-blockbusting context). Signs which on the surface 
may be innocent but which, because of the way the pub­
lic perceives them, result in a situation strongly contrary 
to the public interest should not be automatically afforded 
a superior Constitutional protection.

Willingboro’s ordinance, having been enacted to 
further a significant public interest and being no more 
restrictive than necessary to accomplish its purpose, is 
therefore valid.



36

CONCLUSION

For the reasons stated, the judgment of the Court of 
Appeals should be affirmed and the constitutionality of 
Willingboro’s ordinance banning “for sale” and “sold” signs 
should be upheld.

Respectfully submitted,

MYRON H. GO TTLIEB, 
KESSLER, TUTEK AND 
GO TTLIEB,
325 Farnsworth Avenue 
Bordentown, New Jersey 08505 
Counsel for Respondents



Willingboro Public Schools 
Elementary and Secondary School  Enrollment Survey 

October 1970 -1976

Minority Total
School |* 7 T 72 ■73 j 74 75 | 76 71 72 73 74 1 75 76

Bookbinder N
%

184
22 .0

268
31 .6

I

245 i  

29.9;
232
3 3 ,2

306
43 .8

266
4 2 . 8

!

835 848 820 699 698 621

C . C .  Ridge N 86 84 111  ; 100 124 141 687) 635 579 497) 486 442 ;0//O 1 2 . S 13.2 19.  V
!

20 .1 25 .5 31 .9 1
|

Garfield N 65 95 115  : 117 130 | 158 737) 704) 725 648 595 504
% 8 . 8 13 .5 15.9;

1
18.1 2 1 . 8

1
3 1 ,3 !

1! .
G.  East N 90 120 | 157 169 163 j 172 947; 944 922 857) 783 715

% 9 . 5 12.7) 17.0) 19 .7 20.81
|

24.1!
| * 1

j .

Hawthorne N 191 176 198 230 250 i 258 | 896 832 778 731' 673 602
% 21 .3 21.2! 25.4)

1
3 1 . 5 3 7.1)

J
42.9!

King N 118 148 141 168 178 166 805 838 754 776 768 688
% 14 .7 17 .7 18.7; 2 1 .6 23 .2 24 .1

Millbrook N 170 206 253 228 247 244 i 822 744 724 687 646 607
% 20 .7 27 .7 3 4 .9 3 3 . 2 3 8 . 2 4 0 . 2 j .1

Pennypacker N 281 303 320 3 66 338 352 1009 912 839 783 690 642
% 27 .8 33 .2 3 8 . 1 4 6 . 7 4 9 . 0 5 4 .8

j

Stuart N 166 189 175 219 2 1 0 241 j 822 708 733 695 649 638
% 20 .2 26 .7 2 3 .9

-
3 1 . 5 3 2 . 4 3 7 . 8 1

i
Twin Hills N 169 170 184 206 198 202 i 858 757 735 703 682 625

% 19.7 22 .5 2 5 . 0 2 9 .3 2 9 . 0 3 2 .3
1

Elementary N 1520 1759 1899 2035 2144 2200 | 8418 7922 7609 7076 6670 6084 ;
Total % 18.1) 22 .2 2 5 . 0 2 8 .8 32 .1 !  3 6 . 2 ! !

A. Levitt N 311 303 388 392 517 546 1550 1548 1545 1466 1422 1347
u 1a « it * O * % 20 .1 19,6 25 .1 2 6 . 7 3 6 . 4 4 0 .5 j

Memorial N 313 326 464 603 619 656 ;j 1942 2063 2016 2034 2003 2006
J R » H. S . % 16 .1 15 .8 2 3 . 0 2 9 . 6 3 0 . 9 3 2 . 7 :

I
J .  F.  Kennedy N 495 714 852 S72 : 432 468 i 2713 2981 3062 2051 1502 1472

SR.  H .S . % 18.2 2 4 . 0 2 7 . 8 27 .9 | 2 8 . 8
i

3 1 . 8
1 |

WHS ' N 318 j 560 559 | 934 1574 1623
SR. H .S . % 3 3 . 5 j 3 5 . 6 3 4 . 4 jj

Secondary N 1119 1343 i 17 0 4 ,1885 ■2128 2229 ! 6205 6592 6623 6485 6501 6448
Totals % 18 .0 2 0 .4 1 2 5 . 7| 29 .1 | 3 2 . 7 j  3 4 . 6 i
Grand N 2639. 3102 13 603 3920 :4272 |4429 ;|l4623 114514 (14232 13561 13171 12S32<y/O10.0 21 .4 25 .3 pi l .9 |32.4 ;35.3 

— .— | ! L.---- ---- -
EXHIBIT "A"