McCord v. City of Fort Lauderdale, Florida Brief for Plaintiffs-Appellants

    In  th e

Supreme (Eourt of ttje lEnitefc States
O c t o b e r  T e r m , 1991

---------------------- ♦ ----------------------

The N ew Y ork T imes Company,

Petitioner,

Luther M. R agin, Jr., D eborah F ish R agin, 
R enaye B. Cuyler, Jerome F. Cuyler and 

O pen H ousing C enter, Inc .,
Respondents.

PE T IT IO N  FO R  A W R IT  O F  C E R T IO R A R I 
T O  T H E  U N IT E D  STA TES C O U R T  O F A PPEA L S 

FO R  TH E SE C O N D  C IR C U IT

BRIEF IN OPPOSITION

J u lius  L. C h am bers  
99 Hudson Street 
16th Floor
New York, New York 10013 
(212)219-1900 
K erry  A lan  S c a n lo n  

1275 K Street, N.W .
Suite 301
W ashington, D.C. 20005 
(202) 682-1300 
N A A C P L egal D efense and  

E ducational F u n d , In c .

K a t h l e e n  M . C o m fr e y  

Counsel o f Record 
K a r e n  M . C rupi 

S hearm an  &  S terling 

153 East 53rd Street 
New York, New York 10022 
(212) 848-4000

Counsel fo r Respondents



Q U ESTIO N  PRESEN TED

1. Should the Court grant certiorari to consider an interlocutory 
decision interpreting the Fair Housing Act that is in agreement 
with the only other circuit court decision on point, from 
which this Court recently denied certiorari, and that is 
supported by the applicable administrative regulations?

-  i -



PARTIES BELOW

Pursuant to Rule 29.1 o f the Rules of this Court, respondent Open 
Housing Center, Inc. informs the Court that it has no parent company and 
has no subsidiary other than Open Housing Services, Inc., a wholly- 
owned subsidiary.



-  Ill -

TABLE OF CONTENTS

Page

QUESTION PRESENTED................................................................... i

PARTIES BELO W ................................................................................  ii

TABLE OF AUTHORITIES...............................................................  v

CONSTITUTIONAL, STATUTORY AND
REGULATORY PR O V ISIO N S......................................................... 1

COUNTERSTATEMENT OF THE C A S E ...................................... 3

REASONS FOR DENYING THE W R IT .........................................  4

I. RESPONDENTS’ DISCRIMINATORY 
ADVERTISING CLAIM IS PLAINLY 
SUFFICIENT TO SURVIVE A MOTION
TO D ISM ISS ................................................................. 4

A. THERE IS NO CONFLICT AMONG
THE CIRCUIT CO U R TS................................  4

B. THE SECOND CIRCUIT’S 
DECISION IS SUPPORTED
BY LONGSTANDING ADMINIS­
TRATIVE IN TERPRETA TIO N .................... 7

C. THE FIRST AMENDMENT DOES 
NOT SHIELD COMMERCIAL 
SPEECH THAT INDICATES A
RACIAL PREFERENCE ............................... 8

II. REVIEW OF THE INTERLOCUTORY
DECISION BELOW IS PREM ATURE....................  10

CONCLUSION 11



APPENDIX Page

Exhibits to Complaint

Ex. 1 -  Consent Agreement With The Washington P o s t ...............  lb

Ex. 2 -  The New York Tim es’ Correspondence to Advertisers
Regarding Its Advertising Acceptability Policy.............  13b

Ex. 3 -  The New York Tim es’ Standards of Advertising
A cceptability ............................................................................ 15b

-  iv -



-  V -

TA BLE O F A U TH O RITIES

Cases Page

American Constr. Co. v. Jacksonville, Tampa, and Key
West Ry. Co., 148 U.S. 372 (1893).............................................  10

Ashwander v. TVA, 297 U.S. 288 (1936)...................................  10

Associated Press v. NLRB, 301 U.S. 103 (1937)...................... 8n

Board o f Trustees v. Fox, 492 U.S. 469 (1989)........................  9

Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n, 447 U.S. 557 (1980)...........................................  9

Chevron U.S A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984).............................. 8

Cohen v. Cowles Media Co., 59 U.S.L.W. 4773
(U.S. June 24, 1991 No. 90-634).................................................  8n

Fenwick-Schafer v. Sterling Homes Corp.,
No. R-90-1376, (D. Md. Mar. 28, 1 9 9 1 )...................................  5, 7

Gladstone, Realtors v. Village ofBellwood,
441 U.S. 91 (1979).......................................................................... 7-8

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,
240 U.S. 251 (1916)........................................................................ 10

Housing Opportunities Made Equal v. The 
Cincinnati Enquirer, Inc., 731 F. Supp. 801
(S.D. Ohio 1990), appeal pending, No. 90-3176 (6th Cir.).... 5, 6, 10 

Maryland v. Baltimore Radio Show, Inc.,
338 U.S. 912 (1950)........................................................................ 10

Milkovich v. Lorain Journal Co., 110 S. Q . 2695 (1990)...... 9-10

Ohralik v. Ohio State Bar Ass’ n, 436 U.S. 447 (1 9 7 8 )..........  9

Pittsburgh Press Co. v. Pittsburgh Comm’n on Human
Relations, 413 U.S. 376 (1973)....................................................  9



Cases Page

Posadas de Puerto Rico Assocs. v. Tourism
Co. o f Puerto Rico, 478 U.S. 328 (1986)...................................  9

Ragin v. Steiner, Clateman and Assocs., Inc.,
714 F. Supp. 709 (S.D.N.Y. 1989).............................................. 5, 6, 8, 10

Rescue Army v. Municipal Court o f Los Angeles,
331 U.S. 5 4 9 (1 9 4 7 ).......................................................................  10

Saunders v. General Services Corp., 659 F. Supp.
1042 (E.D. Va. 1987).....................................................................  5, 6

Spann v. Colonial Village, Inc., 662 F. Supp.
541 (D. D.C. 1987), rev’d in relevant part and 
remanded, 899 F.2d 24 (D.C. Cir.), cert, denied,
111 S. Ct. 508, 509 (1990) and 111 S. Ct. 751
(1 9 9 1 )................................................................................................  5 ,6

Spann v. Colonial Village, Inc., 124 F.R.D.
1 (D. D.C. 1988), rev’d on other grounds and 
remanded, 899 F.2d 24 (D.C. Cir.), cert, denied,
111 S. Q . 508, 509 (1990) and 111 S. Ct. 751
(1 9 9 1 )................................................................................................  8

Spann v. Colonial Village, Inc., 899 F.2d 
24 (D.C. Cir.), cert, denied. 111 S. Q .
508, 509 (1990) and 111 S. Ct. 751 (1 9 9 1 )............................... 5 ,6

Spann v. The Carley Capital Group, 734
F. Supp. 1 (D. D.C. 1988).............................................................  5, 7

Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205 (1972).......................................................................  8

-  vi -

United States v. Hunter, 459 F.2d 205 (4th Cir.), 
cert, denied, 409 U.S. 934 (1972).......................... 7 ,8



-  V l l  -

Cases

Constitutional Provisions

U.S. Const, amend. I ......................................................................  1 ,4 , 8-9

Rules & Regulations

Federal Rules o f Civil Procedure

Rule 12(b)(6).................................................................................... 3

Supreme Court Rules

Rule 2 9 .1 ............................................................................  ii

HUD Regulations

37 Fed. Reg. 6700 (1 9 7 2 )..............................................  7

45 Fed. Reg. 57102 (1 9 8 0 )............................................  7

24 C.F.R. § 109.10...........................................................  1 ,5

24 C.F.R. § 109.16(a)(1).................................................  1 ,5

24 C.F.R. § 109.25(c)......................................................  1-2, 5, 7

24 C.F.R. § 109.30(b).....................................................  2-3, 5, 7

Statutes

Fair Housing Act

42 U.S.C. § 3601 (1 9 8 2 )................................................................ 8

42 U.S.C. § 3604(c) (1988) (as am ended).................................  passim



1

CO N STITU TIO N A L, STATUTORY 
AND REG U LA TO RY  PROV ISIO N S

The pertinent text of the First Amendment and the Fair Housing 
Act o f 1968 (the “Act”), 42 U.S.C. § 3604(c) (1988) (as amended), is set 
forth in the Petition at 3.1 Below are reproduced in full the relevant 
regulations issued by the United States Department o f Housing and Urban 
Development (“HUD”), 24 C.F.R. Part 109 (1990):

§ 109.10 Purpose.

The purpose of this part is to assist all advertising media, 
advertising agencies and all other persons who use advertising to make, 
print, orpublish, orcauseto be made, printed, orpublished, advertisements 
with respect to the sale, rental, or financing of dwellings which are in 
compliance with the requirements of the Fair Housing Act. These 
regulations also describe the matters this Department will review in 
evaluating compliance with the Fair Housing Act in connection with 
investigations of complaints alleging discriminatory housing practices 
involving advertising.

§ 109.16 Scope.

(a)(1) Advertising media. This part provides criteria for use by 
advertising media in determining whether to accept and publish advertising 
regarding sales or rental transactions. Use o f these criteria will be 
considered by the General Counsel in making determinations as to 
whether there is reasonable cause to believe that a discriminatory housing 
practice has occurred or is about to occur.

§ 109.25 Selective use of advertising media or content.

The selective use of advertising media or content when particular 
combinations thereof are used exclusively with respect to various housing 
developments or sites can lead to discriminatory results and may indicate 
a violation of the Fair Housing Act. For example, the use o f English

1. The opinions of the United States Court of Appeals for the Second Circuit and the 
United States District Court for the Southern District of New York are reported at 923 
F.2d 995 (2d Cir. 1991) and 726 F. Supp. 953 (S.D.N.Y. 1989).



2

language media alone or the exclusive use o f media catering to the 
majority population in an area, when, in such area, there are also available 
non-English language or other minority media, may have a discriminatory 
impact. Similarly, the selective use o f human models in advertisements 
may have a discriminatory impact. The following are examples of the 
selective use of advertisements which may be discriminatory:

* * * *

(c) Selective use of human models when conducting an 
advertising campaign. Selective advertising may 
involve an advertising campaign using human models 
primarily in media that cater to one racial or national 
o rig in  segm ent o f the popu lation  w ithout a 
complementary advertising campaign that is directed 
at other groups. Another example may involve use 
o f racially mixed models by a developer to advertise 
one development and not others. Similar care must 
be exercised in advertising in publications or other 
media directed at one particular sex, or at persons 
without children. Such selective advertising may 
involve the use of human models of members o f only 
one sex, or of adults only, in displays, photographs 
or drawings to indicate preferences for one sex or the 
other, or for adults to the exclusion of children.

§ 109.30 Fair housing policy and practices.

In the investigation of complaints, the Assistant Secretary will 
consider the implementation of fair housing policies and practices provided 
in this section as evidence of compliance with the prohibitions against 
discrimination in advertising under the Fair Housing Act.

* * * *

(b) U se o f  hum an m odels. H um an m odels in 
photographs, drawings, or other graphic techniques 
may not be used to indicate exclusiveness because of 
race, color, religion, sex, handicap, familial status, 
or national origin. If models are used in display 
advertising campaigns, the models should be clearly



3

definable as reasonably representing majority or 
minority groups in the metropolitan area, both sexes, 
and, when appropriate, families with children. 
Models, if used, should portray persons in an equal 
social setting and indicate to the general public that 
the housing is open to all without regard to race, 
color, religion, sex, handicap, familial status, or 
national origin, and is not for the exclusive use of one 
such group.

CO U N TERSTA TEM EN T O F T H E  CASE

1. Because this case arises on a threshold Rule 12(b)(6) motion 
to dismiss, there has been no discovery and the decision is interlocutory. 
The record is, therefore, ill-suited to plenary review by the Court of the 
broad legal issues The New York Times (the ‘T im es”) seeks to raise here.

2. Contrary to petitioner’s assertion that respondents “did not 
allege a single fact, direct or circumstantial, indicating any intent on the 
part o f The Times to convey any such discriminatory preference,” 
Petition at 5, the Complaint alleges, among other things, that the Times 
has engaged in a lucrative, twenty-year practice of publishing racially 
exclusive real estate ads “featuring thousands of human models of whom 
virtually none were black,” Complaint 8 ,1 1 ,1 2  (Pet. App. 48a, 50a); 
that those few Blacks who were depicted in real estate ads were portrayed 
in m inor or subservient roles “as building maintenance employees, 
doormen, entertainers, sports figures, small children, or cartoon characters,” 
rather than as potential homeowners or renters, Complaint f  12 (Pet. App. 
50a); and that all-W hite human models were featured in ads for 
predominately White buildings or neighborhoods and all-Black models 
were featured in ads for predominately Black buildings or neighborhoods. 
Complaint 18 (Pet. App. 52a). The Complaint further alleges that the 
Times, after receiving direct notice from respondents that its practices 
were illegal, continued to publish single-race advertising. Complaint 
UK 14-18 (Pet. App. 51a-52a). These facts are more than sufficient to 
support respondents’ general allegation that the Times “intentionally and 
maliciously violated their civil rights.” Complaint H 22 (Pet. App. 52a).



4

3. Petitioner misstates the holding of the District Court when it 
asserts that it held that “the Fair Housing Act requires a ‘ fair representation’ 
of models by race.” See Petition at 6. To the contrary, the District Court 
simply concluded, consistent with the plain statutory language and prior 
caselaw, that the ultimate issue for the factfinder is whether “the natural 
interpretation” of the ads published by petitioner indicates a racial 
preference to the ordinary reader. See 726 F. Supp. at 957 (Pet. App. 26a) 
(citation omitted). In so holding, the District Court recognized that a 
factfinder could lawfully conclude from proof that the challenged ads 
contained a paucity o f Blacks that the ads conveyed an illegal racial 
message. 726 F. Supp. at 961 (Pet. App. 34a).

4. Contrary to petitioner’s assertions, the Second Circuit’s 
construction of the Act does not compel publishers to impose “mandatory 
percentages” of minority models, or to investigate each advertiser’s 
intent. See Petition at 16, 17. Instead, it merely requires the Times to 
screen the ads it publishes for racially discriminatory messages. In 
rejecting petitioner’s First Amendment arguments, the Second Circuit 
took notice of the extensive monitoring procedures the Times already has 
in place, 923 F.2d at 1004 (Pet. App. 14a-15a), and observed that“ [g]iven 
that this extensive monitoring —  for purposes that are both numerous and 
often quite vague— is routinely performed, it strains credulity beyond the 
breaking point to assert that monitoring ads for racial messages imposes 
an unconstitutional burden.” 923 F.2d at 1004 (Pet. App. 16a); see also 
Complaint Ex. 2, 3 (Res. App. 13b-16b); cf. Complaint Ex. 1 (Res. App. 
lb-12b).

REASONS FO R  DENYING T H E W R IT

I. RESPO N D EN TS’ D ISC RIM IN A TO RY  
A D VERTISIN G CLAIM  IS PLA IN LY 
SU FFIC IEN T TO  SURVIVE A M O TIO N  
TO  DISM ISS

A. T H ER E IS NO C O N FL IC T AM ONG TH E 
C IR C U IT  COURTS

Section 3604(c) of the Fair Housing Act prohibits the publishing 
o f any real estate advertising “that indicates any preference, limitation, or 
discrimination based on race [or] color.” 42 U.S.C. § 3604(c). The



5

Second Circuit did nothing more than allow respondents’ claim to 
proceed on the uncontroversial premise that a reasonable jury could find 
that petitioner’s consistent practice of printing and publishing real estate 
ads with a paucity of Black models in a metropolitan area with a 
significant Black population indicates a racial preference. 923 F.2d at 
1001 (P e t App. 10a). The alarm raised by petitioner at the possibility o f 
incurring liability for real estate ads that fail to match the precise 
“percentage” or “proportion” of every protected group under the Act, see 
Petition at 16-17, is simply a straw man. See 923 F.2d at 1001 (Pet. App. 
10a); 726 F. Supp. at 959 (Pet. App. 30a).

The Second Circuit’s standard for discriminatory advertising —  
the natural interpretation of the ad to the ordinary reader —  is supported 
by the nearly uniform caselaw on the issue. The federal courts have 
consistently concluded that, as a matter o f law, a complaint challenging 
real estate ads featuring all-White or virtually all-White models, such as 
those involved in this case, states a cognizable claim under the Act. See 
Spann v. Colonial Village, Inc., 899 F.2d 24, 29-30, 34-35 (D.C. Cir.), 
cert, denied, 111 S. Ct. 508,509 (1990) and 111 S. Ct. 751 (1991); Ragin 
v. Steiner, Clateman andAssocs., Inc., 714 F. Supp. 709, 713 (S.D.N.Y. 
1989); Spann v. The Carley Capital Group, 734 F. Supp. 1, 3 (D. D.C. 
1988); Saunders v. General Services Corp., 659 F. Supp. 1042, 1058 
(E.D. Va. 1987); Fenwick-Schafer v. Sterling Homes Corp., No. R-90- 
1376, slip op. at 10 (D. Md. Mar. 28,1991); see also 24 C.F.R. §§109.10; 
109.16(a)(1); 109.25(c); 109.30(b). The only decision supporting the 
T im es’ position is a solitary District Court opinion now on appeal to the 
United States Court of Appeals for the Sixth Circuit. See Housing 
Opportunities Made Equal v. The Cincinnati Enquirer, Inc. ,131 F. Supp. 
801 (S.D. Ohio 1990), appeal pending, No. 90-3176 (6th Cir.).

The principal case relied upon by the Times —  the District 
Court’s decision in Spann v. Colonial Village, Inc., 662 F. Supp. 541,546 
(D. D.C. 1987), rev’d in relevant part and remanded, 899 F.2d 24 (D.C. 
Cir.), cert, denied. 111 S .Q . 508,509(1990) and 111 S .C t.751  (1991), 
and quoted throughout the petition —  was reversed by the Court of 
Appeals on the precise liability point for which the Times cites it. See 
Colonial Village, 899 F.2d at 29-30. In Colonial Village, the District 
Court had dismissed claims based on a developer’s and an advertising 
agency’s all-White advertising practices on statute o f limitations grounds. 
The District Court indicated that in order to state a claim under Section



6

3604(c), the plaintiffs would have to show eitherthat the racial preference 
was “obvious from the ad itse lf’ or “that such preference be ascertainable 
through extrinsic circumstances.” Colonial Village, 662 F. Supp. at 546.

The Court of Appeals’ disagreement with the District Court’s 
intent or extrinsic circumstances standard is apparent from the opinion. 
See Colonial Village, 899 F.2d at 29-30. Reversing the District Court’s 
findings that the all-White advertising claims were untimely, see id. at 34- 
35, the District o f Columbia Circuit adopted the ordinary reader standard, 
and expressly remanded the proceeding for a jury trial on the question of 
whether all-White advertising by itself violates Section 3604(c). Id. at 29- 
30, 34-35; see also id. at 29-30 (recognizing that it is a “question o f fact 
for [the] jury whetherall-whiteadvertisementsviolate42U.S.C.§ 3604(c)” 
(citing Ragin v. Steiner, Clateman and Assocs., Inc., 714 F. Supp. 709, 
713 (S.D.N.Y. 1989)). The defendants in the Colonial Village case 
sought certiorari on the same questions the Times now seeks to raise, and 
the Court denied certiorari. See 111 S. Ct. 508,509 (1990) and 111 S. Ct. 
751 (1991).

In light o f this reversal, the District Court’s decision in Housing 
Opportunities Made Equal v. The Cincinnati Enquirer, lnc.,13\ F. Supp. 
801 (S.D. Ohio 1990), appeal pending, No. 90-3176 (6th Cir.) —  also 
relied on heavily by petitioner —  fails for the same reasons. In that 
decision, the District Court placed almost singular reliance on the 
extrinsic circumstances or intent analysis contained in the District Court 
decision in Colonial Village. See id. at 803-04. However, less than a 
month after the Cincinnati Enquirer decision was issued, the District of 
Columbia Circuit reversed in relevant part the District Court’s holding in 
Colonial Village. Moreover, the District Court’s interpretation o f the 
Saunders and Steiner, Clateman cases as requiring extrinsic evidence of 
intent, id. at 804, is contrary to the plain language of those decisions. See 
Saunders, 659 F. Supp. at 1058; Steiner, Clateman, 714 F. Supp. at 713.

The Times ’ description— or om ission— of the other lower court 
precedents is equally inaccurate. See Saunders, 659 F. Supp. at 1058 
(applying the ordinary reader standard and holding that virtually all- 
White real estate ads indicate a racial preference to the ordinary reader); 
Steiner, Clateman, 714 F. Supp. at 713 (holding that all-White human 
model real estate advertising states a viable claim under Section 3604(c));



7

Carley Capital, 734 F. Supp. at 3 (holding that all-White human model 
advertising states a claim); Fenwick-Schafer v. Sterling Homes Corp., 
No. R-90-1376, slip op. at 5-6, 10 (D. Md. Mar. 28,1991) (holding that 
all-White ads can indicate a racial preference to the ordinary reader); cf. 
United States v. Hunter, 459 F.2d 205, 215 (4th Cir.) (applying the 
ordinary reader standard and holding that it “would severely undercut the 
objectives o f the [Fair Housing Act]” to permit subtle forms of racial 
preference to be used in substitution for more blatant discriminatory 
phrases), cert, denied, 409 U.S. 934 (1972).

The purported conflict among the courts alleged by petitioner, 
therefore, does not exist.

B. T H E SECOND C IR C U IT ’S D ECISIO N  IS 
SU PPO RTED BY LO NGSTANDING 
AD M IN ISTRA TIV E IN TER PR E TA TIO N

Contrary to petitioner’s assertion that the Second Circuit “did not 
base its interpretation of Section 3604(c) on the HUD regulations,” see 
Petition at 15 n. 10, the Second Circuit expressly stated that it was relying 
on the HUD regulations “as additional support for the view that racial 
messages conveyed by the use of human models are not exempted” from 
the scope of Section 3604(c). 923 F.2d at 1000 n .l (Pet. App. 7a n .l).

Since 1972, HUD has expressly interpreted Section 3604(c) to 
prohibit the use o f human models in real estate ads to indicate racial 
exclusiveness, and its regulations directly support respondents’ claim 
here. See 37 Fed. Reg. 6700 (1972); 45 Fed. Reg. 57102 (1980). H U D’s 
regulations provide that “ [h]uman models in photographs, drawings, or 
other graphic techniques may not be used to indicate exclusiveness 
because of race [or] color” and “should be clearly definable as reasonably 
representing majority and minority groups in the metropolitan area.” 24
C.F.R. § 109.30(b); see also 24 C.F.R. § 109.25(c) (discussing examples 
of the discriminatory use of human models in violation o f Section 
3604(c)).

Contrary to petitioner’s suggestion that the regulations are 
“precatory,” see Petition at 15 n. 10, HUD is “the federal agency primarily 
assigned to implement and administer” the Act, and its “interpretation of 
the statute ordinarily commands considerable deference.” Gladstone,



8

Realtors v. Village of Bellwood, 441 U.S. 91, 107 (1979); see also 
Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210 (1972) 
(HUD’s interpretation “is entitled to great weight”) (citations omitted). 
The statutory language o f Section 3604(c) broadly prohibits all forms of 
racially discriminatory advertising practices and makes no exception for 
the use of discriminatory pictures. Given that the Act must be construed 
broadly to effectuate Congress’ purpose to provide “for fair housing 
throughout the United States,” 42 U.S.C. § 3601 (1982); Trafficante, 409 
U.S. at 209, it is clear that H U D’s interpretation of Section 3604(c) to 
apply to the discriminatory use of human models is reasonable, not 
contrary to clear congressional intent, and thus must be followed here. 
See Chevron U.S A ., Inc. v. Natural Resources Defense Council, Inc.,461 
U.S. 837,842-45 (1984); see also Hunter, 459 F.2d at 215 n .l 1 (citing the 
HUD regulations in support of its conclusion thatnewspapers are explicitly 
subject to the Act); Steiner, Clateman,l\4 F. Supp. at 713 n.3 (“use of all 
white human model display advertising is contrary to H.U.D. regulations 
which are entitled to deference”); Spann v. Colonial Village, Inc., 124 
F.R.D. 1, 3 (D. D.C. 1988) (“ [t]he regulations are of course entitled to 
substantial deference by the Court when interpreting the Fair Housing 
Act”) (citation omitted), rev’don other grounds and remanded, 899 F.2d 
24 (D.C. Cir.) cert, denied, 111 S. Ct. 508,509 (1990) and 111 S. Ct. 751 
(1991).

C. TH E FIR ST AM ENDM ENT DOES NOT 
SH IELD  C O M M E R C IA L SPEEC H  TH A T 
IND ICA TES A RA CIA L PR E FE R E N C E

Contrary to the overstated First Amendment claims of petitioner, 
the Second Circuit’s decision does not in any way affect a news publisher’s 
editorial independence, but rather involves the T im es’ highly lucrative 
and purely commercial real estate advertising section. See 923 F.2d at 
1002-1003 (Pet. App. 11 a-14a).2 * As this Court recently emphasized,

2. The Second Circuit properly recognized that, as a newspaper, petitioner is accorded
no special immunity from compliance with the A ct See 923 F.2d at 1003-1004 (Pet. 
App. 13a-14a). Indeed, this Court recognized justlastmonththatitis“beyonddispute
that4 [t]he publisher of a newspaper has no special immunity from the application of 
general laws.’ ” Cohen v. Cowles Media Co., 59 U.S.L.W. 4773,4775 (U.S. June 24, 
1991 No. 90-634)(quoting Associated Press v. NLRB, 301 U.S. 103,132-33 (1937)); 
see also 726 F. Supp. at 962 n.l (Pet. App. 37a n.l).



9

commercial speech is accorded only “ ‘a limited measure o f protection, 
commensurate with its subordinate position in the scale of First Amendment 
values, ’ and is subject to ‘ modes of regulation that might be impermissible 
in the realm of noncommercial expression.’ ” Board o f Trustees v. Fox, 
492 U.S. 469,477 (1989)(quoting Ohralik v. Ohio State Bar Ass’n, 436 
U.S. 447, 456 (1978)). Moreover, it is beyond dispute that illegal 
commercial speech receives no First Amendment protection. See Posadas 
de Puerto Rico Assocs. v. Tourism Co. o f Puerto Rico, 478 U.S. 328,340 
(1986); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’ n, 447 
U.S. 557, 563-64, 566 (1980).

As the Second Circuit correctly observed, the Court has already 
rejected petitioner’s argument that the First Amendment protects a 
newspaper’s publication of discriminatory advertisements. See 923 F.2d 
at 1003 (Pet. App. 12a). In Pittsburgh Press Co. v. Pittsburgh Comm’ n 
on Human Relations, 413 U.S. 376 (1973), a newspaper violated an 
ordinance prohibiting gender-based employment advertising by printing 
ads under sex-designated columns. In upholding the ordinance over the 
newspaper’s First Amendment challenge, the Court found that such ads 
are not protected by the First Amendment, even though the ads were 
discriminatory only by “implication” and not “overtly.” See id. at 387- 
89.

Similarly, the Times’ argument that it is merely the passive 
publisher o f the content-based decisions of third parties has already been 
squarely rejected. A “newspaper may not defend a libel suit on the ground 
that the falsely defamatory statements are not its own,” and this argument 
has no greater force in the commercial speech or discrimination context. 
See id. at 386.

Finally, there is no authority for petitioner’s argument that the 
ordinary reader standard adopted by the Second Circuit is too vague under 
the First Amendment. See Petition at 19. Indeed, just last year, the Court 
held that even with respect to a newspaper editorial, the legal standard for 
determining whether the newspaper is liable for defamatory opinions is 
“whether reasonable readers would have actually interpreted the statement 
as implying defamatory facts.” Milkovich v. Lorain Journal Co., 110 S. 
Cl 2695, 2710 n.3 (1990) (Brennan, J., dissenting) (stating unanimous 
aspect o f decision); id. at 2707 (majority opinion) (test is whether 
statement “ reasonably implies” defamatory facts or contains “false



10

connotations”). This reasonable reader standard, which newspapers must 
follow in publishing opinions about matters of public concern, is no more 
standardless or difficult to apply than the ordinary reader standard applied 
by the Second Circuit to determine liability for racially discriminatory 
advertising.

H . R EV IEW  O F TH E IN TER LO C U TO R Y  D ECISIO N  
BELO W  IS PR EM A TU RE

As the Second Circuit merely held that respondents’ complaint is 
sufficient to withstand a threshold motion to dismiss, there is no reason 
for the Court to consider this case at this time. The petition also raises 
constitutional issues which should not be ruled upon because the case can 
be resolved on other grounds. See, e.g.. Rescue Army v. Municipal Court 
o f Los Angeles, 331 U.S. 549,568-69 (1947); Ashwanderv. TV A, 297 U.S. 
288, 346 (1936) (Brandeis, J., concurring).

Reluctance to review interlocutory decisions is a time-honored 
principle followed by the Court in exercising its discretion to grant 
certiorari. Absent “extraordinary inconvenience and embarrassment in 
the conduct o f the cause,” the Court has traditionally declined to review 
decisions that do not finally resolve the litigation. American Constr. Co. 
v. Jacksonville, Tampa, and Key West Ry. Co., 148 U.S. 372,384 (1893). 
Lack of finality is often by itself “sufficient ground for the denial of the 
application.” Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 
251 ,258  (1916).

Finally, the Court should deny certiorari in this case to give other 
courts an opportunity to rule in similar pending cases. See Housing 
Opportunities Made Equal v. The Cincinnati Enquirer, Inc., 731 F. Supp. 
801 (S.D. Ohio 1990), appeal pending, No. 90-3176 (6th Cir.); Ragin v. 
Steiner, Clateman & Assocs., Inc., 714 F. Supp. 709 (S.D.N.Y. 1989) 
(trial to commence in Nov. 1991). Even if  there were ultimately a need 
for the Court to address the issues raised by petitioner, the Court should 
allow the lower courts time to address those issues first. See, e.g., 
Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918 (1950) 
(Frankfurter, J„ commenting on a denial o f certiorari).



11

CO NCLUSIO N

For the foregoing reasons, the petition for a writ of certiorari 
should be denied.

Dated: New York, New York 
July 22, 1991

Respectfully submitted,

Ju l iu s  L . C h a m b e r s  
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900 
K e r r y  A l a n  S c a n l o n  
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300
N A A C P  L e g a l  D e fe n se  a n d  

E d u c a t io n a l  F u n d , I n c .

/s /  K athleen M . C om frey  
K a t h l e e n  M . C o m fr e y  
Counsel o f Record 
K a r e n  M. C rupi 

S h e a r m a n  &  S ter lin g  
153 East 53rd Street 
New York, New York 10022 
(212) 848-4000

Counsel for Respondents



APPENDIX



lb

‘The ‘Washington Tost
1150 15th Street, N.W. 

WASHINGTON, D.C. 20071 
(202)334-6000

BOISEFEUILLET JONES, JR. 
Vice President and Counsel 

(202) 334-7141

August 4, 1986

Kerry Alan Scanlon, Esq.
Washington Lawyers Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W., Suite 450 
Washington, D.C. 20005

Dear Kerry:

This letter sets forth the agreement we have reached in settlement 
o f the real estate display advertising claims you have raised on behalf of 
the Fair Housing Council of Greater Washington, the Metropolitan 
Washington Planning & Housing Association, Inc., and Girardeau A. 
Spann.

By August 5, 1986, the Post will issue a policy statement 
regarding its commitment to nondiscriminatory equal housing opportunity 
in real estate advertising. The policy will be sent to all advertisers who 
placed real estate display advertisements during the first six months of 
1986 and will be sent to all new advertisers who place real estate display 
advertisements in The Post during the next three years. The policy will 
specify the following positions on logos and human models, to become 
effective as o f the September 5, 1986 editions.

Logos

Advertisements o f four column inches or larger must display the 
Equal Housing Opportunity logo, which includes the “Equal Housing 
Opportunity” slogan, published at24  C.F.R. § 109.30(a), or the substance 
o f the following statement:



2b

“We are pledged to the letter and spirit o f U.S. policy for 
the achievement of equal housing opportunity throughout 
the Nation. We encourage and support an affirmative 
advertising and marketing program in which there are no 
barriers to obtaining housing because of race, color, 
religion, sex, or national origin.”

The logo in such advertisements must meet the following minimum 
size requirements:

i. 2" x 2" in half page or larger;

ii. 1" x 1" in one-eighth page to half page;

iii. 1/2" x 1/2" in four column inches to one-eighth 
page.

All logos or statements must be clearly visible, and must be 
printed in display face roughly equivalent to other print found in the 
advertisement.

The Post will include in its Saturday real estate display advertising 
section the substance of the following Equal Housing Opportunity 
statement:

“All real estate advertised herein is subject to the Federal 
Fair Housing Act of 1968 which makes it illegal to 
indicate “any preference, limitations, or discrimination 
based on race, color, religion, sex or national origin, or 
an intention to make any such preferences, limitations, or 
discrimination based on race, color, religion, sex or 
national origin, or an intention to make any such 
preferences, limitation, or discrimination.”

“We will not knowingly accept any advertising for real 
estate which violates the law. All dwellings advertised 
are available on an equal opportunity basis.”

Human Models

Real estate display advertisements that depict human models 
who are racially identifiable, excepting only those humans obviously not



3b

depicted as residents or potential residents, should reflect an approximate 
cross-section o f the greater Washington, D.C. metropolitan area population, 
and to that goal must meet the following criteria:

1. In advertisements for a particular residential development or 
complex that depict a single model, one or two couples, or a single family, 
at least one out of every four advertisements are to include one or more 
blacks. (For advertisements for multiple developments or no particular 
development, this criterion will be applied according to the firm, owner 
or developer placing the ads.)

2. In each advertisement depicting three or more individuals, 
not falling within the first category, blacks must constitute at least 25% 
of the human models —  i.e., one black in a group of three or four models, 
two blacks in groups o f five to eight models, three blacks in group of nine 
to 12 models, etc.

3. Black models must be depicted in a manner and setting 
generally comparable to the depiction o f white models in any particular 
advertisement or series of advertisements placed by the same advertiser.

* * *

Recordkeeping

To carry out the above policy, The Post will perform the following 
recordkeeping. Beginning August 30, 1986 and for a period of three 
years, The Post through its real estate advertising sales manager will keep 
three copies o f each Saturday real estate display section (or o f whatever 
day of the week The Post runs the real estate display section if not 
Saturdays) and of each “W eekend” section. On a weekly basis during this 
period The Post will record data on the attached form regarding real estate 
display ads of four column inches in size or larger appearing in the section. 
Every four months during this period The Post will provide a summary of 
the weekly data to you (or other designated representative o f your clients). 
Upon request, The Post will make available the copies o f the real estate 
and W eekend sections it has saved and the weekly data forms it has 
compiled.



4b

Enforcement

The Post will make a good-faith effort to enforce the policy and 
will give prompt written notice to any advertiser who materially fails to 
comply with the policy as soon as such non-compliance is discovered by 
The Post. This notice will also inform advertisers that they must comply 
with the policy, and that The Post will enforce such compliance. If an 
advertiser again fails to comply at any time within the three months after 
the notice, The Post will again write the advertiser and state that the next 
ad containing human models must include one or more blacks and that any 
subsequent ads must conform with The Post’s policy. In the case of 
category 2 non-compliance, The Post will also make personal contact 
with the advertiser to emphasize that the non-complying ad must not be 
used again. If the non-complying advertiser fails to comply with the 
notices at any time during the next six months, The Post will notify you 
o f that fact and will either prohibit the advertiser from using human 
models in its real estate display advertisements or require pre-clearance 
of such ads with The Post until compliance (including adequate black 
human models to correct for the past non-com pliance) has been 
demonstrated for a period o f three months.

The Post will maintain a file of copies of all notices mailed to non­
complying advertisers and will permit you or your representative to 
inspect that file upon request. The Post will also place responsibility for 
monitoring compliance in a senior member o f its staff. If  your clients have 
questions or concerns about The Post’s monitoring or enforcement 
efforts, including any apparent efforts by advertisers to circumvent the 
policy, we will be glad to meet with you promptly. You or your clients 
also agree to meet with The Post to resolve questions or concerns if The 
Post’s policy, monitoring, or enforcement efforts have unreasonable 
consequences.

It is my understanding that The Post’s policy, if  implemented as 
set forth in this letter, will satisfy the concerns of your clients, the Fair 
Housing Council o f Greater Washington, the Metropolitan Washington 
Planning & Housing Association, Inc., and Girardeau Spann. In 
consideration for the implementation of the policy and requirements 
described in this letter, your clients agree not to pursue any legal or other 
action against The Post regarding the publication o f logos and human 
models in real estate display ads published in The Post to date. It is also



5b

my understanding that you and your clients are working with Journal 
Newspapers, Inc. so that it will enforce a similar policy. The Post 
understands that if  in any material way it fails to act in accordance with 
the terms o f this letter, your clients will be free to institute litigation to 
enforce this agreement.

The initial term o f this agreement is three years, and it will be 
extended for an additional two years if during the 12-month period after 
the initial term ends the number of black human models appearing in The 
Post’s real estate display ads is less than 20% of the total number o f such 
models. The limited term of this agreement does not mean that thereafter 
The Post intends to be less committed to a policy o f non-discriminatory 
real estate display advertising and to the principle that such advertising 
should be representative of the racial makeup of the greater Washington,
D.C. metropolitan area.

Sincerely,

/s/ Bo Jones______
Boisfeuillet Jones, Jr.

Agreed:

/s/ Kerry Alan Scanlon________________
Kerry Alan Scanlon, Esq.
W ashington Lawyers’ Committee 

for Civil Rights Under Law 
on behalf o f The Fair Housing Council of 

Greater Washington and The Metropolitan 
Planing & Housing Association, Inc., and 
Girardeau A. Spann



The Washington Post -  Real Estate Display Section Date of Edition

Advtr. (Dev. or 
firm/owner/ 
developer)

Logo /  Statement Human Models Location

Conf. Non-Conf. None Cate. 1 Cate. 2 DC Alex Arl. Frfx Mtgy PG Ot.
#Wh #Blk #Wh #BUt



Developments or Firms/Owners/Developers Advertising in The Washington Post

For 3 months period from

Advtr.
# of 
Ads

# w/ 
Conf. 
Logos

# w/
Non. Conf. 

Logos

# w/ 
no

Logos Cate. 1 Ads
Category 1 Ads

Cate. 2 Ads
Category 2 Ads

#Blk #W h #Blk #Wh



Noncompliance Notices Sent

For 3 month period from

Advertiser 1st or 2nd Notice Date and Category of Non-Complying Ad Date of Notice



9b

'The 'W ashington (Post
1150 15th Street, N.W. 

WASHINGTON, D.C. 20071 
(202)334-6000

JAMES E. CUMMINS
SALES MANAGER 

REAL ESTATE
334-7639

August 5, 1986

Dear Advertiser:

This letter is to inform you that The Washington Post is adopting 
a policy with very specific standards regarding human models and logos/ 
statements in real estate display advertising. The policy is attached and 
will become effective as of the Friday, September 5,1986, editions o f the 
newspaper.

The Post is adopting specific standards at this time because 
experience has shown that a policy of general principles alone has not 
worked well.

We approach this problem with an awareness of the history of 
housing advertising in the Washington, D.C. area. Until the early 1960s 
newspapers here carried separate “colored” listings in the classified 
section, and they allowed advertisements with explicit or subtle racial 
preferences during the 1960s.

In 1973, in response to complaints, The Post took affirmative 
measures to ensure that advertisements connoted non-discriminatory 
housing opportunity. The real estate department was instructed that 
human models in real estate display advertising must not have the effect 
o f signaling an intent to practice racial discrimination, and accordingly 
that models used in a series of such advertisements could not be solely of 
one race, but rather must contain a mixture so as to negate any possible 
mistaken inference of racial preferment. Advertisers were encouraged to 
make prominent use of the equal housing opportunity logo, as many



10b

already did. The Post itself placed its Equal Housing Opportunity 
statement in a more prominent position in the display advertising section 
and included the statement with greater frequency and intervals throughout 
the section.

Since then, The Post has on occasion called advertisers’ attention 
to the human model provisions of H.U.D.’s “Fair Housing Guidelines,” 
which state that models should reasonably represent majority and minority 
groups in the metropolitan area.

Recently, however, representatives of fair housing organizations 
which have monitored display advertising in The Post during the last year 
called our attention to the fact that the use of black human models has not 
been close to proportionate to this group’s representation in the D.C. 
metropolitan area. These organizations also found that few ads contained 
Equal Housing Opportunity logos or statements conforming with the 
standards suggested by H.U.D.’s guidelines. The purpose of the logos 
and statements, of course, is to inform the reader that property is available 
to persons regardless of race, etc.

As a result of these statistics, The Post agreed with the fair 
housing organizations that specific standards were now necessary, and 
that The Post would monitor compliance by advertisers. While there may 
be differing opinions on what the specific standards ought to be, I think 
people will agree that those adopted by The Post are reasonable. If you 
have any questions regarding the policy, you should not hesitate to get in 
touch with me or others in the real estate display department.

Sincerely,

/s/ James E. Cummins 
James E. Cummins

Attachment



l ib

The Washington Post Policy on Human Models and Logos 
In Real Estate Display Advertisements

Human Models

Real estate display advertisements that depict human models 
who are racially identifiable, excepting only those humans obviously not 
depicted as residents or potential residents, should reflect an approximate 
cross-section of the greater Washington, D.C. metropolitan area population, 
and to that goal must meet the following criteria:

1. In advertisements for a particular residential development or 
complex that depict a single model, one or two couples, o ra  single family, 
at least one out of every four advertisements are to include one or more 
blacks. (For advertisements for multiple developments, or no particular 
development, this criterion will be applied according to the firm, owner 
or developer placing the ads.)

2. In each advertisement depicting three or more individuals, 
not falling within the first category, blacks must constitute at least 25% 
of the human models —  i.e., one black in a group o f three or four models, 
two blacks in groups o f five to eight models, three blacks in group of nine 
to 12 models, etc.

3. Black models must be depicted in a manner and setting 
generally comparable to the depiction of white models in any particular 
advertisement or series of advertisements placed by the same advertiser.

Logos

Advertisements o f four column inches or larger must display the 
Equal Housing Oopportunity logo, which includes the “Equal Housing 
Opportunity” slogan, published at24C .F.R . § 109.30(a), or the substance 
o f the following statement:

“We are pledged to the letter and spirit of U.S. policy for 
the achievement o f equal housing opportunity throughout 
the Nation. We encourage and support an affirmative 
advertising and marketing program in which there are no 
barriers to obtaining housing because of race, color, 
religion, sex, or national origin.”



12b

The logo in such advertisements must meet the following minimum 
size requirements:

i. 2" x 2" in half page or larger;

ii. 1" x 1" in one-eighth page to half page;

iii. 1/2" x 1/2" in four column inches to one-eighth 
page.

All logos or statements must be clearly visible, and must be 
printed in display face roughly equivalent to other print found in the 
advertisement.

8/4/86



13b

THE NEW YORK TIMES COMPANY
229 West 43 Street 
New York 10036

Dear Advertiser:

It is a cornerstone o f The New York Tim es advertising 
acceptability policy that discriminatory advertising is unacceptable for 
publication. The Times also aware that discriminatory policies may at 
times be communicated in subtle ways —  ways that the most careful 
advertising review procedures might not catch.

The Times has recently received complaints that certain real 
estate advertising published in The Times does not comply with federal 
and state fair housing laws and regulations.

For example, it has been pointed out that some ads do not carry 
the “Equal Housing Opportunity” tag line, while other ads appear not to 
be in compliance with the regulations’ guidelines for use of professional 
models.

W hile it is not the intention o f The Times to usurp the role of 
government agencies in enforcing the law, we steadfastly believe that our 
policies must reflect both the requirement and spirit o f the fair housing 
laws.

Accordingly, The Times has taken the following steps:

• With our 1988 Classified Rate cards, The Times has included 
a reminder and reference to federal Fair Housing Act regulations. 
Additionally, The Tim es’s advertising acceptability standards, which 
already prohibit discriminatory ads has been amended to incorporate by 
specific reference the requirements of the Fair Housing Act and other 
laws against discrimination.

• All real estate advertising contracts will also refer advertisers 
to federal and state legal requirements, as well as to The Tim es’s 
acceptability standards. We urge all real estate advertisers and advertising



14b

agencies to review the Fair Housing Act regulations to ensure that their 
ads are in compliance with both the letter and spirit o f the law.

• Effective January 1,1988, The Times will require that all real 
estate display ads include the “Equal Housing Opportunity” tag line 
recommended by the federal regulations. Ads which fail to include this 
statement will be rejected.

• Finally, we intend to notify our fellow publishers in the New 
York Metropolitan area of the foregoing and will urge them to adopt 
similar measures.

While you have already received the 1988 rate card, we are 
enclosing an additional rate card to bring to your attention its reminder 
and reference to the federal Fair Housing Act requirements.

We know that you join us in the desire to make fair housing 
practices a reality in the New York Metropolitan area.

/s/ Robert P. Smith_______________

Robert P. Smith
Advertising Acceptability Manager



15b

STANDARDS OF ADVERTISING ACCEPTABILITY 

THE NEW YORK TIMES

The following describes some of the kinds of advertising 
which The Times will not accept:

1. Generally

• Advertisements which contains fraudulent, deceptive, 
or misleading statements or illustrations.

• Attacks of a personal character.

• Advertisements that are overly competitive or that refer 
abusively to the goods or services o f others.

2. Investments

Advertisements which do not comply with applicable federal, 
state and local laws and regulations.

3. Occult Pursuits

Advertisements for fortune telling, dream interpretations and 
individual horoscopes.

4. Foreign Languages

Advertisem ents in a foreign language (unless an English 
translation is included) except in special circumstances and when a 
summary o f the advertisement in English is included.

5. Discrimination

A dvertisem ents w hich fail to com ply w ith the express 
requirements o f federal and state laws against discrimination, including 
Title VII and the Fair Housing Act, or which otherwise discriminate on 
grounds o f race, religion, national origin, sex, age, marital status or 
disability.



16b

6. Offensive to Good Taste

Indecent, vulgar, suggestive or other advertising that, in the 
opinion o f The Times, may be offensive to good taste.

This list is not intended to include all the types o f advertisements 
unacceptable to The Times. Generally speaking, any other advertising 
that may cause financial loss to the reader, or injury to his health, or loss 
of his confidence in reputable advertising and ethical business practices 
is unacceptable.

RETAIL ADVERTISING 

1. Competitive Claims

A. Statements or representations which disparage the goods, 
price, service, business methods or advertising o f any 
competitor by name are not acceptable.

B. Statements which make or imply unsupportable claims 
that an advertiser will undersell competitors are not 
acceptable.