CERTIORARI TO THE COMMONWEALTH COURT OF PENNSYLVANIA
No. 72-419 Argued: March 20, 1973 --- Decided: June 21, 1973
MR. JUSTICE POWELL delivered the opinion of the Court.
The Human Relations Ordinance of he City of Pittsburgh (the Ordinance) has been construed below by [p378] the courts of Pennsylvania as forbidding newspapers to carry "help wanted" advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. We are called upon to decide whether the Ordinance, as so construed, violates the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the context in which it arises is critical to its resolution.
The Ordinance proscribes discrimination in employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex. [n1] In relevant part, § 8 of the Ordinance declares it to be unlawful employment practice, "except where based upon a bona fide occupational exemption certified by the Commission":
(a) For any employer to refuse to hire any person or otherwise discriminate against any person with respect to hiring . . . because of . . . sex.
* * * *
(e) For any "employer," employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or advertisement relating to "employment" or membership which indicates any discrimination because of . . . sex.
* * * *
(j) For any person, whether or not an employer, employment agency or labor organization, to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance. . . . [p379]
The present proceedings were initiated on October 9, 1969, when the National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations (the Commission), which is charged with implementing the Ordinance. The complaint alleged that the Pittsburgh Press Co. (Pittsburgh Press) was violating § 8(j) of the Ordinance by
allowing employers to place advertisements in the male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or exceptions. . . .
Finding probable cause to believe that Pittsburgh Press was violating the Ordinance, the Commission held a hearing, at which it received evidence and heard argument from the parties and from other interested organizations. Among the exhibits introduced at the hearing were clippings from the help wanted advertisements carried in the January 4, 1970, edition of the Sunday Pittsburgh Press, arranged by column. [n2] In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency carrying the listing, while others included somewhat more extensive job descriptions. [n3]
On July 23, 1970, the Commission issued a Decision and Order. [n4] It found that, during 1969, Pittsburgh Press carried a total of 248,000 help wanted advertisements; that its practice before October, 1969, was to use columns captioned "Male Help Wanted," "Female Help Wanted," and "Male-Female Help Wanted"; that it thereafter used the captions "Jobs -- Male Interest," "Jobs -- Female Interest," and "Male-Female"; and that the advertisements [p380] were placed in the respective columns according to the advertiser's wishes, either volunteered by the advertiser or offered in response to inquiry by Pittsburgh Press. [n5] The Commission first concluded that § 8(e) of the Ordinance forbade employers, employment agencies, and labor organizations to submit advertisements for placement in sex-designated columns. It then held that Pittsburgh Press, in violation of § 8(j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering and rejecting the argument that the Ordinance violated the First Amendment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed in all relevant respects by the Court of Common Pleas. [n6] On appeal in the Commonwealth Court, the scope of the order was narrowed to allow Pittsburgh Press to carry advertisements in sex-designated columns for jobs exempt from the antidiscrimination provisions of the Ordinance. As pointed out in that court's opinion, the Ordinance does not apply to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable, or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception. The modified order bars "all reference to sex in employment advertising column [p381] headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission." 4 Pa.Commw. 448, 470, 287 A.2d 161, 172 (1972). The Pennsylvania Supreme Court denied review, and we granted certiorari to decide whether, as Pittsburgh Press contends, the modified order violates the First Amendment by restricting its editorial judgment. 409 U.S. 1036 (1972). [n7] We affirm.
There is little need to reiterate that the freedoms of speech and of the press rank among our most cherished liberties. As Mr. Justice Black put it:
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our [p382] democracy.
New York Times Co. v. United States, 403 U.S. 713, 717 (1971) (concurring opinion). The durability of our system of self-government hinges upon the preservation of these freedoms.
[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. . . . A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.
Grosjean v. American Press Co., 297 U.S. 233, 250 (1936). The repeated emphasis accorded this theme in the decisions of this Court serves to underline the narrowness of the recognized exceptions to the principle that the press may not be regulated by the Government. Our inquiry must therefore be whether the challenged order falls within any of these exceptions.
At the outset, however, it is important to identify with some care the nature of the alleged abridgment. This is not a case in which the challenged law arguably disables the press by undermining its institutional viability. As the press has evolved from an assortment of small printers into a diverse aggregation including large publishing empires as well, the parallel growth and complexity of the economy have led to extensive regulatory legislation from which "[t]he publisher of a newspaper has no special immunity." Associated Press v. NLRB, 301 U.S. 103, 132 (1937). Accordingly, this Court has upheld application to the press of the National Labor Relations Act, ibid.; the Fair Labor Standards Act, Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946); [p383] Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946); and the Sherman Antitrust Act, Associated Press v. United States, 326 U.S. 1 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131 (1969). See also Branzburg v. Hayes, 408 U.S. 665 (1972). Yet the Court has recognized on several occasions the special institutional needs of a vigorous press by striking down laws taxing the advertising revenue of newspapers with circulations in excess of 20,000, Grosjean v. American Press Co., supra; requiring a license for the distribution of printed matter, Lovell v. Griffin, 303 U.S. 444 (1938); and prohibiting the door-to-door distribution of leaflets, Martin v. Struthers, 319 U.S. 141 (1043). [n8]
But no suggestion is made in this case that the Ordinance was passed with any purpose of muzzling or curbing the press. Nor does Pittsburgh Press argue that the Ordinance threatens its financial viability [n9] or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a contention would not be supported by the record.
In a limited way, however, the Ordinance, as construed, does affect the makeup of the help wanted section of the newspaper. Under the modified order, Pittsburgh Press will be required to abandon its present policy of providing [p384] sex-designated columns and allowing advertisers to select the columns in which their help wanted advertisements will be placed. In addition, the order does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.
Respondents rely principally on the argument that this regulation is permissible because the speech is commercial speech unprotected by the First Amendment. The commercial speech doctrine is traceable to the brief opinion in Valentine v. Chrestensen, 316 U.S. 52 (1942), sustaining a city ordinance which had been interpreted to ban the distribution by handbill of an advertisement soliciting customers to pay admission to tour a submarine. Mr. Justice Roberts, speaking for a unanimous Court, said:
We are . . . clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.
Id. at 54.
Subsequent cases have demonstrated, however, that speech is not rendered commercial by the mere fact that it relates to an advertisement. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a city official of Montgomery, Alabama, brought a libel action against four clergymen and the New York Times. The names of the clergymen had appeared in an advertisement, carried in the Times, criticizing police action directed against members of the civil rights movement. In holding that this political advertisement was entitled to the same degree of protection as ordinary speech, the Court stated:
That the Times was paid for publishing the advertisement is as immaterial in this connection as [p385] is the fact that newspapers and books are sold.
Id. at 266. See also Smith v. California, 361 U.S. 147 (1959); Ginzburg v. United States, 383 U.S. 463, 474 (1966). If a newspaper's profit motive were determinative, all aspects of its operations -- from the selection of news stories to the choice of editorial position -- would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.
The critical feature of the advertisement in Valentine v. Chrestensen was that, in the Court's view, it did no more than propose a commercial transaction, the sale of admission to a submarine. In New York Times Co. v. Sullivan, MR. JUSTICE BRENNAN, for the Court, found the Chrestensen advertisement easily distinguishable:
The publication here was not a "commercial" advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern.
376 U.S. at 266. In the crucial respects, the advertisements in the present record resemble the Chrestensen rather than the Sullivan advertisement. None expresses a position on whether, as a matter of social policy, certain positions ought to be filled by members of one or the other sex, nor does any of them criticize the Ordinance or the Commission's enforcement practices. Each is no more than a proposal of possible employment. The advertisements are thus classic examples of commercial speech. [p386]
But Pittsburgh Press contends that Chrestensen is not applicable, as the focus in this case must be upon the exercise of editorial judgment by the newspaper as to where to place the advertisement, rather than upon its commercial content. The Commission made a finding of fact that Pittsburgh Press defers in every case to the advertiser's wishes regarding the column in which a want and should be placed. It is nonetheless true, however, that the newspaper does make a judgment whether or not to allow the advertiser to select the column. We must therefore consider whether this degree of judgmental discretion by the newspaper with respect to a purely commercial advertisement is distinguishable, for the purposes of First Amendment analysis, from the content of the advertisement itself. Or, to put the question differently, is the conduct of the newspaper with respect to the employment want and entitled to a protection under the First Amendment which the Court held in Chrestensen was not available to a commercial advertiser?
Under some circumstances, at least, a newspaper's editorial judgments in connection with an advertisement take on the character of the advertisement and, in those cases, the scope of the newspaper's First Amendment protection may be affected by the content of the advertisement. In the context of a libelous advertisement, for example, this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement. New York Times Co. v. Sullivan, supra, at 279-280. Assuming the requisite state of mind, then, nothing in a newspaper's editorial decision to accept an advertisement changes the character of the falsely defamatory statements. The newspaper may not defend a libel suit on the ground that the falsely defamatory statements are not its own. [p387]
Similarly, a commercial advertisement remains commercial in the hands of the media, at least under some circumstances. [n10] In Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972), aff'g 333 F.Supp. 582 (DC 1971), this Court summarily affirmed a district court decision sustaining the constitutionality of 15 U.S.C. § 1335 which prohibits the electronic media from carrying cigarette advertisements. The District Court there found that the advertising should be treated as commercial speech, even though the First Amendment challenge was mounted by radio broadcasters, rather than by advertisers. Because of the peculiar characteristics of the electronic media, National Broadcasting Co. v. United States, 319 U.S. 190, 226-227 (1943), Capital Broadcasting is not dispositive here on the ultimate question of the constitutionality of the Ordinance. Its significance lies, rather, in its recognition that the exercise of this kind of editorial judgment does not necessarily strip commercial advertising of its commercial character. [n11]
As for the present case, we are not persuaded that either the decision to accept a commercial advertisement which the advertiser directs to be placed in a sex-designated column or the actual placement there lifts the newspaper's actions from the category of commercial speech. By implication at least, an advertiser whose want and appears in the "Jobs -- Male Interest" column [p388] is likely to discriminate against women in his hiring decisions. Nothing in a sex-designated column heading sufficiently dissociates the designation from the want ads placed beneath it to make the placement severable for First Amendment purposes from the want ads themselves. The combination, which conveys essentially the same message as an overtly discriminatory want ad, is, in practical effect, an integrated commercial statement.
Pittsburgh Press goes on to argue that, if this package of advertisement and placement is commercial speech, then commercial speech should be accorded a higher level of protection than Chrestensen and its progeny would suggest. Insisting that the exchange of information is as important in the commercial realm as in any other, the newspaper here would have us abrogate the distinction between commercial and other speech.
Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance. [n12] We have no doubt that a newspaper constitutionally could be forbidden to publish a want and proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns captioned "Narcotics for Sale" and "Prostitutes Wanted," rather than stated within the four corners of the advertisement.
The illegality in this case may be less overt, but we see no difference in principle here. Sex discrimination in nonexempt employment has been declared illegal under [p389] § 8(a) of the Ordinance, a provision not challenged here. And § 8(e) of the Ordinance forbids any employer, employment agency, or labor union to publish or cause to be published any advertisement "indicating" sex discrimination. This, too, is unchallenged. Moreover, the Commission specifically concluded that it is an unlawful employment practice for an advertiser to cause an employment advertisement to be published in a sex-designated column.
Section 8(j) of the Ordinance, the only provision which Pittsburgh Press was found to have violated and the only provision under attack here, makes it unlawful for "any person . . . to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance." The Commission and the courts below concluded that the practice of placing want ads for nonexempt employment in sex-designated columns did indeed "aid" employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal, and the restriction on advertising is incidental to a valid limitation on economic activity.
It is suggested, in the brief of an amicus curiae, that, apart from other considerations, the Commission's order should be condemned as a prior restraint on expression. [n13] As described by Blackstone, the protection against prior [p390] restraint at common law barred only a system of administrative censorship:
To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, . . . is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government.
4 W. Blackstone, Commentaries *152. While the Court boldly stepped beyond this narrow doctrine in Near v. Minnesota, 283 U.S. 697 (1931), in striking down an injunction against further publication of a newspaper found to be a public nuisance, it has never held that all injunctions are impermissible. See Lorain Journal Co. v. United States, 342 U.S. 143 (1951). The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.
The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. Cf. New York Times Co. v. United States, 403 U.S. 713 (1971). Moreover, the order is clear, and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected. [n14] [p391]
We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial. We hold only that the Commission's modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press.
APPENDIX TO OPINION OF THE COURT
Among the advertisements carried in the Sunday Pittsburgh Press on January 4, 1970, was the following one, submitted by an employment agency and placed in the "JOBS -- MALE INTEREST" column:
ACAD. INSTRUCTORS. . . . . . . . .$13,000
ACCOUNTANTS. . . . . . . . . . . . 10,000
ADM. ASS'T, CPA . . . . . . . .. . 15,000
ADVERTISING MGR. . . . . . . . . . 10,000
BOOKKEEPER F-C. . . . . . . .. . . 9,000
FINANCIAL CONSULTANT . . . . . . . 12,000
MARKETING MANAGER. . . . . . . . . 15,000
MGMT. TRAINEE. . . . . . . . . . . 8,400
OFFICE MGR. TRAINEE. . . . . . . . 7,200
LAND DEVELOPMENT . . . . . . . . . 30,000
PRODUCT. MANAGER . . . . . . . . . 18,000
PERSONNEL MANAGER . . . .. . . . . OPEN
SALES-ADVERTISING. . . . . . . . . 8,400
SALES-CONSUMER . . . . . . . . . . 9,600
SALES-INDUSTRIAL . . . . . . . . . 12,000
SALES-MACHINERY. . . . . . . . . . 8,400
RETAIL MGR . . . . . . . . . . . . 15,000
Most Positions Fee Paid
2248 Oliver Bldg. 261-2250
On the same day, the same agency's advertisement in the "JOBS -- FEMALE INTEREST" column was as follows:
ACAD. INSTRUCTORS. . . . . . . . .$13,000
ACCOUNTANTS. . . . . . . . . . . . 6,000
AUTO-INS. UNDERWRITER. . . . . . . OPEN
BOOKKEEPER-INS . . . . . . . . . . 5,000
CLERK-TYPIST . . . . . . . . . . . 4,200
DRAFTSMAN. . . . . . . . . . . . . 6,000
KEYPUNCH D. T. . . . . . . . . . . 6,720
KEYPUNCH BEGINNER. . . . . . . . . 4,500
PROOFREADER. . . . . . . . . . . . 4,900
RECEPTIONIST -- Mature D. T. . . . OPEN
EXEC. SEC. . . . . . . . . . . . . 6,300
SECRETARY. . . . . . . . . . . . . 4,800
SECRETARY, Equal Oppor. . . . . . 6,000
SECRETARY D. T. . . . . . . . . . 5,400
TEACHERS-Pt. Time. . . . . . . . . day 33.
TYPIST-Statistical . . . . . . . . 5,000
Most Positions Fee Paid
2248 Oliver Bldg. 261-2250
Characteristic of those offering fuller job descriptions was the following advertisement, carried in the "JOBS -- MALE INTEREST" column:
STAFF MANAGEMENT TRAINEE
If you have had background in the manage-
ment of small business then this could be
the stepping stone you have been waiting
for. You will be your own boss with no
cash outlay. Call or write today.
1. For the full text of the Ordinance and the 1969 amendment adding sex to the list of proscribed classifications, see App. 410a-436a.
2. These exhibits are reproduced in App. 299a-333a.
3. For examples of these want ads, see the Appendix to this opinion, infra at 392-393.
4. The full text of the Commission's Decision and Order is set forth in the Appendix to the Petition for Certiorari at 1a-18a.
5. The Commission specifically found that:
5. The Pittsburgh Press permits the advertiser to select the column within which its advertisement is to be inserted.
6. When an advertiser does not indicate a column, the Press asks the advertiser whether it wants a male or female for the job and then inserts the advertisement in the jobs -- male interest or jobs -- female interest column accordingly.
Id. at 16a.
6. See id. at 19a.
7. Pittsburgh Press also argues that the Ordinance violates due process in that there is no rational connection between sex-designated column headings and sex discrimination in employment. It draws attention to a disclaimer which it runs at the beginning of each of the "Jobs -- Male Interest" and "Jobs -- Female Interest" columns:
Notice to Job Seekers
Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances -- local, state, and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination.
It suffices to dispose of this contention by noting that the Commission's common sense recognition that the two are connected is supported by evidence in the present record. See App. 236a-239a. See also Hailes v. United Air Lines, 464 F.2d 1006, 1009 (CA5 1972). The Guidelines on Discrimination Because of Sex of the Federal Equal Employment Opportunity Commission reflect a similar conclusion. See 9 CFR § 1604.4.
8. See also Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
9. In response to questioning at oral argument, counsel for Pittsburgh Press stated only:
Now, I'm not prepared to answer whether the company makes money on [want ads] or not. I suspect it does. They charge for want ads, and they do make a lot of their revenue in the newspaper through advertising, of course, and I suspect it is profitable.
Tr. of Oral Arg. 10.
10. In Head v. New Mexico Board, 374 U.S. 424 (1963), this Court upheld an injunction prohibiting a newspaper and a radio station from carrying optometrists' advertisements which violated New Mexico law. But because the issue had not been raised in the lower courts, this Court did not consider the appellant's First Amendment challenge. Id. at 432 n. 12.
11. See also New York State Broadcasters Assn. v. United States, 414 F.2d 990 (CA2 1969), cert. denied, 396 U.S. 1061 (1970) (refusing to strike down a ban on broadcasts promoting a lottery).
12. See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev. 1191, 1195-1196 (1965). Cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 593 n. 42 (D.C.1971) (Wright, J., dissenting); Camp-of-the-Pines, Inc. v. New York Times Co., 184 Misc. 389, 53 N.Y.S.2d 475 (1945).
13. Brief for Amicus Curiae American Newspaper Publishers Association 22 n. 32.
14. The dissent of THE CHIEF JUSTICE argues that Pittsburgh Press is in danger of being "subject to summary punishment for contempt for having made an ‘unlucky' legal guess." Post at 396-397. The Commission is without power to punish summarily for contempt. When it concludes that its order has been violated,
the Commission shall certify the case and the entire record of its proceedings to the City Solicitor, who shall invoke the aid of an appropriate court to secure enforcement or compliance with the order or to impose [a fine of not more than $300] or both.
§ 14 of the Ordinance; Appendix to Pet. for Cert. 103a. But, more fundamentally, it was the newspaper's policy of allowing employers to place advertisements in sex-designated columns without regard to the exceptions or exemptions contained in the Ordinance, not its treatment of particular want ads, which was challenged in the complaint and was found by the Commission and the courts below to be violative of the Ordinance. Nothing in the modified order or the opinions below prohibits the newspaper from relying in good faith on the representation of an advertiser that a particular job falls within an exception to the Ordinance.