923 F.2d 995 (2d Cir. 1991)
The New York Times Company is the publisher of The New York Times, a nationally known newspaper.1 The individual plaintiffs are black persons who have been looking for housing in the New York metropolitan area.2 Plaintiff Open Housing Center, Inc., is a not-for-profit New York corporation, one of the primary goals of which is to eliminate racially discriminatory housing practices.3
On January 12, 1989, plaintiffs commenced this action under the Fair Housing Act, 42 U.S.C. § 3604(a) and (c), the Civil Rights Act of 1866, 42 U.S.C. § 1982, the Civil Rights Act of 1870, 42 U.S.C. § 1981, and the Thirteenth Amendment.4 The complaint alleged that during the twenty year period since the Act was passed, advertisements appeared in the Sunday Times featuring thousands of human models of whom virtually none were black.5 While many of the white human models depict representative or potential home owners or renters, the few blacks represented are usually depicted as building maintenance employees, doormen, entertainers, sports figures, small children or cartoon characters.6 The complaint further alleged that the Times has continued to publish numerous advertisements that picture all-white models in advertisements for realty located in predominantly white buildings, developments, communities or neighborhoods, and a few advertisements that picture all black models in advertisements for realty located in predominantly black buildings, developments, communities or neighborhoods.7
The Times moved under Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief may be granted.8 Judge Haight dismissed the claims based on the Thirteenth Amendment and Sections 1981 and 1982, as well as the claim based on Section 3604(a).9 With respect to the claim under Section 3604(c), Judge Haight denied the motion to dismiss after concluding that the pattern of ads alleged, if proven, would support a finding that the Times had published ads indicating a racial preference.10
The Times appealed the denial of its motion to dismiss the Section 3604(c) claim.11 The appeal is pursuant to Fed. R. Civ. P. 54(b) and 28 U.S.C. § 1292(b).12
Whether the complaint alleges facts sufficient to state a claim under 42 U.S.C. § 3604(c) that the New York Times published real estate advertisements indicating a racial preference?13
Section 3604(c) makes it unlawful to publish any advertisement with respect to the sale or rental of a dwelling that indicates any preference based on race.14 Liability follows when an ordinary reader would understand the ad as suggesting a racial preference.15 The statute reaches subtle messages conveyed through the selection of human models rather than only overt statements such as burning crosses or swastikas.16
Yes. The complaint alleges a long-standing pattern in which advertisements appearing in the Sunday Times over twenty years featured thousands of human models of whom virtually none were black.17 The few blacks depicted were usually shown as building maintenance employees, doormen, entertainers, sports figures, small children or cartoon characters rather than as representative or potential home owners or renters.18 The complaint further alleges that the Times published numerous advertisements picturing all-white models for realty located in predominantly white buildings, developments, communities or neighborhoods and a few advertisements picturing all-black models for realty located in predominantly black buildings, developments, communities or neighborhoods.19
This pattern reflects targeting of racial groups.20 These specific allegations of a repetitive pattern of model selection that an ordinary reader could view as indicating a racial preference are sufficient to survive a Rule 12(b)(6) motion.21 They permit proof that the Times published ads violating the ordinary-reader standard under Section 3604(c).22
The complaint alleges facts sufficient to state a claim under 42 U.S.C. § 3604(c).23
Whether the use of human models in real estate advertisements can convey a message indicating a racial preference under Section 3604(c)?24
Section 3604(c) reaches the use of models as a medium for the expression of a racial preference.25 Congress prohibited all expressions of racial preferences in housing advertisements and did not limit the prohibition to racial messages conveyed through certain means.26 A trier of fact could find that in this age of mass communication advertisers target groups with racial as well as other characteristics.27 Ads with models of a particular race and not others will be read by the ordinary reader as indicating a racial preference.28
Yes. The complaint describes advertisements in which white human models are depicted as representative or potential home owners or renters while black models are depicted as service employees.29 All-white models appear for housing in predominantly white areas while all-black models appear for housing in predominantly black areas.30 These facts permit a trier of fact to conclude that the selection of models conveys a racial message to the ordinary reader.31
Advertisers consciously or unconsciously choose portrayals that attract targeted consumers.32 The repeated exclusion of black models from consumer roles while including them only in service roles or in segregated neighborhoods can discourage an ordinary reader of a particular race from responding.33
The use of human models in real estate advertisements can convey a message indicating a racial preference under Section 3604(c).34
Whether Section 3604(c) is unconstitutionally vague as applied to the selection of models in real estate advertisements?35
The ordinary-reader standard provides constitutionally adequate notice of the prohibited conduct.36 It is nothing more than the common law's reasonable man standard by whose measure human conduct has been judged for centuries.37 Close questions that may arise in particular cases do not render the statute hopelessly vague on a facial challenge.38
No. The Times's argument that the statute is vague rests on an unstated premise that the selection of models in advertising is entirely random.39 It also rests on the premise that publishers of major newspapers lack the sophistication to notice racial messages apparent to others.40 The Times admits that it presently reviews advertising submissions to avoid publishing ads that do not meet its Standards of Advertising Acceptability.41 They do so under existing standards of acceptability that already include compliance with the Fair Housing Act.42
The ordinary-reader test therefore supplies sufficient guidance for publishers to avoid indicating a racial preference through model choices.43
Section 3604(c) is not unconstitutionally vague as applied to the selection of models in real estate advertisements.44
Whether the First Amendment protects a newspaper's publication of real estate advertisements that indicate a racial preference?45
Commercial speech related to illegal activity receives no First Amendment protection.46 Real estate advertisements that indicate a racial preference further the illegal activity of racial discrimination in the sale or rental of housing prohibited by Section 3604(a).47 They are therefore unprotected in the same manner as sex-designated help-wanted columns that furthered illegal employment discrimination.48
No. The complaint alleges that the advertisements discourage black people from pursuing housing opportunities by conveying a racial message through the use of models.49 The Times's publication of such advertisements therefore aids the violation of the Fair Housing Act in the same way that publication of sex-designated columns aided violations of an antidiscrimination ordinance.50 Because Congress possesses unquestioned power to prohibit speech that directly furthers discriminatory sales or rentals of housing, the statute's application to these advertisements imposes no unconstitutional burden on the press.51 It does not require the press to act as an enforcer beyond the monitoring already undertaken under the Times's own Standards of Advertising Acceptability.52
The First Amendment does not protect a newspaper's publication of real estate advertisements that indicate a racial preference.53