By Kerwin, Ann Marie
Editor & Publisher , Vol. 124, No. 6
Newspapers as enforcers of civil rights
A New York federal appeals court has upheld a ruling that newspapers can be held responsible for running ads that violate the U.S. Fair Housing Act, raising questions about whether newspapers will be required to be the enforcers of civil rights laws against discriminatory advertising.
The case, involving the New York Times and the New York Open Housing Center, was brought to court by the group of fair-housing advocates in 1989. They charged that during the past 20 years, the New York Times ran real estate advertisements that showed almost exclusively white models, communicating a "whites only" message to potential customers.
The Times argument said that the suit should be dismissed because requiring newspapers to monitor ads would violate the First Amendment. The newspaper also said that the restrictions were a violation of advertisers' free speech rights because the activity being advertised, real estate sales or rentals, is legal.
The Times' motion to dismiss the case without a trial was rejected on Jan. 23 by the United States Court of Appeals for the Second Circuit.
The Fair Housing Act of 1968 prohibits the publication of real estate ads "that indicate any preference based on race", and because the court believes it can be alleged that the Times published such ads, it denied the motion to dismiss.
"We perceive no disruption of the press's traditional role that will result from prohibiting the publication of real estate ads that, to the ordinary reader, indicate a racial preference," said the three-judge panel. Because the Times already routinely monitors ads for such things as deceptive claims or indecent language, "it strains the credulity beyond the breaking point to assert that monitoring ads for racial messages imposes an unconstitutional burden."
Because the ads allegedly promote illegal discrimination, the court ruled that the restrictions do not violate commercial free speech rights. Commercial speech is the least protected form of expression under the Constitution.
Nancy Nielson, spokesperson for the Times, said they were studying the case to determine what the next move should be.
"The Fair Housing Act does not specify a number or ratio of minorities that must appear in the ads," said Nielson. "That is not the role of the press to determine, it is the role of the government. We have obeyed the law."
An argument of the Times was that if the Fair Housing Act provision about depicting racial preference were applied to the newspaper, the specter of racially conscious decisions and of racial quotas in advertising will become a reality.
The court found that this concern was "overblown" since the quota controversy principally concerns selection of persons for employment or school admissions. Because the use of models in advertising involves building an image from scratch to convey a specific message, the court found that a conscious racial decision regarding models seems almost inevitable.
Therefore, an interpretation of the act that may lead to some race-conscious decision making to avoid indicating a racial preference is "hardly a danger to be averted at all costs," the three-judge panel wrote. …