Due to the wording of the Fair Housing Act and recent court proceedings, newspapers have become enforcers of the FHA, even through it is often difficult to determine if ads are in compliance with the law.
The Fair Housing Act of 1968, which makes discriminatory housing advertising illegal, has been on the books for more than 30 years. Recent lawsuits and threatened lawsuits, however, have caused publishers of housing advertising (primarily newspapers), press associations and trade magazines to give renewed attention to this issue - both in terms of its impact on classified advertising operations and its importance as a commercial speech issue.
The majority of housing advertisements in newspapers run under the classified advertising columns, representing roughly 18 percent of a $16.8 billion area of newspapering that receives little scholarly attention.(1) Yet it is important for newspaper professionals and others involved in the selling and dissemination of housing advertising (e.g., real estate firms, internet site managers) to have a clear understanding of this area of advertising regulation, a point that is confirmed by the case of one group of newspapers which filed bankruptcy as a result of an apartments for rent line ad.
What makes the Fair Housing Act unique as an instrument of commercial speech regulation is that most other codified restrictions of advertising concern only the advertisers themselves; the FHA specifically stipulates that liability for discriminatory advertising includes publishers of advertising as well.(2) The portion of the FHA (as amended in 1988) that most concerns advertisers and publishers states that it is unlawful:
to make, print, or publish, or cause to be made, printed or published any
notice, statement or advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or discrimination based
on race, color, religion, sex, handicap, familial status, or national
origin, or an intention to make any such preference, limitation, or
discrimination. (Sec. 3604c)
Since the FHA was amended in 1988 (an update that added handicap and familial status as discriminatory categories), a revitalized interest has been apparent among groups and individuals sensitive to housing discrimination issues. In recent years, lawsuits alleging discriminatory housing advertising have been filed or threatened against newspapers in Iowa, New York, Oregon, Ohio, Wisconsin, California, Pennsylvania, Illinois and the District of Columbia. Newspapers have based defenses on the grounds that they should not be responsible for determining advertisers' intentions; that requiring newspapers to monitor advertisements violates the First Amendment; that the restrictions also compromise the free speech rights of the advertisers; that newspapers should not be legally responsible for the ratio of minorities in advertisements created and submitted to them by outside agencies; and that it is unreasonable to expect newspaper staffs to have the necessary legal expertise to discern all possible FHA violations in the housing advertising that is submitted to them.(3)
The results of these cases, many of which were settled out of court, do not provide publishers with any clear legal interpretation as to the extent of their potential liability for discriminatory ads under the FHA. Resolving these issues of liability and their effects on newspapers and other carriers of housing advertising (which includes increasing numbers of cable television channels, Web sites and computer bulletin boards) is something that will likely require several years and several more cases winding their way through the legal system. Until a more clear and definitive interpretation of the law is available, however, newspaper publishers, advertising directors and classified advertising managers must continue to produce an advertising-dependent news product and, at the same time, try to minimize their legal risks without knowing for certain where all those risks lie. …