A Social Norm Theory of Regulating Housing Speech under the Fair Housing Act

By Stern, Stephanie M. | Missouri Law Review, Spring 2019 | Go to article overview

A Social Norm Theory of Regulating Housing Speech under the Fair Housing Act


Stern, Stephanie M., Missouri Law Review


INTRODUCTION

Section 3604(c) of the Fair Housing Act ("FHA"), (1) which prohibits discriminatory housing advertisements and statements, compels some surprising results. It regulates the content of commercial speech in the absence of an accompanying or subsequent discriminatory act (e.g., refusal to sell or rent). (2) For example, a landlord who advertises "no Jews" or "prefer no children" in a newspaper advertisement has violated [section] 3604(c) even if he or she subsequently rents to a Jewish person or family with young children. (3) Oral statements that indicate preference or discrimination, such as asking a potential buyer who phones to inquire about a property if he or she is white, similarly violate [section] 3604(c). (4)

Section 3604(c) was controversial at its inception and remains so today. Scholars have called the prohibition on discriminatory housing statements and publications the FHA's "most intriguing provision," while critics have alleged it infringes on freedom of speech, delivers minimal benefits, and entraps small-scale landlords or roommate seekers who are unaware of its prohibitions. (5) Section 3604(c) presents puzzles that have tugged at housing policymakers and scholars since the FHA's inception. For example, the regulation of housing statements and advertisements is more expansive than the FHA's treatment of discriminatory refusals to rent, sell, or lend. The major exemptions to liability under the FHA do not apply to [section] 3604(c). (6) In addition, unlike other anti-discrimination laws, [section] 3604(c) does not require that the defendant have discriminatory intent or, as discussed above, have committed a discriminatory act in a real estate transaction. (7) Why does [section] 3604(c) impose stricter liability regardless of intent, with fewer exemptions, than the FHA provisions addressing actual acts of housing discrimination? One wonders why the FHA, which scraped through the legislative process amid controversy and resistance, ultimately included such a robust provision. (8)

Psychology research on social norms suggests some answers. Social norms research reveals important reasons the FHA should regulate speech despite its costs--and why it should do so robustly and regardless of the speaker's intent. Social norms refer to expectations for individual behavior or attitudes derived from the norms of a group that the individual identifies with or values. (9) These expectations define and reaffirm the identity and composition of the group. (10) Communications, both written and oral, are primary sources of information about the prevailing norms of the group. (11) Statements and other forms of communication affect listeners' views of other groups and their behaviors toward members of "outgroups." (12) What we believe others think about groups, such as African-Americans, Christians, or obese individuals, is a primary determinant of our own prejudices.

A substantial body of empirical research shows that reducing the appearance of prejudiced attitudes or acts of discrimination can lessen the expression of prejudiced attitudes and promote egalitarian behaviors in listeners. (13) Specifically, statements that indicate a norm or consensus among a group or that activate a pre-existing norm can shift the attitudes expressed by listeners in the direction of that statement. (14) Even highly prejudiced individuals report lower levels of prejudice and more willingness for contact with members of other groups after they learn that members of a group they identify with (e.g., fellow university students) hold unprejudiced attitudes. (15) The limited number of studies that have examined behavior have found that exposure to discriminatory or egalitarian social norms about a group also affects listeners' subsequent behaviors and interactions with that group. (16) As social psychologists Gretchen Sechrist and Charles Stangor observe, "If there is any lesson to be learned from the history of social psychology, it is that attitudes change not so much through persuasive appeals from others or even from direct experience as from perceptions about the beliefs of important in-group members. …

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