The Bauers ask this court to broadly and generously construe the term "owner" set forth in the exemption. While the Bauers may not have been engaged in a sham sale of their home to avoid the reach of the Fair Housing Act, the broad construction of "owner" advocated by defendants would effectively encourage others to engage in discrimination prohibited by the Act and would not serve the policy reasons behind the Act to provide fair housing throughout the country. Given the rules of statutory construction, a narrow reading of the exemption is appropriate. Because the Bauers have not met their burden of showing that the property in question falls within the statutory exemption set forth in section 3603(b)(2), defendants' motion for summary judgment is denied.
II. Sun Publications' Motion for Summary Judgment
Sun Publications has moved for summary judgment on the basis that a newspaper's decision to accept and publish rental advertisements is an activity protected by the First Amendment. Defendant further contends that the advertisement at issue is facially non-discriminatory and to require the newspaper to investigate possible discriminatory advertisements would turn the newspaper into a regulatory agency.
It is well settled that section 3604(c) of the Fair Housing Act does not violate the First Amendment and that publication of advertisements which express a preference in selling or leasing a dwelling based on one of the criteria prohibited by the Act is not protected commercial speech. Ragin v. New York Times Co., 923 F.2d 995 (2d Cir.), cert. denied, 116 L. Ed. 2d 54, 112 S. Ct. 81 (1991); United States v. Hunter, 459 F.2d 205, 213 (4th Cir.), cert. denied, 409 U.S. 934, 34 L. Ed. 2d 189, 93 S. Ct. 235 (1972). Legislative history also supports the conclusion that publication of discriminatory classified advertisements in newspapers was one of the evils the Act was intended to prevent. Hearings on S. 1358, S. 2114 and S. 2280 before the Subcommittee on Housing and Urban Affairs, Senate Committee on Banking and Currency, 90th Cong. 1st Sess. at 386, 388 (1967).
Ragin involved a section 3604(c) action against the New York Times Company for allegedly publishing real estate advertisements which used white and black human models to express racial preferences. In its motion to dismiss, defendant challenged the constitutionality of section 3604(c) and argued that the statute improperly regulated protected commercial speech. The district court denied the motion and the matter was certified for immediate appeal. The Second Circuit affirmed the ruling and held that the government has the power to ban commercial speech related to illegal activity pursuant to Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 563, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980) and Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 388, 37 L. Ed. 2d 669, 93 S. Ct. 2553 (1973). The Court reasoned that advertisements indicating an impermissible preference in housing were not protected commercial speech.
The Ragin Court further rejected the argument that section 3604(c) places an undue burden on the newspaper to investigate and police advertisements. The court found this burden no more onerous than that which the newspaper already undertook in reviewing advertisements for other improprieties. 923 F.2d at 1004. In United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934, 34 L. Ed. 2d 189, 93 S. Ct. 235 (1972), the court also rejected this argument by explaining that a newspaper publisher can readily determine from the face of an advertisement whether it expresses a discriminatory preference. "However the language of the advertisement is couched, the purpose of an advertiser who wishes to publish an advertisement in violation of the Act is to communicate his intent to discriminate and a newspaper publisher can divine this intent as well as any of the readers." Id. at 213.
Defendant also argues that the advertisement is not discriminatory on its face. In Ragin, which was previously discussed by this court, defendant published real estate advertisements depicting white models as potential buyers or renters while black models were largely portrayed as maintenance employees and doormen. The few advertisements that exclusively featured black models were for buildings in predominantly black neighborhoods. The court rejected the newspaper's argument that the advertisements were facially nondiscriminatory and held that a trier of fact could conclude that such models expressed a racial preference:
Congress prohibited all expressions of racial preferences in housing advertisements and did not limit the prohibition to racial messages conveyed through certain means. Neither the text of the statute nor its legislative history suggests that Congress intended to exempt from its proscriptions subtle methods of indicating racial preferences.
923 F.2d at 1000. The Court also refused to limit or "trivialize" the statute by "construing it to outlaw only the most provocative and offensive expressions of racism or statements indicating an outright refusal to sell or rent to persons of a particular race." Ragin, 923 F.2d at 999. Similarly, in Holmgren v. Little Village Community Reporter, 342 F. Supp. 512 (N.D. Ill. 1971), the court found that newspaper advertisements which stated a preference for buyers and tenants who spoke certain languages constituted a preference for persons of certain national origins, or at least an intention to make such a preference. The court found such advertisements to be unlawful despite defendants' arguments that the purpose of the language requirement was to foster communication and understanding between the parties. Id. at 513.
Here, the defendant newspaper ran an advertisement which expressed the following preference: "Perfect for single or couple." Contrary to defendant's assertions, the language of the advertisement is not facially nondiscriminatory as a matter of law. The inference that the Bauers would not rent to families with children can be drawn from the clearly expressed preference for a single individual or couple. Methods of indicating prohibited preferences may be subtle as the Ragin Court determined. 923 F.2d at 1000. Section 3604(c) is violated if the advertisement suggests to an ordinary reader that a particular familial status is preferred or dispreferred for the housing in question. Ragin at 999.
In addition, direct evidence appears to exist that the newspaper knew the Bauers intended to discriminate on the basis of familial status. See Ragin at 1002. Jan Guider informed the newspaper that Judy Bauer refused to rent the advertised apartment to her because she had children. Guider advised the newspaper that the advertisement was discriminatory and violated the Fair Housing Act. Although the newspaper initially agreed to pull the advertisement, the advertisement ran again one week later. Given the inference which may be drawn from the language of the advertisement and the fact that the newspaper ran the advertisement after it was on notice that the Bauers refused to rent to families with children, genuine issues of material fact exist as to whether the newspaper violated section 3604(c) of the Fair Housing Act. Defendant Sun Publications' motion for summary judgment is denied.
ORDERED: Defendants Steven Bauer, Judy Bauer and the Sun Publications' motions for summary judgment are denied.
GEORGE W. LINDBERG
DATED: SEP 30 1994
© 1992-2004 VersusLaw Inc.