Pittsburgh Press Company v. Pittsburgh Commission On Human Relations 8212 419

• Citation: 413 U.S. 376,93 S.Ct. 2553,37 L.Ed.2d 669
• Decision Date: 21 June 1973
• Docket Number: No. 72,72
• Parties: PITTSBURGH PRESS COMPANY, Petitioner, v. The PITTSBURGH COMMISSION ON HUMAN RELATIONS et al. —419
• Court: U.S. Supreme Court

413 U.S. 376

93 S.Ct. 2553

37 L.Ed.2d 669

PITTSBURGH PRESS COMPANY, Petitioner,

v The PITTSBURGH COMMISSION ON HUMAN RELATIONS et al.

No. 72—419.

Argued March 20, 1973.

Decided June 21, 1973.

Rehearing Denied Oct. 9, 1973.

See 414 U.S. 881, 94 S.Ct. 30.

Syllabus

Following a complaint and hearing, respondent Pittsburgh Commission on Human Relations held that petitioner had violated a city ordinance by using an advertising system in its daily newspaper whereby employment opportunities are published under headings designating job preference by sex. On appeal from affirmance of the Commission's cease-and-desist order, the court below barred petitioner from referring to sex in employment headings, unless the want ads placed beneath them relate to employment opportunities not subject to the ordinance's prohibition against sex discrimination. Petitioner contends that the ordinance contravenes its constitutional rights to freedom of the press. Held: The Pittsburgh ordinance as construed to forbid newspapers to carry sex-designated advertising columns for nonexempt job opportunities does not violate petitioner's First Amendment rights. Pp. 381—391.

(a) The advertisements here, which did not implicate the newspaper's freedon of expression or its financial viability, were 'purely commercial advertising,' which is not protected by the First Amendment. Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, distinguished. Pp. 384 387.

(b) Petitioner's argument against maintaining the Chrestensen distinction between commercial and other speech is unpersuasive in the context of a case like this, where the regulation of the want ads was incidental to and coextensive with the regulation of employment discrimination. Pp. 387—389.

(c) The Commission's order, which was clear and no broader than necessary, is not a prior restraint endangering arguably protected speech. Pp. 389—390.

4. Pa.Cmwlth. 448, 287 A.2d 161, affirmed.

Charles Richard Volk, Pittsburgh, Pa., for petitioner.

Eugene B. Strassburger, III, Pittsburgh, Pa., for respondents The Pittsburgh Commission on Human Relations and others.

Marjorie H. Matson, Pittsburgh, Pa., for respondent The National Organization for Women, Inc.

[amici curiae information on Page 377 intentionally omitted]

Mr. Justice POWELL delivered the opinion of the Court.

The Human Relations Ordinance of the City of Pittsburgh (the Ordinance) has been construed below by the courts of Pennsylvania as forbidding newspapers to carry 'help-wanted' advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. We are called upon to decide whether the Ordinance as so construed violates the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the context in which it arises is critical to its resolution.

I

The Ordinance proscribes discrimination in employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex.¹ In relevant part, § 8 of the Ordinance declares it to be unlawful employment practice, 'except where based upon a bona fide occupational exemption certified by the Commission':

'(a) For any employer to refuse to hire any person or otherwise discriminate against any person with respect to hiring . . . because of . . . sex.

'(e) For any 'employer,' employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or advertisement relating to 'employment' or membership which indicates any discrimination because of . . . sex.

'(j) For any person, whether or not an employer, employment agency or labor organization, to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance . . ..'

The present proceedings were initiated on October 9, 1969, when the National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations (the Commission), which is charged with implementing the Ordinance. The complaint alleged that the Pittsburgh Press Co. (Pittsburgh Press) was violating § 8(j) of the Ordinance by 'allowing employers to place advertisements in the male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or exceptions . . ..' Finding probable cause to believe that Pittsburgh Press was violating the Ordinance, the Commission held a hearing, at which it received evidence and heard argument from the parties and from other interested organizations. Among the exhibits introduced at the hearing were clippings from the help-wanted advertisements carried in the January 4, 1970, edition of the Sunday Pittsburgh Press, arranged by column.² In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency carrying the listing, while others included somewhat more extensive job descriptions.³

On July 23, 1970, the Commission issued a Decision and Order.⁴ It found that during 1969 Pittsburgh Press carried a total of 248,000 help-wanted advertisements; that its practice before October 1969 was to use columns captioned 'Male Help Wanted,' 'Female Help Wanted,' and 'Male-Female Help Wanted'; that it thereafter used the captions 'Jobs—Male Interest,' 'Jobs—Female Interest,' and 'Male-Female'; and that the advertise- ments were placed in the respective columns according to the advertiser's wishes, either volunteered by the advertiser or offered in response to inquiry by Pittsburgh Press.⁵ The Commission first concluded that § 8(e) of the Ordinance forbade employers, employment agencies, and labor organizations to submit advertisements for placement in sex-designated columns. It then held that Pittsburgh Press, in violation of § 8(j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering and rejecting the argument that the Ordinance violated the First Amendment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed in all relevant respects by the Court of Common Pleas.⁶

On appeal in the Commonwealth Court, the scope of the order was narrowed to allow Pittsburgh Press to carry advertisements in sex-designated columns for jobs exempt from the antidiscrimination provisions of the Ordinance. As pointed out in that court's opinion, the Ordinance does not apply to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable, or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception. The modified order bars 'all reference to sex in employment advertising column headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission.' 4 Pa.Cmwlth. 448, 470, 287 A.2d 161, 172 (1972). The Pennsylvania Supreme Court denied review, and we granted certiorari to decide whether, as Pittsburgh Press contends, the modified order violates the First Amendment by restricting its editorial judgment. 409 U.S. 1036, 93 S.Ct. 515, 34 L.Ed.2d 485 (1972).⁷ We affirm.

II

There is little need to reiterate that the freedoms of speech and of the press rank among our most cherished liberties. As Mr. Justice Black put it: 'In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy.' New York Times Co. v. United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 2143, 29 L.Ed.2d 822 (1971) (concurring opinion). The durability of our system of self-government hinges upon the preservation of these freedoms.

'(S)ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern. . . . A free press stands as one of the great interpreters between the government and the people. To allow it to be fettered is to fetter ourselves.' Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).

The repeated emphasis accorded this theme in the decisions of this Court serves to underline the narrowness of the recognized exceptions to the principle that the press may not be regulated by the Government. Our inquiry must therefore be whether the challenged order falls within any of these exceptions.

At the outset, however, it is important to identify with some care the nature of the alleged abridgment. This is not a case in which the challenged law arguably disables the press by undermining its institutional viability. As the press has evolved from an assortment of small printers into a diverse aggregation including large publishing empires as well, the parallel growth and complexity of the economy have led to extensive regulatory legislation from which '(t)he publisher of a newspaper has no special immunity.' Associated Press v. NLRB, 301 U.S. 103, 132, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). Accordingly, this Court has upheld application to the press of the National Labor Relations Act, ibid.; the Fair Labor Standards Act, Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); and the Sherman Antitrust Act, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 89 S.Ct. 927, 22 L.Ed.2d 148 (1969). See also Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Yet the Court has...