431 U.S. 85 (1977), 70-357, Linmark Associates, Inc. v. Township of Willingboro

Docket Nº:No. 70-357
Citation:431 U.S. 85, 97 S.Ct. 1614, 52 L.Ed.2d 155
Party Name:Linmark Associates, Inc. v. Township of Willingboro
Case Date:May 02, 1977
Court:United States Supreme Court
 
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Page 85

431 U.S. 85 (1977)

97 S.Ct. 1614, 52 L.Ed.2d 155

Linmark Associates, Inc.

v.

Township of Willingboro

No. 70-357

United States Supreme Court

May 2, 1977

Argued March 2, 1977

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

A township ordinance prohibiting the posting of real estate "For Sale" and "Sold" signs for the purpose of stemming what the township perceived as the flight of white homeowners from a racially integrated community held to violate the First Amendment. Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748. Pp. 91-98.

(a) The ordinance cannot be sustained on the ground that it restricts only one method of communication while leaving ample alternative communication channels open. The alternatives (primarily newspaper advertising and listing with real estate agents, which involve more cost and less autonomy than signs, are less likely to reach persons not deliberately seeking sales information, and may be less effective) are far from satisfactory. And the ordinance is not genuinely concerned with the place (front lawns) or the manner (signs) of the speech, but rather proscribes particular types of signs based on their content because the township fears their "primary" effect -- that they will cause those receiving the information to act upon it. Pp. 93-94.

(b) Moreover, despite the importance of achieving the asserted goal of promoting stable, integrated housing, the ordinance cannot be upheld on the ground that it promotes an important governmental objective, since it does not appear that the ordinance [97 S.Ct. 1615] was needed to achieve that objective and, in any event, the First Amendment disables the township from achieving that objective by restricting the free flow of truthful commercial information. Pp. 94-97.

535 F.2d 786, reversed.

MARSHALL, J., delivered the opinion of the Court, in which all other Members joined except REHNQUIST, J., who took no part in the consideration or decision of the case.

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MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

This case presents the question whether the First Amendment permits a municipality to prohibit the posting of "For Sale" or "Sold" signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community.

Petitioner Linmark Associates, a New Jersey corporation, owned a piece of realty in the township of Willingboro, N.J. Petitioner decided to sell its property, and on March 26, 1974, listed it with petitioner Mellman, a real estate agent. To attract interest in the property, petitioners desired to place a "For Sale" sign on the lawn. Willingboro, however, narrowly limits the types of signs that can be erected on land in the township. Although prior to March, 1974, "For Sale" and "Sold" signs were permitted subject to certain restrictions not at issue here, on March 18, 1974, the Township Council enacted Ordinance 1974, repealing the statutory authorization for such signs on all but model homes. Petitioners brought this action against both the township and the building inspector charged with enforcing the ban on "For Sale" signs, seeking declaratory and injunctive relief.1 The District

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Court granted a declaration of unconstitutionality, but a divided Court of Appeals reversed, 535 F.2d 786 (CA3 1976). We granted certiorari, 429 U.S. 938 (1976), and reverse the judgment of the Court of Appeals.

I

The township of Willingboro is a residential community located in southern New Jersey near Fort Dix, McGuire Air Force Base, and offices of several national corporations. The township was developed as a middle-income community by Levitt & Sons, beginning in the late 1950's. It is served by over 80 real estate agents.

During the 1960's Willingboro underwent rapid growth. The white population increased by almost 350%, and the nonwhite population rose from 60 to over 5,000, or from .005% of the population to 11.7%. As of the 1970 census, almost 44,000 people resided in Willingboro. In the 1970's, however, the population growth slowed; from 1970 to 1973, the latest year for which figures were available at the time of trial, Willingboro's population rose by only 3%. More significantly, the white population actually declined by almost 2,000 in this interval, a drop of over 5%, while the nonwhite population grew by more than 3,000, an increase of approximately 60%. By 1973, nonwhites constituted 18.2% of the township's population.

At the trial in this case, respondents presented testimony from two real estate agents, two members of the Township Council, and three members of the Human Relations Commission, all of whom agreed that a major cause in the decline in

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the white population was "panic selling" -- that is, selling by whites who feared that the township was becoming all black, and that property values would decline. One real estate agent estimated that the reason 80% of the sellers gave for their decision to sell was that "the whole town was for sale, and they didn't want to be caught in any bind." App. in No. 75-1448 (CA3), pp. 219a-220a. Respondents' witnesses also testified that, in their view, "For Sale" and "Sold" signs were a major catalyst of these fears.

William Kearns, the Mayor of Willingboro during the year preceding enactment of the ordinance and a member of the Council when the ordinance was enacted, testified concerning the events leading up to its passage. Id. at 183a-186a. According to Kearns, beginning at least in 1973, the community became concerned about the changing population. At a town meeting in February, 1973, called to discuss "Willingboro, to sell or not to sell," a member of the community suggested that real estate signs be banned. The suggestion received the overwhelming support of those attending the meeting. Kearns brought the proposal to the Township Council, which requested the Township Solicitor to study it. The Council also contacted National Neighbors, a nationwide organization promoting integrated housing, and obtained the names of other communities that had prohibited "For Sale" signs. After obtaining a favorable report from Shaker Heights, Ohio, on its ordinance, and after receiving an endorsement of the proposed ban from the Willingboro Human Relations Commission, the Council began drafting legislation.

Rather than following its usual procedure of conducting a public hearing only after the proposed law had received preliminary Council approval, the Council scheduled two public meetings on Ordinance 5-1974. The first took place in February, 1974, before the initial Council vote, and the second in March, 1974, after the vote. At the conclusion of the second hearing, the ordinance was approved unanimously.

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The transcripts of the Council hearings were introduced into evidence at trial. They reveal that, at the hearings, the Council received important information bearing on the need for and likely impact of the ordinance. With respect to the justification for the ordinance, the Council was told (a) that a study of Willingboro home sales in 1973 revealed that the turnover rate was roughly 11%, App. in No. 71448 (CA3), p. 89a;2 (b) that, in February, 1974 -- a typical month -- 230 "For Sale" signs were posted among the 11,000 houses in the community, id. at 94a, 37a;3 and (c) that the Willingboro Tax Assessor had reported that, "by and large, the increased value of Willingboro properties was way ahead of . . . comparable communities." Id. at 106a. With respect to the projected effect of the ordinance, several real estate agents reported that 30%-35% of their purchaser-clients came to them because they had seen one of the agent's "For Sale" or "Sold" signs, id. at 33a, 47a, 49a, 7a,4 and one agent estimated, based on his experience in a neighboring community that had already banned signs, that selling realty without signs takes twice as long as selling with signs, id. at 42a.

The transcripts of the Council hearings also reveal that the hearings provided useful barometers of public sentiment toward the proposed ordinance. The Council was [97 S.Ct. 1617] told, for

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example, that surveys in two areas of the township found overwhelming support for the law, id. at 29a, 84a.5 In addition, at least at the second meeting, the citizens who were not real estate agents and who spoke favored the proposed ordinance by a sizable margin. Interestingly, however, at both meetings, those defending the ordinance focused primarily on aesthetic considerations and on the effect of signs -- and transiency generally -- on property values. Few speakers directly referred to the changing racial composition of Willingboro in supporting the proposed law.

Although the ordinance had been in effect for nine months prior to trial, no statistical data were presented concerning its impact. Respondents' witnesses all agreed, however, that the number of persons selling or considering selling their houses because of racial fears had declined sharply. But several of these witnesses also testified that the number of sales in Willingboro had not declined since the ordinance was enacted. Moreover, respondents' real estate agent witnesses both stated that their business had increased by 25% since the ordinance was enacted, id. at 164a, 226a, and one of these agents reported that the racial composition of his clientele remained unchanged, id. at 160a.

The District Court did not make specific findings of fact. In the course of its opinion, however, the court stated that Willingboro

is, to a large extent, a transient community, partly due to its proximity to the military facility at Fort Dix and in part due to the numerous transfers of real estate.

The court also stated that there was "no evidence" that whites were leaving Willingboro en masse as "For Sale" signs appeared, but "merely an indication...

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