United States v. Hunter

• Citation: 459 F.2d 205
• Decision Date: 27 April 1972
• Docket Number: No. 71-1643.,71-1643.
• Parties: UNITED STATES of America, Appellee, v. Bill R. HUNTER, d/b/a The Courier, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

459 F.2d 205 (1972)

UNITED STATES of America, Appellee, v. Bill R. HUNTER, d/b/a The Courier, Appellant.

No. 71-1643.

United States Court of Appeals, Fourth Circuit.

Argued November 29, 1971.

Decided April 27, 1972.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Arthur B. Hanson, Washington, D. C. (W. Frank Stickle, Jr., Ralph N. Albright, Jr., Washington, D. C., on brief), for appellant.

Frank E. Schwelb, Atty., Dept. of Justice (David L. Norman, Asst. Atty. Gen., Walter W. Barnett, Robert J. Wiggers, Attys., Dept. of Justice, and George Beall, U. S. Atty., on brief), for appellee.

Before SOBELOFF, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.

SOBELOFF, Senior Circuit Judge:

This case presents the first occasion for a federal court of appeals to consider certain important issues in the application and enforcement of Title VIII (Fair Housing) of the Civil Rights Act of 1968.

Appellant Bill R. Hunter is editor and publisher of The Courier, a weekly newspaper with a circulation of 29,000, chiefly in Prince George's County, Maryland. The Courier carries classified advertisements prepared by persons offering dwellings for sale or rent. In January and again in June, 1970, The Courier published a classified advertisement tendering for rent a furnished apartment in what was denominated a "white home."¹

Contending that such advertisements violated § 804(c) of the Civil Rights Act of 1968, 42 U.S.C. § 3604(c),² the Attorney General instituted the present action against Hunter to obtain an order enjoining The Courier's further publication of advertisements violative of § 3604(c). The Attorney General also prayed for "such additional relief as the interests of justice may require."

Defending against the suit, Hunter disputed the Attorney General's interpretation of § 3604(c). The publisher argued that the section was not intended to apply to a newspaper which published such advertisements; that it would be unconstitutional if so applied; and that, in any event, the statute was not violated by an advertisement specifying that the apartment was located in a "white home."

After a trial, the District Judge denied the Government's request for an injunction, 324 F.Supp. 529, but did grant it a favorable judgment declaring that § 3604(c) was intended to apply to newspapers; was constitutional in its ban on discriminatory advertisements, including those published by newspapers; and was contravened by the advertisements published in The Courier. From these adverse rulings Hunter appeals.

I

Appellant raises essentially the same arguments he unsuccessfully presented to the District Court. Perceiving no more merit in appellant's contentions than did the judge below, we affirm the District Court's declaratory judgment.

A. Section 3604(c) Prohibits the Publication of Discriminatory Housing Advertisements by Newspapers

Hunter first takes the position that § 3604(c) was not intended to prevent newspapers from publishing classified advertisements indicating a racial or other statutorily proscribed preference in the sale or rental of a dwelling. We reject this assertion, for we find Congress clearly intended that very prohibition.

Legislative intent is first to be gathered from the plain meaning of the words of the statute. It is presumed that statutory language is used in its ordinary sense, with the meaning commonly attributed to it, unless the contrary clearly appears. Caminetti v. United States, 242 U.S. 470, 485-486, 37 S.Ct. 192, 61 L.Ed. 442 (1917). The section here under examination provides on its face no exemptions in favor of newspapers. Rather, it uses precisely the language which would lead the ordinary reader to conclude that newspapers are to be brought within its purview. The section provides it shall be unlawful "to make, print, publish, or cause to be made, printed, or published" any advertisement prohibited by the Act. In the context of classified real estate advertising, landlords and brokers "cause" advertisements to be printed or published and generally newspapers "print" and "publish" them. Since each phrase in a statute must, if possible, be given effect, United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed. 615 (1955), both landlords and newspapers are within the section's reach.

Hunter attempts to draw an analogy to Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577 (N.D.Cal. 1970) (appeal pending, No. 26,666, 9th Cir.), in which it was held that § 704(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, does not include newspapers in its proscription of discriminatory employment advertisements. Brush, however, is inapposite, because the section there involved is fundamentally different from our § 3604(c) in that the 1964 Act specifically lists the persons regulated: "an employer, labor organization, or employment agency." The Brush court held that a newspaper was none of these and that, under the maxim expressio unius est exclusio alterius, it did not fall within the Act's restriction. Moreover, Brush relied on a clear statement in the legislative history of the 1964 Act that newspapers were not required to exercise any control or supervision over the advertisements they published. In contrast to the section construed in Brush, no restriction in scope appears on the face of § 3604(c). Unlike other sections of the Fair Housing title,³ § 3604(c) does not provide any specific exemptions or designate the persons covered, but rather, as the court below noted, applies on its face to "anyone" printing or publishing illegal advertisements. Brush is, therefore, not persuasive in interpreting the instant section.

Congressional intent disclosed by the meager legislative history concerning § 3604(c) does not contradict our view of the unambiguous language chosen by the draftsmen of the section.⁴ Indeed there is some evidence that the publication of discriminatory classified advertisements in newspapers was precisely one of the evils the Act was designed to correct. See 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). (George Meany's testimony, complaining of discriminatory housing advertisements in newspapers.)

We therefore agree with the District Court that the congressional prohibition of discriminatory advertisements was intended to apply to newspapers as well as any other publishing medium.

B. The Constitution Does Not Prohibit the Application of § 3604(c) to Newspapers

Hunter next asks us to overturn § 3604(c) as violative of the First and Fifth Amendments of the United States Constitution.

1. Freedom of the Press

Noting that § 3604(c) limits advertising an intent to discriminate in the sale or rental of a dwelling only in a commercial context and not in relation to the dissemination of ideas, the District Court held that the statute does not contravene the First Amendment, and hence that a court might constitutionally enjoin a newspaper's printing of classified advertisements which violate the Act.⁵

The court's conclusion is supported by an unbroken line of authority from the Supreme Court down which distinguishes between the expression of ideas protected by the First Amendment and commercial advertising in a business context.⁶ It is now well settled that, while "freedom of communicating information and disseminating opinion" enjoys the fullest protection of the First Amendment, "the Constitution imposes no such restraint on government as respects purely commercial advertising." Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262 (1942). See Breard v. City of Alexandria, 341 U.S. 622, 641-645, 71 S.Ct. 920, 95 L.Ed. 1233 (1951); New York State Broadcasters Ass'n, Inc. v. United States, 414 F.2d 990, 998-999 (2nd Cir. 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970); Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082, 1099-1103 (1968), cert. denied, sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (D.D.C. 1971), (three-judge court), aff'd, sub nom. Capital Broadcasting Co. v. Kleindienst, Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972).

Relying on this difference, district courts have uniformly held that § 3604(e), banning blockbusting practices, does not contravene the First Amendment. United States v. Mitchell, 327 F.Supp. 476, 486 (N.D.Ga.1971); United States v. Bob Lawrence Realty, Inc., 313 F.Supp. 870, 872 (N.D.Ga.1970); United States v. Mintzes, 304 F.Supp. 1305, 1312 (D.Md.1969).

The publisher's response to the cases distinguishing between commercial advertising and other forms of expression is that the distinction is "meaningless in the context of the newspaper publishing business" because the revenue newspapers derive from advertising makes possible the publication of the rest of the paper. But it has been held that a newspaper will not be insulated from the otherwise valid regulation of economic activity merely because it also engages in constitutionally protected dissemination of ideas. Lorain Journal Co. v. United States, 342 U.S. 143, 155-156, 72 S.Ct. 181, 96 L.Ed. 162 (1951); Associated Press v. United States, 326 U.S. 1, 6-7, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945). While it is true, as Hunter contends in his brief, that "a newspaper can be silenced as easily by cutting off its source of funds, as it can be by enjoining its publication," no such threat is raised by the Act's prohibition of racially discriminatory advertisements. Nondiscriminatory advertisements are still permitted. Since the Act also bars private publication of discriminatory advertisements, an advertiser has no incentive to abandon his regular use of newspapers to publicize his offer to sell or rent. We therefore doubt that the...