Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., a Div. of Gannett Co., Inc.

• Decision Date: 05 September 1991
• Docket Number: No. 90-3176,90-3176
• Citation: 943 F.2d 644
• Parties: , 19 Media L. Rep. 1353 HOUSING OPPORTUNITIES MADE EQUAL, INC., Plaintiff-Appellant, v. The CINCINNATI ENQUIRER, INC., A DIVISION OF GANNETT CO., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 644

943 F.2d 644

60 USLW 2182, 19 Media L. Rep. 1353

HOUSING OPPORTUNITIES MADE EQUAL, INC., Plaintiff-Appellant, v. The CINCINNATI ENQUIRER, INC., A DIVISION OF GANNETT CO INC., Defendant-Appellee.

No. 90-3176.

United States Court of Appeals Sixth Circuit.

Argued Nov. 6, 1990.

Decided Sept. 5, 1991.

Robert B. Newman (argued and briefed), Kircher & Phalen, Cincinnati, Ohio, for Housing Opportunities Made Equal, Inc., plaintiff-appellant.

John C. Greiner, Glenn V. Whitaker (argued and briefed), Graydon, Head & Ritchey, Cincinnati, Ohio, for Cincinnati Enquirer, a Div. of Gannett Co., Inc., defendant-appellee.

Bradford M. Berry (argued), Miller, Cassidy, Larroca and Lewin, Washington, D.C., William H. Jeffress, Jr. (briefed), Miller, Cassidy, Larroca & Lewin, Washington, D.C., for National Fair Housing Alliance and National Neighbors, amicus curiae.

Steven T. Catlett (briefed), Jones, Day, Reavis & Pogue, Columbus, Ohio, for Dispatch Printing Co. amicus curiae.

Floyd Abrams (briefed), Cahill, Gordon and Reindel, New York City, for American Newspaper Publishers Assn, amicus curiae.

Before KEITH, KENNEDY, and SUHRHEINRICH, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiff-appellant, Housing Opportunities Made Equal, Inc. ("HOME"), brought this action against the Cincinnati Enquirer ("defendant") alleging its real estate advertising violated the Fair Housing Act, 42 U.S.C. § 3604(a) and (c) ("FHA"), the Civil Rights Act, 42 U.S.C. § 1982, and the thirteenth amendment to the United States Constitution. The District Court granted defendant's motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6). 731 F.Supp. 801. HOME now appeals that part of the District Court's order dismissing its claim under 42 U.S.C. § 3604(c). HOME asks this Court to decide two issues: (1) whether a single advertisement which features only white models raises a factual question of discrimination under the FHA; and (2) whether the publication of multiple advertisements by unrelated realtors which features only white models, when taken in the aggregate, sends a discriminatory message to the ordinary reader in violation of the FHA. For the following reasons, we AFFIRM the judgment of the District Court.

I.

Plaintiff alleges that over a twenty-year period defendant accepted for publication real estate advertisements which, in almost every instance, pictured only white human models. Less than one percent of the advertisements depicting human models pictured a black model. This percentage contrasts with a population comprised of 34% black persons in the City of Cincinnati, 19% in Hamilton County and 12% in the metropolitan statistical area. HOME does not identify any particular advertisement which allegedly violates section 3604(c). Nor does HOME make any allegations with respect to any particular advertiser who placed advertisements with defendant.

II.

HOME wages a two-pronged attack. First, HOME contends that defendant's publication of any advertisement with all-white models violates the FHA or at least raises a factual issue of whether such advertisement is discriminatory. ¹ Second HOME alleges that a layout of advertisements which depict models virtually all of whom are white even though independently submitted by various real estate organizations or their agents, when taken in the aggregate, sends a discriminatory message in violation of section 3604(c).

A reviewing court shall grant a motion to dismiss for failure to state a claim when it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). An appellate court reviews de novo a trial court's decision regarding a Rule 12(b)(6) motion. Intake Water Co. v. Yellowstone River Compact Comm'n, 769 F.2d 568, 569 (9th Cir.1985), cert. denied, 476 U.S. 1163, 106 S.Ct. 2288, 90 L.Ed.2d 729 (1986). Thus, we must determine whether HOME has failed to allege any set of facts to substantiate the alleged violations of the FHA.

We first consider whether HOME has standing to bring this claim. In conducting this analysis, we need not consider "prudential standing"; Congress intended that standing under the FHA extend to the full limits of Article III. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 508, 112 L.Ed.2d 521 (1990). Thus, HOME can establish standing by alleging a concrete and demonstrable injury, including an injury arising from a "purportedly illegal action [that] increases the resources the group must devote to programs independent of its suit challenging the action." Spann, 899 F.2d at 27.

One of HOME's primary purposes is the elimination of unlawful racially discriminatory housing practices to all persons seeking housing in the Cincinnati metropolitan area. HOME alleges that defendant's discriminatory advertising has deterred potential renters from seeking housing at the advertised complexes. This, in turn, has caused HOME to devote resources to investigate and negate the impact of these advertisements. Allegation of this injury is sufficient to confer standing upon HOME. Id.

A. Individual Photographs Depicting All-White Models

Courts have given a broad reading to the FHA in order to fulfill its remedial purpose. See Trafficante v. Metropolitan Life Ins., Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). To this end, courts have recognized that section 3604(c) applies to all publishing mediums, including newspapers, United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), and have allowed parties to establish a violation of section 3604(c) by proving either an actual intent by a defendant to discriminate or by proving that "[t]o the ordinary reader the natural interpretation of the advertisements published in [the newspaper] ... is that they indicate a racial preference...." Id. at 215. HOME seeks to establish liability based on the "ordinary reader" standard.

Section 3604(c) makes unlawful certain practices associated with the sale or rental of housing:

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604(c). In 1980, the Department of Housing and Urban Development, ("HUD"), the agency charged with implementing the FHA, promulgated a regulation to "provide guidance" to newspapers and others concerning nondiscrimination in advertising in connection with real estate. 24 C.F.R. Part 109. Although applying both to the advertising media and to persons placing advertisements, id. § 109.16(a)(1) and (2), these regulations do not mandate particular actions by these parties. Rather, HUD sought to balance between the "identification of practices which might be viewed as violations of Title VIII and ... the limitation which the First Amendment may impose on mandatory restrictions relating to the publication of advertising.... [T]he regulation describes examples of advertising practices ... which might be indicative of a violation of (or compliance with) Title VIII." 45 Fed.Reg. 57,102 (Aug. 26, 1980). Further, "[w]hile the practices, etc., cited in the regulation are indices of a standard of conduct to evaluate the existence of discrimination in advertising, they are not intended, per se, to establish immutable rules, but to serve as examples of practices, usage, content, etc., which should be complied with (or avoided), whichever the case may be." Id. (emphasis in original). Mandatory language was intentionally avoided.

In keeping with this policy, HUD stated that the selective use of human models in advertisements "may" be discriminatory:

Selective advertising may involve an advertising campaign using human models primarily in media that cater to one racial or national origin segment of the population without a complementary advertising campaign that is directed at other groups.

24 C.F.R. § 109.25(c). In its comments, HUD stated that this section "is intended to preclude selective use of human models in advertising for the purpose of attracting (or discouraging) certain groups covered by Title VIII with respect to certain housing or neighborhoods." 45 Fed.Reg. 57, 105 (Aug. 26, 1980). In another section, HUD stated:

If models are used in display advertising campaigns, the models should be clearly definable as reasonably representing the majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. Models, if used, should portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status, or national origin, and is not for the exclusive use of one such group.

24 C.F.R. § 109.30(b). In explaining this section, HUD noted:

Civil rights groups commented that models used should reflect, in numbers, the exact percentage of various covered groups in the population, a suggestion which is clearly unworkable. The term "reasonably representing" is intended to assure that models will convey a message of general inclusiveness of persons covered by Title VIII, not literal display of each minority group.

45 Fed.Reg. 57,105 (Aug. 26, 1980).

Several conclusions can be drawn from the language of the FHA and HUD's regulations. On the one hand, the statute and regulations make abundantly clear that an advertisement can discriminate against an individual based on any criteria specified in the FHA. Such discrimination may occur through words or...