New York Times Co. v. City of New York Commission on Human Rights

• Decision Date: 10 February 1977
• Citation: 361 N.E.2d 963,41 N.Y.2d 345,393 N.Y.S.2d 312
• Parties: , 361 N.E.2d 963, 14 Empl. Prac. Dec. P 7609, 2 Media L. Rep. 1435 In the Matter of NEW YORK TIMES COMPANY, Respondent, v. CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS, Appellant, and American Committee on Africa et al., Intervenors-Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 312

393 N.Y.S.2d 312

41 N.Y.2d 345, 361 N.E.2d 963, 14

Empl. Prac. Dec. P 7609,

2 Media L. Rep. 1435

In the Matter of NEW YORK TIMES COMPANY, Respondent, v. CITY OF NEW YORK COMMISSION ON HUMAN RIGHTS, Appellant and American Committee on Africa et al., Intervenors-Appellants.

Court of Appeals of New York.

Feb. 10, 1977.

W. Bernard Richland, Corp. Counsel, New York City (Ellen Kramer Sawyer, Brooklyn, and L. Kevin Sheridan, New York City, of counsel), for appellant.

Floyd Abrams and James J. Foster, New York City, for respondent.

Douglas P. Wachholz, Ramsey Clark, T. Michael Peay, Washington, D.C., and Peter Weiss, New York City, for intervenors-appellants.

JASEN, Judge.

We hold that advertisements of employment opportunities located within the Republic of South Africa which merely refer to that country as the situs of the employment and which do not recite, on the surface, any discriminatory conditions do not express discrimination within the meaning of the New York City antidiscrimination laws. We also hold that a newspaper which publishes such employment advertisements does not thereby aid and abet the invidious discrimination practiced within the Republic of South Africa under color of national law and policy.

Between August, 1970 and December, 1973, the New York Times published at least 19 separate advertisements of employment opportunities available in the Republic of South Africa. Nearly half sought to employ persons for managerial positions in private industry. The remainder advertised openings on the faculties of various South African universities. The advertisements ranged in size from a short, six-line, one column notice to a full-sized, four column, large-print box display. Some recited lengthy job descriptions and employment-related qualifications; others did not. None of the advertisements contained references to race or to racially based discrimination. In fact, two advertisements for international corporations seeking general managers for South African subsidiaries referred to the corporations, perhaps incongruously, as equal opportunity employers. All of the employment opportunities were located within the Republic of South Africa. Interested applicants were to write to either a New York Times box number or to specified addresses in New York, Washington, London or in South Africa. In one instance, prospective employees were to arrange for a personal interview to take place in New York City by calling a listed New York City telephone number. ¹

The American Committee on Africa wrote to the Advertising Acceptability Department of the New York Times on several occasions, complaining that 'employment in the Republic of South Africa is subject to discrimination on the basis of race by law.' The Times continued to publish employme advertising for South African positions in reliance on its policy, as expressed in a newspaper editorial, that the Times 'should keep its advertising columns open to all points of view, no matter how strongly it disapproves of them.' (The Freedom of Advertising, New York Times editorial, Dec. 28, 1961.)

On October 12, 1972, the American Committee on Africa, two other groups and one individual filed a complaint with the New York City Commission on Human Rights. As subsequently amended, the complaint alleged that 'as a matter of law there exists in the Republic of South Africa systemic discrimination in employment based on race, color or national origin', that the purpose and effect of these laws is to deny black and nonwhite workers equal access to jobs and to deny them equality of working conditions, and that advertisements for employment in South Africa express this discrimination. (Emphasis added.) ² The commission found probable cause to believe that the Times in publishing the advertisements aided in an unlawful discriminatory practice and that the Times knew or should have known of the South African policy of apartheid and its effects on employment practices. The Times moved to dismiss the complaint on the grounds that the commission was without jurisdiction to intrude on matters of foreign policy and that the commission could not enter an order which would violate the Times' First Amendment rights. The motion was denied. A petition for a writ of prohibition based on similar contentions was dismissed by Supreme Court, New York County. (Matter of New York Times Co. v. City of New York Comm. on Human Rights, 76 Misc.2d 17, 349 N.Y.S.2d 940.)

At a commission hearing, copies of various South African statutes were introduced into evidence. Former South African attorneys, one white and one black, testified as to the nature and effect of these laws. The import of this testimony was that it is the official policy of the South African government to classify its people into three separate categories: white, Bantu (native African) and colored. With rare exceptions, only whites are permitted to hold supervisory or skilled positions, to attend college and to live in preferred areas. Whites are given preferential treatment in all facets of public and private accommodations; whereas, nonwhites may hold only menial jobs at poverty level wages, are required to live in restricted areas with substandard housing and are forced to utilize inferior public accommodations and facilities. The complainants introduced testimony of American blacks that the discriminatory, apartheid policy of the South African government is a matter of common knowledge in the black community. Blacks would expect to be discriminated against in seeking employment in South Africa and, even if tendered employment, would not move to South Africa because of the oppressive living and working conditions to which nonwhites are subjected. This evidence was not disputed by the Times. Instead, the Times introduced evidence that many other Nations in Europe, Asia and Africa discriminate on the basis of race, religion or sex.

At the close of the proceedings, the commission found that it was not necessary to make any findings of fact. It concluded, from the undisputed evidence, that the extensive system of racial segregation and discrimination employed in the Republic of South Africa is well known and that the term 'South Africa' 'has come to have a denotative meaning, in the common understanding, other than its geographical reference --i.e., the principle of white supremacy'. The commission rejected the Times' First Amendment and foreign policy arguments and ordered the Times to cease and desist from printing advertisements which seek employees for employment located in the Republic of South Africa.

Special Term granted the Times' petition for review and set aside the commission's order. The court ruled that the commission, in effect, had questioned the employment methods and practices of a foreign government and the commission's jurisdiction did not extend to activities conducted within other countries. (79 Misc.2d 1046, 362 N.Y.S.2d 321.) The Appellate Division affirmed the judgment of Special Term, holding that the 'language of the advertisements is not such as to indicate an intent on the part of petitioner to participate in a program of discrimination.' (49 A.D.2d 851, 852, 374 N.Y.S.2d 9.) The Appellate Division granted the commission permission to appeal to our court, certifying the existence of questions of law which the Court of Appeals ought to review. We would affirm the order of the Appellate Division but on other grounds.

Before proceeding to a discussion of the significant issues actually presented by this case, it is useful to point up the issues that are not presented and on which we express no view. It is not contended that the New York City antidiscrimination laws are an invalid exercise of the municipal police power. Nor is it contended that the application of such laws to international transactions would be an unconstitutional municipal regulation of foreign commerce. Similarly, we have not been presented with an argument that extraterritorial effect should be given to the laws of the Republic of South Africa on the ground that the legality of terms and conditions of employment should be measured by the law of the country of employment. Hence, our review is limited to a determination of whether there is support, as a matter of law, for the commission's finding that the Times violated the antidiscrimination laws and whether such finding would be precluded by either principles relating to foreign policy or by principles relating to freedom of the press.

At the threshold, it is also necessary to discuss the relevant standard of review. The complainants and the commission contend that we are limited to a narrow scope of review and the dissent apparently accepts that view. We disagree. The findings of the New York City Commission on Human Rights are conclusive, if supported by sufficient evidence on the record considered as a whole. (Administrative Code of City of New York, § B1--9.0.) Where the commission has made findings of fact, the sole question before the reviewing court is whether there is sufficient evidence in the record to support the administrative findings. Matter of Pace Coll. v. Commission on Human Rights of City of N.Y., 38 N.Y.2d 28, 35, 377 N.Y.S.2d 471, 475, 339 N.E.2d 880, 882.) However, the commission, in this proceeding, did not make any findings of fact. Rather, the commission's determination was based on conclusions of law drawn from an undisputed set of facts. Indeed, the complainants' complaint was itself predicated upon matters of law. Under these circumstances, it would be both wrong and inappropriate to apply the substantial evidence test. The issue is simply whether the commission properly analyzed the law and we hold that it did not.

The New York City antidiscrimination laws prohibit employers or employment agencies from printing or causing to be printed 'any statement, advertisement or publication' which 'expresses, directly or indirectly, any...