Ragin v. New York Times Co.
| Decision Date | 23 January 1991 |
| Docket Number | No. 226,D,226 |
| Citation | 923 F.2d 995 |
| Parties | , 18 Media L. Rep. 1666 Luther M. RAGIN, Jr., Deborah Fish Ragin, Renaye B. Cuyler, Jerome F. Cuyler and Open Housing Center, Inc., Plaintiffs-Appellees, v. The NEW YORK TIMES COMPANY, Defendant-Appellant. ocket 90-7389. |
| Court | U.S. Court of Appeals — Second Circuit |
Deborah R. Linfield, New York City (Solomon B. Watson IV, Cynthia H. Augustine, George Freeman, Kenneth A. Richieri, The New York Times Co., Legal Dept., New York City, of counsel), for defendant-appellant.
Elsie A. Crum, New York City (Kathleen M. Comfrey, Karen M. Crupi, Shearman & Sterling, New York City, of counsel), for plaintiffs-appellees.
William H. Jeffress, Jr., New York City (David G. Webbert, Niki Kuckes, Bradford M. Berry, Miller, Cassidy, Larroca & Lewin, Washington, D.C., of counsel), for amicus curiae National Fair Housing Alliance.
Floyd Abrams, New York City (Amy Glickman, Cahill Gordon & Reindel, Richard J. Tofel, New York City, Lawrence J. Aldrich, Arlington, Va., Alberto Ibarguen, Melville, N.Y., Joseph P. Thornton, David Hiller, Laura Handman, Lankenau & Bickford, New York City, John D. Kutzer, Albany, N.Y., Rene P. Milam, Washington, D.C Before OAKES, Chief Judge, LUMBARD and WINTER, Circuit Judges.
of counsel), for amici curiae Dow Jones & Co., Inc., Gannett Co., Inc., Newsday, Inc., New York Daily News, VV Pub. Corp., New York Newspaper Publishers Ass'n, Inc., American Newspaper Publishers Ass'n.
The New York Times Company ("the Times") appeals under 28 U.S.C. Sec. 1292(b) from the denial of its motion under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint in the instant matter. Briefly stated, the complaint alleges that, during the past twenty years, the Times has published real estate advertisements "featuring thousands of human models of whom virtually none were black," and that the few blacks depicted rarely represented potential home buyers or renters. On those rare occasions when blacks were depicted as consumers of housing, moreover, the housing in question was in predominantly black areas. Plaintiffs contend that by publishing these advertisements the Times has violated the Fair Housing Act of 1968, 42 U.S.C. Secs. 3601 et seq. (1988), as amended. Because Section 3604(c) validly prohibits the publication of real estate ads that "indicate[ ] any preference ... based on race," and the complaint can fairly be read to allege that the Times has published such ads, we affirm the denial of the motion to dismiss.
The Times is the publisher of The New York Times, a nationally known newspaper. The individual plaintiffs are black persons who have been looking for housing in the New York metropolitan area. Plaintiff Open Housing Center, Inc., is a not-for-profit New York corporation, one of the primary goals of which is to eliminate racially discriminatory housing practices.
On January 12, 1989, plaintiffs commenced this action under the Fair Housing Act, 42 U.S.C. Sec. 3604(a) and (c), the Civil Rights Act of 1866, 42 U.S.C. Sec. 1982 (1988), the Civil Rights Act of 1870, 42 U.S.C. Sec. 1981 (1988), and the Thirteenth Amendment. Plaintiffs sought a declaratory judgment, injunctive relief, and compensatory and punitive damages. A pertinent excerpt from the complaint states:
During the twenty year period since the Act was passed ... advertisements appeared in the Sunday Times featuring thousands of human models of whom virtually none were black.... [W]hile many of the white human models depict representative or potential home owners or renters, the few blacks represented are usually depicted as building maintenance employees, doormen, entertainers, sports figures, small children or cartoon characters....
* * * * * *
[T]he Times has continued to ... publish numerous advertisements that picture all-white models in advertisements for realty located in predominantly white buildings, developments, communities or neighborhoods. It has also ... published a few advertisements that picture all black models in advertisements for realty located in predominantly black buildings, developments, communities or neighborhoods.
The use of human models in advertising personalizes the advertisements and encourages consumers to identify themselves in a positive way with the models and housing featured. In real estate advertisements, human models often represent actual or potential purchasers or renters, or the type of potential purchasers or renters that the real estate owner has targeted as desirable occupants.
Therefore, the repeated and continued depiction of white human models and the virtual absence of any black human models ... indicates a preference on the basis of race....
The real estate display advertisements featured by the Times indicate a preference based on race through the use of human models reflecting the predominant race of the advertised building, development or community.
The Times moved under Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief may be granted. Judge Haight dismissed the claims based on the Thirteenth Amendment and Sections 1981 and 1982. See Ragin v. The New York Times Co., 726 F.Supp. 953, 965 (S.D.N.Y.1989). He also dismissed the claim based on Section 3604(a). See id. at 956. Plaintiffs have not sought leave to appeal from the dismissal of these claims.
With respect to the claim under Section 3604(c), Judge Haight denied the motion to dismiss. Responding to the Times's arguments, he first concluded that the pattern of ads alleged in the complaint, if proven at trial, would be sufficient to support a finding that the Times had published ads that indicated a racial preference. See id. at 956-62. Second, Judge Haight concluded that the First Amendment provides no protection for such illegal commercial speech, and that requiring the Times to monitor the ads it receives would not impose an unconstitutional burden on the press. See id. at 962-64. Finally, assuming for purposes of his decision that the constitutional vagueness doctrine was applicable to civil actions involving commercial speech, Judge Haight concluded that the statute gave the Times constitutionally adequate notice of the prohibited conduct. See id. at 964-65.
The Times's appeal is pursuant to Fed.R.Civ.P. 54(b) and 28 U.S.C. Sec. 1292(b).
Like any party moving to dismiss a complaint under Fed.R.Civ.P. 12(b)(6), the Times must carry the burden of showing that "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Given the breadth of the facts alleged in the complaint, most of the Times's statutory and constitutional arguments amount to an assertion of immunity from Section 3604(c). We reject those arguments.
Section 3604(c) states in pertinent part that it is unlawful:
To ... publish ... any ... advertisement, with respect to the sale or rental of a dwelling that indicates any preference ... based on race....
Beginning our analysis with the statutory language, the first critical word is the verb "indicates." Giving that word its common meaning, we read the statute to be violated if an ad for housing suggests to an ordinary reader that a particular race is preferred or dispreferred for the housing in question. This standard has been adopted by the Fourth, see United States v. Hunter, 459 F.2d 205, 215 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), and District of Columbia Circuits, see Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.Cir.1990), and we also adopt it.
The second critical word is the noun "preference." The Times asks us to read that word to preclude liability for a publisher where the ad in question is not facially discriminatory and the publisher has no other evidence of a discriminatory intent. We share that general view but with important qualifications.
The Times's conception of what kinds of ads might be deemed by a trier of fact as facially suggesting to an ordinary reader a racial preference is intolerably narrow. At oral argument, suggested as examples of such a facial message were real estate advertisements depicting burning crosses or swastikas. We do not limit the statute--not to say trivialize it--by construing it to outlaw only the most provocative and offensive expressions of racism or statements indicating an outright refusal to sell or rent to persons of a particular race. Congress used broad language in Section 3604(c), and there is no cogent reason to narrow the meaning of that language. Ordinary readers may reasonably infer a racial message from advertisements that are more subtle than the hypothetical swastika or burning cross, and we read the word "preference" to describe any ad that would discourage an ordinary reader of a particular race from answering it.
Moreover, the statute prohibits all ads that indicate a racial preference to an ordinary reader whatever the advertiser's intent. To be sure, the intent of the creator of an ad may be relevant to a factual determination of the message conveyed, see Saunders v. General Services Corp., 659 F.Supp. 1042, 1059 (E.D.Va.1987), but the touchstone is nevertheless the message. If, for example, an advertiser seeking to reach a group of largely white consumers were to create advertisements that discouraged potential black consumers from responding, the statute would bar the ads, whether or not the creator of the ad had a subjective racial intent.
Keeping these general, and fairly obvious, propositions in mind, we turn to the allegations of the complaint. Those allegations focus upon the use of models of particular races in real estate advertisements. A threshold question is whether Section 3604(c) reaches the use of models as a medium for the expression...
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