United States v. Hunter

• Decision Date: 13 April 1971
• Docket Number: Civ. No. 70-816-T.
• Parties: UNITED STATES of America v. Bill R. HUNTER, d/b/a The Courier.
• Court: U.S. District Court — District of Maryland

324 F. Supp. 529

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

Civ. No. 70-816-T.

United States District Court, D. Maryland.

April 13, 1971.

Frank E. Schwelb and Robert J. Wiggers, Attys., Dept. of Justice, Washington, D. C., and George Beall, U. S. Atty., Baltimore, Md., for plaintiff.

Arthur B. Hanson and W. Frank Stickle, Jr., Rockville, Md., and Ralph N. Albright, Jr., Washington, D. C., for defendant.

THOMSEN, District Judge.

This is the first action brought by the Government against the publisher of a newspaper under the "Fair Housing" provisions of the Civil Rights Act of 1968, 42 U.S.C.A. § 3601 et seq., to enjoin an alleged violation of subsection (c) of § 3604, which provides:

"§ 3604. Discrimination in the sale or rental of housing

"As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful—

"* * *

"(c) 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, or national origin, or an intention to make any such preference, limitation, or discrimination.

"* * *"

The only exemption referred to by the parties, the so-called "Mrs. Murphy" exemption, contained in § 3603(b) (2), provides:

"(b) Nothing in section 3604 of this title (other than subsection (c)) shall apply to—

"* * *

"(2) rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence."

Under § 3613 the Attorney General may bring a civil action for an injunction and other appropriate relief whenever he has reasonable cause to believe either "that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights granted by this subchapter", or "that any group of persons has been denied any of the rights granted by this subchapter and such denial raises an issue of general public importance". The Attorney General is proceeding in this case under both alternatives. A court should not review the Attorney General's finding of reasonable cause, but before granting relief should determine that such a pattern or practice of resistance exists or that there has been such a denial of rights as would justify the granting of the relief prayed. United States v. Mitchell, 313 F.Supp. 299, 300 (N.D.Ga.1970); United States v. Building & Construction Trades Council, 271 F.Supp. 447, 453 (E.D.Mo.1966).

The Government's case is based upon two advertisements which appeared in defendant's newspaper, correspondence before suit, and an editorial published after this suit was filed. There is little or no dispute about the facts.

Defendant contends: that § 3604(c) does not apply to newspapers disseminating real estate advertisements; that such application would violate the First Amendment, and, in view of the "Mrs. Murphy" exemption, the Fifth Amendment; that the ads involved do not "indicate a preference in violation of § 3604(c)"; and that no pattern, practice, or denial of rights sufficient to justify the relief requested has been shown.

Findings of Fact

Defendant, Bill R. Hunter, a resident of Maryland, is publisher and editor of a weekly newspaper, The Courier, published in Prince George's County, Maryland, with a circulation of some 29,000 copies per week, mostly in that county. The Courier carries classified advertisements for the sale or rental of real estate. The advertisers supply the wording of the ads and pay the newspaper for their printing and publication. It is the policy of defendant to refuse to accept an ad if, in his judgment, it is either offensive or deceptive, or the advertiser is not acting in good faith and in good taste.

On January 8, 1970, The Courier carried the following advertisement:

"FOR RENT—Furnished basement apartment. In private white home. Call JO 3-5493."

On January 26, 1970, Frank E. Schwelb, Chief, Housing Section, Civil Rights Division, Department of Justice, sent a letter to defendant, expressing the view that such ads violate the Fair Housing Act of 1968 because they indicate a racial preference, and suggesting that defendant instruct his employees to cease accepting such ads.

Defendant returned the letter with a note on the last page, stating:

"The advertisement to which you refer does not specify that the apartment will be rented only to white occupants. It is the policy of this newspaper to accept no advertising which in any way is racially offensive, however, the statement that the home in which the apartment is located is occupied by white people should not in our opinion be offensive to anyone. We have given no further instructions to our employees.

/s/ Bill R. Hunter Publisher and Editor"

On February 7, 1970, the Chief of the Housing Section again wrote defendant, setting forth in greater detail why the Civil Rights Division considers that such ads violate the statute.

On March 19, 1970, he sent defendant another letter, stating: "Since you have been unwilling to provide any assurance that you will discontinue the acceptance of advertisements which we believe to be in violation of the law, we shall have no alternative, should further advertisements of this kind appear, to recommend that suit be instituted in the appropriate Court to assure compliance with the Fair Housing Act."

Defendant received the second and third letters, but did not reply. He did, however, instruct his staff to refer any such ads to him before they were published. Due to the failure of an employee to follow that instruction, the following ad was published in The Courier on June 18, 1970, without defendant's having seen it:

"FURNISHED APARTMENT, well located, clean, quiet. In white home. Gentlemen only. $17.50 a week. Call JO 3-5493."

Both ads were placed by an elderly, retired man named Crawford, who lived in southeast Washington.

This suit was filed on July 14, 1970. In its next issue The Courier carried a news article stating: "When questioned about his motive in indicating a white home in his ads, Crawford said, `it's really a kindness to colored people. There's no use making them spend money to call here or come here when I'm not going to rent to them. I don't legally have to rent to anyone I don't want to'."

The same issue carried a long and not intemperate editorial, entitled "A Free Press", stating, inter alia: "We remain steadfast in our belief in the freedom of the press and the right of every homeowner to decide who shall or shall not live in the house with him."

The editorial also said: "The Courier has never, and will never, publish an advertisement or news item for the purpose of being racist, or in any way race baiting." That has in fact been the policy of the paper, which has published one or more editorials criticizing the actions of white racists.

The editorial also noted that "metropolitan daily newspapers have been publishing the same type ads for some time that the Justice Department is suing The Courier to discontinue." That is true. On the day after this suit was filed the Washington Post carried a story of the filing, and in the same edition carried six ads similar to those which appeared in The Courier, including the following:

"CONN. AVE.—Wht. pvt. home. Apt. for employed, quiet lady, nonsmoker. Nr. bus. 362-2275."

"NE.—Nice rm., colored home. Refined, settled lady pref. 544-7724 aft. 6 p. m."

"NE.—Lovely room in quiet colored home. Settled lady. 832-9063, aft. 6."

Four such advertisements were carried in the Washington Star and three or four in the Washington Daily News on that date. Thereafter, similar ads have been carried by the Washington daily papers, some since this case was heard. Counsel for the Government told the Court that another Department has been negotiating with these large newspapers; but no action has been taken against them.

Discussion

I

On its face, § 3604(c) applies to anyone who makes, prints or publishes, or causes to be made, printed or published any notice, statement or advertisement with respect to the rental of a dwelling¹ indicating any of the preferences, limitations or discriminations listed in that section. There is no exemption for newspapers, although an exemption is provided for religious organizations and private clubs in other sections of the Act.

In Brush v. San Francisco Newspaper Printing Co., 315 F.Supp. 577 (N.D.Cal. 1970), appeal pending, relied on by defendant, the Court was dealing with § 704(b) of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e-3(b), which specifically states: "It shall be an unlawful employment practice for an employer, labor organization, or employment agency to print or publish" discriminatory advertisements relating to their own employment functions. Moreover, in Brush, the legislative history showed that the House Judiciary Committee Report stated: "The prohibitions of this section do not require newspapers and other publications to exercise any control or supervision over, or to do any screening of the advertisements or notices published by them". See 315 F.Supp. at 582.

The legislative history of the 1968 Act, involved in this case, contains no suggestion that newspapers are to be exempted. The only reference to newspapers was a statement by Senator Ellender, an opponent of the bill, who said in the course of debate:

"* * * Apparently, under this provision any newspaper publisher who accepted an advertisement indicating a preference by the owner of a certain race or religion would be in violation of the law. Apparently, freedom of speech and press guaranteed in the Bill of Rights is to be abolished with the inauguration of this open housing amendment." Cong.Rec., Sen., p. 3134, Feb. 15, 1968.

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