*1 396 A.2d 1187 Pennsylvania Human Pennsylvania, COMMONWEALTH Commission, Appellant, v. Relations COMPANY, Appellee. PITTSBURGH PRESS Pennsylvania. Sept. 1978. Argued Decided Jan. *2 Kahn, Counsel, Gen. Pa. Human Relations Com-

Sanford mission, Commission, John E. Pa. Benjes, Human Relations Mirin, Harrisburg, Robert S. for appellant. Jr., Lewis, Shoop,

Robert H. Jane A. Thorp, Reed & Armstrong, Pittsburgh, appellee. for *3 EAGEN, J., O’BRIEN, ROBERTS,

Before and C. POM- EROY, NIX, MANDERINO, LARSEN, JJ.

OPINION MANDERINO, Justice.

This is from the order of the appeal Commonwealth Court reversing the order of the Human Pennsylvania Relations (Commission), declaring Commission and unconstitutional of portion 5(g) Section of The Human Pennsylvania Act, Relations 955(g). 5(g) prohibits P.S. the Section § publication of advertisements for employment expressing race, color, creed, sex, the religious ancestry, age, or national Comm., Pittsburgh Press Co. v. origin of the advertiser. Commission, Human Relations 218, 31 Pa.Cmwlth. 376 A.2d 263 (1977).

The surrounding circumstances this are as follows. appeal 1975, On March the charged Pittsburgh Commission the (Press) with a and Company “maintainpng] pattern practice abetting the of an unlawful aiding doing 5(e) act” in violation of of The Penn- discriminatory sylvania Human Relations Act. to the Commis- According sion, 5(e) the the Act by publishing Press violated Section unlawful alleged “situation wanted” advertisements to be under the 5(g) because the ads identified advertiser’s sex, race, or religion, age. circulation Pittsburgh newspaper general Press is a area. The

throughout greater Pittsburgh metropolitan the “situation classified advertise- wanted” section of the Press’ ments provides seeking employment a vehicle for persons themselves, describe and the kind of job qualifications, their pub- are The Press employment they seeking. accepts lishes the advertisers. exactly these ads as submitted 27, 1975, from which investigation

On June an following the Commission that there cause to probable determined was credit the in the referred to allegations complaint contained above, requiring Commission issued a final order Press to cease wanted” publishing and desist from “situation advertisements, the contents of which are prohibited 5(g). appeal,

On the Commonwealth reversed the Com- order, mission’s final and ruled that Sub-section was granted unconstitutional. We for petition Commission’s allowance of appeal, and this followed. appeal

The Pennsylvania Act, Human Relations Act of Octo ber 27,1955, P.L. seq., as amended 43 et P.S. § §§ establishes it as . public of this Commonwealth policy

foster of all individuals in accordance race, color, with their fullest of their capacities regardless creed, religious use of *4 ancestry, handicap disability, guide dogs user, sex, because of blindness or age, national origin, and to obtain and safeguard their to hold discrimination, without such to assure employment equal opportunities to all individuals and to safeguard their rights at of places public accommodation and to color, secure race, of reli- housing regardless creed, gious sex, or use of ancestry, handicap disability, guide because of dogs blindness of the user or national origin.” of the Act makes

To further this public policy, Section practices unlawful. discriminatory employment certain in 955(a) Among things, 5(g), other through (j). P.S. § discrimination Act makes it unlawful or seeking employment publish individual any “[f]or or to be which published any specifies cause advertisement creed, race, color, religious manner his any expresses express- manner ancestry, age origin, any or national or color, race, a religious es limitation or as to the preference creed, origin prospec- sex or national of ancestry, age, any tive employer.” 955(g). 43 P.S. § 5(e) also makes it unlawful Section employ- an employer, whether or not any person, “[f]or aid, abet, employe, ment labor or agency, organization incite, by act declared compel doing any coerce discriminatory practice, this section to be an unlawful by accepting presenting The Commission found that “situation which included refer- wanted” advertisements 5(g), ences to the criteria declared unlawful the unlawful employment had “aided and abetted” section, Press was therefore practice proscribed by that 5(e). found to be in violation of Section that the advertise- recognized Commonwealth Court ments which complaint formed basis the Commission’s 5(g): violated clearly

“An found type indication of the advertisement can be the Commission to violate ascertained Pan- Hearing from the set forth in the specific examples el’s of fact. These were drawn from findings examples which included the Press’ stipulated exhibits ‘Situation June 1975 to Sunday, Thursday, Wanted’ columns from June 1975: with Bache- again

‘COLLEGE GRAD—Born Christian Degree yrs. marketing mgmt. lor’s and seven sales work business or or- experience seeking with Christian ganization . ..’ work, cleaning.’

‘White woman—desires office day *5 Li- ‘Parolee—White needs to be released. employment engineer censed steam boiler and . . . for career in Age looking Pittsburgh,

‘Salesman— start immediately, years experience sales . . ‘What can I do for Recent you? college grad, good old, looking, in Business Adminis- twenty-five years B.S. tration, seeks level entry management position.’ mature, accounting, bookkeeping, manage- office ‘Man— ment, desires position these or related fields.’ It is obvious at a that of glance contents these advertisements are in of contravention the letter of Sec- tion 5(g).”

(Footnotes omitted.) 31 Pa.Cmwlth. at 376 A.2d at The Press did not contend otherwise before the Common- Court, wealth nor does it so contend here. argues, The Press however, that 5(g) Section unlawfully infringes on First Amendment rights. We with the agree Commonwealth Court that the advertiser’s as rights, guaranteed the First Amendment to Constitution, the United States are improp- erly restricted prohibition of 5(g). We there- fore affirm the order of the Commonwealth Court.

The Press did not contend before the Commonwealth Court that the state not may prohibit em discriminatory ployment practices. however, It argued, that the restriction on freedom of expression contained in 5(g) is not necessary promote that legitimate objective. state We agree with the Press that the Commission has not shown the prior restraint of is necessary to promote this legitimate state interest. The Commission argued that this case is controlled by Pittsburgh Press Co. v. Pittsburgh Relations, Commission on Human 93 S.Ct. (1973) (Press I). L.Ed.2d 669 The Press argues that in light more recent pronouncements Court, United States Press I longer is no viable law. We however, need not decide point, this because unlike the situation in Press what the Commission seeks to do in this case is to restrict the expression itself, of the advertiser activity

rather to restrict the unlawful than legitimate regulation While it held that discrimination. *6 incidentally unlawful effect an advertiser’s activity may an Press I does not stand for to freedom of right expression, imposed restraint be on prior may the that proposition pro- even that does not speech though speech commercial an transaction. pose illegal course, has, said

The Court of Supreme United States advertising it to commercial permissible regulate that is false, or mis “[advertising deceptive, some that is ways: Bar restraint” Bates v. State is subject ... leading to Arizona, 350, 383, 2691, 2708, of 97 53 L.Ed.2d S.Ct. v. Con (1977); Virginia Pharmacy Virginia Board 810, 835 Council, sumer 748, 1817, 48 L.Ed.2d 346 425 96 S.Ct. U.S. concerning is commercial (1976); purely advertising as Bates v. Bar State are illegal, transactions that themselves Arizona, I, supra. Similarly, of Press reasonable supra; manner, time, be the and may placed upon place, restrictions Board, advertising Virginia Pharmacy supra; special and of on regard advertising restrictions be allowable with to may Broadcasting cf. Co. media, Capital electronic broadcast the Mitchell, nom. Capi v. aff’d sub F.Supp. (D.C.1971), 333 582 General, v. Broadcasting Acting Attorney tal Co. 405 U.S. (1972). 472 L.Ed.2d however, goes imposed by 5(g), restriction to his or her freely express to the advertiser’s directly abilities, or educa- job qualifications, personal experience, I, In Press placement tional the history. employer’s sex con- “Help-wanted” containing preference designations in the illegal hiring stituted an act of sex discrimination I, said in Press result, As a the personnel. Amendment might interest which be served “[a]ny First and which ordinary proposal an by advertising interest might outweigh governmental sup- arguably the com- altogether is absent when porting regulation itself and the restriction on activity mercial on economic is incidental to a valid limitation advertising at at activity.” 93 S.Ct. 37 L.Ed.2d at In to the advertising illegal, contrast sex- employer’s based, discrimination Press in the instant case the advertisers are prospective employees proposing commercial transactions —their own are employment—which terms, not its illegal. applies the Act By employers, those who aid abet employers practice employment In discrimination. Press I Act clearly proscribed underlying activity based discrimination the em —sex ployer by providing sex-designated Help-wanted col —and advertising section, umns in its classified directly aided practice and abetted such sex employers’ based Indeed, employment discrimination. the Press did not chal *7 lenge the acts in I. In illegality underlying present case, “situation wanted” ads no proposed illegal transactions, they simply prospective ask that employers hire the respective individual advertisers. em prospective prohibited use of an ployees’ employment criteria in adver tisement cannot be said to aid an who reasonably employer might be to utilize such predisposed forbidden criteria. race, such Knowledge sex, color, forbidden age, criteria — etc., obtainable readily by employer by sched simply —is uling interview, a pre-employment or by requesting submis sion of an employment Any resume. effect that enforce ment of 5(g) might Section have on reducing employment made illegal 5(e) discrimination is too specu thus lative to justify 5(g)’s direct restriction on the adver tiser’s freedom of expression.

As was stated United States Associates, 85, Linmark Willingboro, Inc. v. 431 92 6, 1614, 1618, fn. 97 S.Ct. fn. 52 L.Ed.2d 161 fn. 6 (1977):

“After Virginia Virginia Bd. Consumer Pharmacy [v. Council, (1976)] 48 L.Ed.2d it is clear that commercial cannot be be- speech banned cause of belief impact an unsubstantiated that its is detrimental.” Linmark,

In the record failed to support township’s assumption proscribing the placement of “for sale” signs in front of homes would township reduce public aware- ness of sales realty thereby decrease public concern over Likewise, case, in the selling. instant the record fails to establish the statutory assumption contained in 5(g) that because of of supposed the revelation illegal employment criteria contained in the prohibited ads, “situation wanted” employers likely would be more to base their hiring decisions on such criteria.

Order of the Commonwealth Court is affirmed. POMEROY, J., former did not participate the decision of this case.

ROBERTS, J., filed a concurring opinion.

NIX, J., filed a dissenting opinion.

ROBERTS, Justice, concurring. view,

In my 5(e) of the Act,1 Human Relations 955(e) (1964),2 P.S. insofar as it authorizes § the Pennsylva- nia Human Relations Commission’s order directing the Pitts- burgh Press to cease and desist publication of “situation wanted” advertisements, unconstitutional under article section 7 of the Pennsylvania Constitution.3 As Mr. Justice observed: Stewart

“If government can dictate the layout of a newspaper’s advertising what is pages today, there to it from prevent dictating the news tomorrow? pages *8 27, 1955, 744, 1. Act of October P.L. as amended. 5(e) any aid, abet, person

2. makes § it unlawful ... “[f]or incite, compel doing any by or coerce the act declared this section discriminatory practice to be an unlawful . . . .” Pa.Const., I, 7, provides: art. § 3. press every may person shall printing “[T]he be free to who proceedings Legislature any undertake to examine the government, branch of no law shall ever be made to restrain the thoughts opinions thereof. The free communication of and man, rights every may freely one of the invaluable citizen speak, print any subject, being responsible write and on for the ” liberty. abuse’ of that . . .

323 guarantee constitutional of a free is more press than [T]he . . is a clear command that precatory. govern- [I]t ment must never be allowed to its editorial lay heavy hand on any in this newspaper country.” Pittsburgh Press v. on Company Pittsburgh Commission Relations, Human 376, 403-4, 2553, 93 S.Ct. 2568 (1973) (Stewart, J., J., dissenting, joined by Douglas, William Blackmun, J.). specially joined generally, See Dana, Goldman Theatres v. 83, (1961) 405 Pa. 173 A.2d 59 (Pa.Const. I, restraints). prior art. bars Common- § wealth the order of the properly Pennsylva- Court reversed join nia Human Relations I therefore Commission. affirmance. Court’s

NIX, Justice, dissenting. Commission, v. Pittsburgh Press Co. Human Relations

In (1973) (Press I), 37 L.Ed.2d 669 the United States Court held an order Supreme prohibiting a from newspaper publishing sex-designated advertisements by employers offering employment not to be violative of the first amendment of the federal constitution. a ma- Today, of this has jority prohibition Court found the of situations race, color, wanted identifying advertisements religious creed, age and sex of the applicant under circumstances prohibited Act, 27,1955, the Human Relations Act of Oct. amended, et seq. (Supp.1978-79), P.L. as P.S. § impermissible to be under the first amendment. To reach result, Press I an this startling given has majority interpretation narrow and has read unwarrantedly into the recent decision the United Supreme States commercial area speech unjustified implications. The ma- in its zeal jority protection to extend the to be given commercial speech, this totally ignores Commonwealth’s strong g. See e. egalitarian commitment to an society. Pa.Const. Art. I I therefore must express my most § disagreement. vehement

In the United Court avoided the States protection level of speech should be accorded by noting: *9 may

Whatever the merits of this contention be in other contexts, it is in this case. Discrimination in unpersuasive employment activity, is not commercial it is only illegal under the We have no activity Ordinance. doubt that a newspaper could be forbid- constitutionally den to publish a want ad a sale of narcotics or proposing soliciting prostitutes. Nor would the result be different if the nature of the transaction were by placement indicated under columns captioned “Narcotics for Sale” and “Prosti- tutes Wanted” rather than stated within the four corners of the advertisement. overt,

The in this we illegality case be less but see may no difference in here. discrimination in principle Sex has been declared nonexempt employment illegal . . . at at 2560 (emphasis original) (citations omitted) Act, Human Pennsylvania supra, Relations announced

unequivocally that the of discrimination in practice policy race, color, employment creed, reason of religious ances- try, age, sex or national is violative of the origin public policy of this Commonwealth. 5 of the Act specifies practices those which have been declared in an effort illegal to eradicate the 5(g) evils of discrimination. prohib- its an seeking individual from employment attempting influence the decision by supplying information factors or relating qualities those which have been pro- 5(e) scribed such a a making judgment. prohibits third from party aiding abetting transmittal of the prohibited information for the purpose influencing the It is employment decision. conceded that the ads which form the basis of this lawsuit were in violation of Sections (e) and therefore under the law of illegal this Commonwealth. the fact that it Notwithstanding has been conceded that the publishing of these ads was com- Act, mercial under the activity majority terms seeks to support its result that the advertiser’s by finding *10 guaranteed expression as the freedom of rights, by amend- constitution, ment the federal have been cur- improperly 5(g). tailed the mandate of Section While that a state recognizing may prohibit discriminato- the ry employment practices, majority argues that re- the striction of of expression freedom accomplished by Section “is not to necessary promote legitimate that state the 1189) objective.” ignores This (Maj. op. p. position rationale of Press I. holding case, In supporting that the United Supreme States Court sanctioned the clearly right restriction the advertiser’s to freedom of expression to regulation effectuate a of an unlawful legitimate activity. Moreover, in its latest decisions the United States Supreme Court has to reaffirmed the restrain commercial adver- that is to the public welfare. Bates v. State tising inimical of Arizona, Bar 97 433 U.S. 53 S.Ct. L.Ed.2d 810 (1977); Virginia v. Pharmacy Virginia Bd. Consumer Coun- cil, S.Ct. 48 L.Ed.2d 346 (1976). Amendment,

The First as we construe it not today, does prohibit the from insuring State that the stream of com- mercial flow cleanly information as as (cita- well freely, tion omitted)

Also, there is no claim the that transactions proposed the forbidden advertisements are themselves in any way.

Va. Bd. v. Pharmacy Virginia Council, Consumer 771-72, (citations at at omitted). the transactions proposed

Here the forbidden advertise- are in ments themselves The illegal. ads the encourage the to make employer employment decision based the upon considerations. The prohibited speech re- being is a strained solicitation for simply discriminatory hiring. to the majority disguise seeks illegality characteriz- as content of these ads a ing expression mere abilities, applicants “job qualifications, personal experience, history.” gloss not educational This does dismiss the commu- sought be qualifications fact that controlling deci- in the are not concerns legitimate nicated encouraging discrimi- purpose sion and are for solely a to be simply request It is not hiring decisions. natory contends, pollute rather it seeks majority as the hired considerations. prohibited by introducing decision hiring its content distinguishable by speech only Commercial has recognized and the United States should not be withdrawn protections the first amendment a mundane commercial proposes from it because it simply im- Here, however, being the restraint is not transaction. of the message, because of the commercial character posed *11 it proposes. but rather the transaction of the a distinction in the nature perceives The majority I confess that encountered in Press I. transactions here and that distinction. In both comprehend that I am unable to discriminatory was the condemned illegal activity instances to the In Press the was directed regulation employment. appeal, In this employer. conduct of the prospective Both employe being regulated. of the is prospective conduct end, directed to the same i. e. discriminato- regulations were Further, impinge upon both did not ry hiring. regulations necessary free information to make flow of information restrained only decision. The com- proposed was information not relevant to the lawfully mercial transaction. we are Press Í and the instant

Finally, appeal, both publish concerned with the right newspaper There, derived greater right information. no obviously of a expressions potential to communicate the newspaper poten- than its to disseminate the needs of a employe view that the em- I am therefore of the employer. tial under the first rights expression of freedom of ploye’s abridged legitimate not been the state’s amendment have in an to eradicate one power attempt exercise of its police society today. and elusive evils in our pervasive the most