Linmark Associates, Inc., and William Mellman v. The Township of Willingboro and Gerald Daly

that, Miller, permitted to show under 1972); Wright & Federal the cir- Cir. case, particularly Civil of this & Procedure: cumstances those § Practice of over one million judgment dol- in the first sentence of this dissent Where noted involved, this surely principle this he paragraph, should would have reason- lars ably not be overlooked. considered these misstatements insignificant. omissions to be material favorable to Finally, because Ca- join I sey, including respects, Judge the evidence described in In all other Mar- dissent characteristically opinion, sentence of this and the infer- is’ excellent al- first view though, my above, ences from such evidence could be under very stated necessary in his defense to the not be pertinent reach damage contention negligence, he is liable for do not issue at pages 781-784 and the prejudg- Casey can be held to have believe been ment interest issue at pages 784-785 of law, negligent as matter determined the majority opinion. pages majority opinion 775- stage at this

777. The evidence Casey issue is that read negligence form in draft

proxy statement failed to view, my evidence,

correct it. In alone,

standing is not a sufficient basis for Casey, who neither a

holding lawyer nor director, by summary inside liable proce- ASSOCIATES, INC., LINMARK and Wil- Casey dure. I believe was entitled to a Mellman, Plaintiffs-Appellees, liam by a fact finder after trial decision on the issues needed to factual determine whether The TOWNSHIP OF WILLINGBORO position in his reasonable director Daly, Defendants-Appellants. to, Gerald objecting in not negligent referring counsel, or Litton’s to Monroe’s the possible 75-1448. No. omissions, including failure adequately to States Court of Appeals, United interest, reveal conflicts of in the proxy Circuit. Third materials. proof Casey

There is was con- Argued Oct. sciously alleged aware misstatements April 28, 1976. Decided and omissions or of materiality. their question critical is whether he should have

noticed and corrected defects. But the quite

defects themselves are technical. The relating alleged

defect agreement hinges

vote reading language of the

proxy connoting materials as a legally bind-

ing obligation to vote for the merger on the

part of Litton and Monroe. Similarly, the majority opinion

thrust of the with respect alleged

to the disclosure of the conflicts of

interest is that Casey should have realized the relevant facts were presented sufficiently prominent form and that the

disclosure therefore inadequate. As a

non-lawyer director, and an outside Casey

might easily be excused for not having his finely

antennae so tuned to semantic and event,

formal “defects.” he should Gottlieb,

Myron Kessler, H. Tutek and Gottlieb, Bordentown, J.,N. for defendants- appellants. Hauch, Jr., Archer,

John P. Greiner & Haddonfield, Read, J., plaintiffs-ap- N. pellees. support cannot find in the record for GIBBONS, Judge, MAR- Circuit Before conclusions, legal court’s we reverse. district Judge Court of Customs

KEY,* Chief WEIS, Circuit Appeals and Patent Background Historical Judge. development

Residential chiefly the late 1950’sis attributed OF THE COURT OPINION Sons, Inc., which built moderate Levitt MARKEY, of Cus- Judge, Chief Court homes for income middle families. ly priced Appeals. Patent toms and complete, now Development, virtually pro Associates, (Linmark), Inc. through the whereby “part system” Linmark ceeded Camden, corporation of New Jersey (parts) areas were sequentially distinct New ten premises of residential In the Jersey early stages, and owner Levitt developed. re Drive, Township minority group to sell houses to fused Sherwood The Jersey (Willingboro) Jersey New and New Willingboro, Supreme members. Court (Mellman) housing Re- racially of Mellman based enjoined Mellman dis William Sons, Cinnaminson, Levitt Inc. v. Lin- and Divi Jersey, New of crimination. altors Discrimination in State De broker, challenged Against estate sion real mark’s Education, of 31 N.J. a constitutionality Willingboro partment of dism., 177, appeal and A.2d the erection of “For Sale” which barred 4 L.Ed.2d 1515 properties. on residential “Sold” charged ordinance as uncon- complaint Thereafter, a Human Relations Commis it deprives plaintiffs of because stitutional formed of development and sion speech free the First of under right their integration with full racial Amendments, deprives and Fourteenth encouraged. joined Township actively property of their without due plaintiffs Neighbors, organiza a nationwide National in violation the Fifth and of law of process integrated housing and promoting ad tion Amendments, discriminates Fourteenth what can be vising on done overcome and plaintiffs proc- denies them due discriminatory a housing practices. As re protection the Four- equal and under ess sult, approach close was achieved a Amendment, their plaintiffs denies teenth sought ideal housing by fair-minded citi freely acquire right proper- and alienate zens, by mandated Housing the federal Fair and Amend- the Ninth Fourteenth ty under Act, impelled by U.S.C. and § our ments, public no relationship bears Willingboro became a racial Constitution. welfare, health, safety derogation and is in each open community, with of ten ly power, is an of its enab- police abuse of having all racial and ethnic groups “parts” right denies Mellman his ling legislation, with no section could living together, section, business violation of the Ninth do lawful a white black be denominated Amendment and is over- and Fourteenth section. Be section, Spanish-speaking or a trial, nonjury the district After a popula broad. the nonwhite tween abridge- risen, the ordinance to by court held be an 60% and had with tion increased First speech Amendment’s free racially segregated ment of formation of a out “the infringement on guarantee “ghetto,” from about 12% about area or right During Because we population.1 fundamental travel.” the total those of 18% * designation. Sitting proportion populations of suburban the black steady at since 1950. Id. at remained has 5% stable, integrated pat- 1. racial The instance segregation within central cities Racial Twenty rare. Years After Brown— terns is the norm and has been the in- been has Housing, Report Opportunity in of the Equal crease, persons the number of black while Rights, Commission United States Dec., Civil neighborhoods declined. Id. at 124. has mixed p. 9. The success persons have moved to black suburban When pattern achieving integration as its a continued neighborhoods have neighborhoods, those fre- population increased non-white 60% become black Id. at quently enclaves. experience compared wherein with the national average population throughout the Delaware the total within years, [sic] same Valley had been a decrease of about area. 45,000, there population and an in- white 2,000 in the they did not feel that we had a But if nonwhite 3,000 population. in the crease where white home owners in the situation community were moving, not because Willingboro population Historically, they were transferred or not to move to due to the nearness transient been or a larger home, home smaller for other and the nature installations military reasons, economic but be- moving were realtors, employment. Eighty-two people’s what sensed cause was the reaction Multiple Listing Service members community, but that we would (MLS), competing were County Burlington Willingboro hitting beyond up wind Willingboro. These of houses sale minority group population point conditions, uniformity in home con pocket turn it into an isolated that would for a number of struction,I possible made minority groups Burlington County. signs in a limited and “Sold” “For Sale” longer an integrated reflect It would impression many to create area community, ghetto. but would become a leaving community. A people developed among home psychology fear preservation for the of the well- Concern member and former owners, Council of the community character integrated Kearns, Jr. characterized in his J. Mayor W. growing fear to counteract desire as follows: testimony trial produced public sentiment psychology * * * the concern that signs I think “For Sale” and on resi- against “Sold” generally expressed people was that property. Responding to that was senti- dential community expressing were ment, township the a de- investigated the council the their homes and trial, to sell move to other of cities. May- sire other At the approach Burlington County of because what stated the results of the investiga- areas Kearn or was a lack of stability Heights, sensed or a they experience into Shaker Ohio’s tion in the large community, turnover and to have been: large resulting this turnover was indicated that at the outset there They influx of minority groups a substantial strong hostility to their ordinance awas community beyond what could be into the of the realtors. part But on the the community without itself sustained having year, worked with it for a to after ghetto county. within the turning into half, that they they and a found a year compliance, and good it was

have very successfully. working level, of us in the official most I think Township council consulted the Will- citizens who were con- and most Human Relations ingboro Commission for to, it that I talked felt that about cerned recommendations. The and re- its views irrational reaction on part was an the this was described the trial Mrs. sponse people, dealing and we were many of Gladfelter, a founder-member of the Com- problem that we psychological with a had chairperson and 1973-74: mission way give people to find some feel- to Yes, we specifically I think were recom- stability they so would not over- ing of mending at this time that council move to situation. particular to a react possi- an ordinance or other consider anyone was concerned I don’t think prohibit signs sale way to and sold ble minority groups moving of people with township. throughout reaching per- or a 20 community into the of was describ- cent, range even somewhere of Commission The concern minority grouping. by Commission Al- percent to 25 trial member ed at the properly was as generally felt this W. Porter follows: They exander Willingboro dwellings having Typical were built in a lots 60-70 foot street constructed street, line, frontage. distance from the the same sell;3 panic to like owner wished about selling; Commission would to I think signs remaining is as for six up which harmonious “Sold” about see a requiring violation of an ordinance choose be without the kind it would weeks term, (in in five days response I use that if removal their pressures, great cited the dif people induce sell when in members would which Council which sell; “forest” enforcement); want about the ficulty don’t think fact thing impression the ordinance was signs, created that’s something wrong the com was with at. “there directed per consequent departure munity,” responding and react- Individuals might otherwise remained. sons who or, signs, one ing a rash and representatives of real estate Realtors another, and another and lead to spokesmen against were the main brokers another. ordinance, describing signs as the concern the that’s Commis- I think in their needed business. re “tools” Some trying address. sion questions injected race in their argu altors effect of “For concern Public ordinance. ments One realtor “Sold” had wide- become Sale” whether the questioned council funds to had an 1972 and became issue spread the ordinance in litigation. defend membership on the Town- elections The Council’s normal ship policy At the end the second public Council. hear ordinance, public meeting ing, hold one after an which took was to the form of prior had been drafted to a and before its amendment ordinance and respect posting adoption. signs, With how- “For Sale” and prohibited “Sold” ferment, ever, public property residential years two than after homes, two hearings, unanimously public adopted conducted one model Council Council, 1974) Township Mayor and one after (February Kalik abstain before 18, 1974) drafting ordi- she considered her status (March because More than 50 citizens raised a conflict of herein. realtor interest. The nance hearings, during public plus their views the more than of both those presented minutes exclusively ques- meeting adopted the which hours devoted the four of the Council signs on residential at the property. tion of the and which Council mem regarding phone vote, were stated the reasons their Complaints explained for bers calls, (P-3) and house-to-house solicitations and letters transcribed made an exhibit were inquiring whether the by realtors home- trial.4 at the sell, signs would be offered the of and solicitation to the these in nature 3. The effect “I think agreed they joint exhibit. It’s employed by marauding do blockbusters subtleties accurately reflect what was said at the meet- stemming difficulty of their actions and the subject. However, the ings on the truthful- point “tipping” the reached —after before admitted, the statements is not but ness process is irreversible —are all the de- which were made is.” fact Note, “Blockbusting,” in 59 Geo.L.J. scribed appear to rest substantial- The dissent See, also, Comment, (1970). “Blockbust- 170 acceptance ly of the truth of selected state- Legislative Response ing: and Judicial Real public hearings. at the made same ments Excesses,” 22 De Paul Dealers’ L.Rev. Estate decision below. of the is true “Blockbusting: Statutory (1973); A Novel 818 course, only can Exhibit P-3 stand for the Of Increasingly Problem,” Approach Serious to an statements, mostly argumentative fact (1971); 538 Soc.Prob. State & Colum.J.L. cross-examination, subject none and Comment, in are collected “The decisions court references, Except three minor Ex- made. Constitutionality Municipal Ordinance Pro- day ignored at the two trial P-3 was hibit ‘Sold,’ Sale,’ ‘Open’ Signs hibiting ‘For or herein. Blockbusting,” Prevent St.L.M.L.J. 686 Ass’n., Industry So- As said Construction Petaluma, City City of 522 F.2d noma “super legislature” (9th 1975) are not a we Cir. initially by P-3 was submitted “weigh reap- 4. Exhibit and are not authorized and Township with a motion. ignored connection At praise considered or the factors opening, plaintiffs’ body.” legislative counsel stated: trial Mellman, plaintiff rested. Defendant Proceedings Below plaintiffs for failure of for dismissal moved four months after the ordi- filed Suit was their burden. Decision was re- carry witness, Mellman, One adopted. nance served, again the motion was never but His direct testi- side. plaintiff’s testified mentioned, perhaps because defendant had in the statement mony indicated, motion, consisted prior plain- to its sign nonavailability of a slowed the sale rely intended to on “evidentia- counsel tiffs’ presented by defense.” property co-plaintiff ry proofs the residential Inc.; Associates, that he had had Linmark witnesses, presented seven Defendant Linmark, as well as from from complaints Heath, Kearns and Human Re- Councilmen homeowners, regarding (unnamed) Commission members Gladfelter and lations furnishing buyers saying, Porter, Human Relations Commission slowness Rev. Ernest Lyght, Shaw put up?”; and that “Why you don’t Chairman agents estate Evans and Connolly. real inquiries of his re- of 30% had average signs many years. over Mell- sulted from brevity Because of its laudable and its the ordinance caused understanding not state of our did to an decision man relation herein, opinion of district court specific loss of actual or sales or him margin.5 presented After the cross-examination commissions. ordinance, parties, describing precisely be no doubt that this is 5. After There can town, positions parties, Willingboro of the and the desired Town the remainder herein in its result However, opinion adopting of the district court this ordinance. Council entirety key reads: between distinction Gary Gary, is that in the stimulus and Indiana Gary, city of Indiana An ordinance easily response were observable. As “For Sale”, display prohibited the of “For appeared, disappeared whites Sale” “Sold”, signs in similar residential areas or city Willingboro, en masse. Yet in there upheld where it as reasonable was clear- Rather, patterns. evidence of similar proliferation exists ly apparent of the “For merely an indication that its residents tendency provoke there in a resulted Sale” large Realty, that there be a influx selling. City are concerned panic Barrick Inc. v. groups moving minority Indiana, in to the F.Supp. (N.D.Ind. town with Gary, 1973), being proper- effect a reduction in (7th 1974). resultant F.2d the ty ues, Cir. affirmed declining property This fear of val- values. stated: The Court however, very although property real to public potential benefit “The from the ordi- Willingboro, is not and outweighs cannot be the owners concern abridgement the harm to nance far realtors of this court when it results in an signs. who wish to use ‘for sale’ homeowners rights. of constitutional expense delay might additional decision, spite of its the Seventh Circuit in having to use alternative means result from very recognized that “The advertising F.Supp. Barrick is minimal.” 354 is censorial. First Amendment the ordinance interests are therefore Thus, ques- as well as commercial similar to the one in an ordinance by this ordinance.” 491 F.2d 161 at affected has been held to be a reasonable tion here However, power. police of the exercise Supreme has held that Court reasonable history Gary The ordinance shows that its of the upon regulations commercial communications resegregation. to halt purview of response fall within the First presence do not Amendment. passed in to the of “It was Chrestensen, Valentine v. 316 ‘For Sale’ in some white numerous neighborhoods, 920, 52, (1942). 86 L.Ed. 1262 62 S.Ct. U.S. which caused whites to move however, situation, with which replace the court is The presented to and blacks them. There en masse nothing in here results less than cen- in the record that is evidence some real es- by denying property very sorship owners of placed signs (not a who these in- tate brokers cluding by they may actively important which communi- any plaintiffs) encouraged means property their is for by unlawfully urging others that sale. resegregation cate to whites to testimony plaintiff neighbors light from Mellman that of quickly had before black sell and lower thirty percent inquiries property approximately of to his values.” 491 F.2d at signs being reasoning result of “For Sale” are a of the office posted With due deference residences, court, apparent it is that the on the facts before the on court Barrick there, brings appears about a serious denial of a that the true thrust of these ordinance property express right freely reasonably promote is to a racial to balance owners ordinances in properly, a racial in to others desire to sell violation imbalance order to or more existing perpetuate racial lines. First Amendment.

793 censored, the message purpose and of effect Issues ordinance, and its to the public relation upon to decide whether called We are an the police power. as exercise of welfare striking in down court erred district on proc To defeat ordinance due violative of the First (1) ordinance grounds pro under other constitutional ess guarantee speech, of free Amendment visions, however, Linmark and Mellman to infringement right of trav- as an (2) establish, facie, prima must least el. is arbitrary so ordinance unreasonable and infringe to amount to impermissible Proof of guarantees. ment constitutional Burden Gold Hempstead, 590, v. 82 S.Ct. blatt 369 U.S. bodies, legislative state of Acts 987, (1960); 8 L.Ed.2d 130 New Orleans presumed be in har municipal, are Service, Orleans, 281 Inc. v. New Public Erb v. the Constitution. See mony with 682, 449, (1930). 50 S.Ct. 74 1115 L.Ed. U.S. 584, 819, 44 Morasch, 177 20 S.Ct. L.Ed. U.S. brought This action two by present ordinance its The (1900). 897 plaintiffs, interest whose business-oriented some limitation on face constitutes profit lies de Willingboro be speech. In view of the “privi free of right property of real from sales rived Amendment, First position” of the leged a community.6 Linmark desired faster sale therefore, the nature we must review of Moyant Paramus, important designed is the re- v. concomitant to be advanced Even more purchase (1959). a home in A.2d who wishes 154 9 sult: one 30 N.J. way learning Although no what this court does doubt that Will- “option” adopted has the He choos- its ingboro available. ing ordinance for what legiti- those which a purpose, he shown felt a home was a valid Town Council necessitating realtor, thereby goals legislative pursued the use of a real cannot be mate Further, brokerage broadly liberty firm. the broker or estate which stifle fundamental means very may choosing be narrowly selective salesman end can be more achieved. when potential Tucker, wishes to a home he show which buyer. v. 81 5 S.Ct. Shelton along purported with This fact 231 L.Ed.2d “purpose of the ordinance —‘stabilization alleviating problems pan- goal here neighborhoods’ may have the ultimate effect However, selling is meritorious. the means ic — discrimination, denying freezing past Therefore, employed are not. the ordinance opportunity to find suitable hous- a fair blacks ing.” applied, to stand when as be allowed must not Board, supra. Estate DeKalb Real realtor, citizen, private a a to be the it enables only Thus, leads to the natural this circumstance potential buyer capable apprising a one application Willing- that in conclusion estate he the real market. It is status of infringement upon in an results boro ordinance of those homes who aware alone travel, right Shapiro v. the fundamental buyer is forced to seek him for sale. listed out, Thompson, 394 U.S. being merely longer able to a assess (1969), right a not be L.Ed.2d abridged particular area a residential compelling a State interest. absent for himself the homes which are ascertain Battaglia, F.Supp. (D.Del. Wellford pur- place follows is to What each available. (3d 1973). 1972), F.2d 1151 Cir. affirmed him, realtor, enabling whim the at the chaser sense, migration Travel, refers in this desires, prey to stimulate and on racial he if bigotry so abide, not mere movement. intent to settle perpetuate ghet- to create and fear Wellford, F.Supp. supra, n.9. tos. opportunity that view of the realtors Yet in result, through accomplished the ac- Such Willingboro have to utilize the governing body, municipal cannot tion regulate arbitrarily the racial and ethnic devel- court, hearing, following full This tolerated. area, particular opment residential there No. of determines Ordinance 5-1974 therefore potential of interference evidence abundant Willingboro Revised to be General Ordinances travel, right right applies a with the unconstitutional. migration. as interstate Id. as well intrastate appropriate an order. will submit Plaintiff at 147. 20th, February 1975 Dated: municipal Although ordinances clothed Kervick, ordinance on validity, testified presumption of Roe v. 6. No witness with a grounds. the con- 191, (1964), On discrimination of A.2d 834 exercise racial N.J. testimony support trary, power enacting municipality’s police showed organiza- part through a number of on the of reasonable means must ordinance ordinance rights public substantially of citi- to the civil black connected with the interest devoted tions Ass’n., Drive. Mellman’s sales Ind. City Sonoma Co. v. of Sherwood of Petalu- only by are earned 4, turnovers ma, 903, commissions note supra, we have con- ownership. Municipalities property have question as well. As sidered discussed regulation fide interest of com bona below, fully we cannot find more wherein in residential activities areas. That mercial supports record the district court’s con- case, may, proper interest in a concerning the constitutionality of clusions over a claim of economic loss. Eu prevail the ordinance. Co., 365, Realty v. Ambler U.S. clid plain 71 L.Ed. Speech Free witness, chief involved a single case in tiff’s Mellman, Every anti-sign infringes whose limited testimo realtor upon some speech extent form of is described above. to some ny on direct Cross-ex Willingboro’s message. If the amination witnesses ordinance herein type did satisfy the proof not burden of impeded “pure speech” on the due had its demise issue or even of economic process loss.7 is, been certain. would have There how ever, recognized distinction between a well Accordingly, the district court elected to advertisement and commercial the adver speech rest its decision free right and opinion, tisement information and ideas. considerations, concluding travel Hunter, v. United States 459 F.2d 205 See of the ordinance was to purpose maintain a Cir.), denied, cert. (4th 93 S.Ct. U.S. and citing suspicion imbalance racial (1972), 34 L.Ed.2d 189 reh. denied 413 might support discriminate as realtors 93 S.Ct. U.S. 37 L.Ed.2d 1045 respect its conclusions both free and (1973), If, authorities collected therein. the right to travel. speech clear, the present as seems ordinance im Review of the district court’s conclu speech primarily commercial, peded and the require not does resolution of sions witness portion of the message noncommercial does credibility conflicting or of factual testimo protest comment on or comprise of po have, course, trial. We ny at the con policies or social or like litical elements of entire record in relation sidered speech, the ordinance pure be sus adopting council in the ordi by public tained interest it serves. nance, in relation to the effect of the Though signs general Similarly, though convey a mes- right ordinance. sage thought, they was never mentioned at or a do not always travel trial or in con- below, though plaintiffs solely “pure speech.” briefs had sist A “For Sale” to raise standing that third-party inter a residence states sign the owner’s est, Seldin, Warth 95 S.Ct. commercial the realtor’s desire to sell that 2197, 45 L.Ed.2d 343 (1975); Construction A residence. “Sold” sign states the corn- accepted zens. The district court Councilman had earlier tors. Evans stated that “communi- statement Heath’s the N.A.A.C.P. was expressed by ty to him assessment” homesel- “among strongest proponents” of the ordi- a belief lers included the homesellers nance. bring- realtors from out of town non-MLS plaintiffs minority groups. That do not claim to be the victims But there was no evi- not, itself, of racial discrimination would out-of-town realtors dence had lost ordinance, if it save the had been shown to Connolly increases of Evans and sales. purpose or effect of have the racial discrimina- equally implied a decrease could tion. among realtors the 80 other in-town members MLS. Evans “believed” most of his 7. That the absence of results in economic Realty,” came from “March increase by plaintiffs loss was left to inference. otherwise identified at was not trial. More- cross-examination, plaintiff’s counsel estab- over, plaintiff Mellman was himself a member lished that same number of houses were Multiple Listing operating being (and Service sold thus that the same commis- earned). together being and had worked brought with de- sions were He then out Evans, particular the increase in the witness volume of fendant’s who Mell- defend- described witnesses, implying contradiction, man, realtor ant’s two an under- without “one of the my current of in-town realtors vs. properties.” out-of-town real- prime movers of

795 legitimate public served a welfare residence interest has been fact mercial manner place and limita- signs incorporate thus a the incidental present and The sold. speech falls upon element. on noncommercial “nonspeech” Unit- tion substantial 367, unspoken or invisible O’Brien, 376, “message” or commu- 391 U.S. 88 v. ed States nature 672, of a insufficient to override 1673, 1678, (1968), L.Ed. nication S.Ct. interest on First Amendment public Justice stated: Chief grounds. when held that “speech” This Court are “nonspeech” elements combined and That a communication is com conduct, suffi- same course a in the not strip nature does facto ipso mercial in important governmental interest ciently of its First Amendment the communication nonspeech element can regulating is “exception” There no protections.10 limitations First incidental on

justify limitation exempts a on commercial which freedoms. Amendment communications, “advertising,” scrutiny. That a communica constitutional does at present not does, however, permit is commercial tion regulate the to dictate or content of tempt municipalities weigh impact on signs, particular signs it forbids permitted public of the manner in which the general area, e., particular ain i. it limits altogether is made. And if that im communication signs, leaving of the involved location detrimental, be found and the limita pact conveyance available for means other pure speech element any on be found tion nonetheless, scrutiny, Our content.8 their minimal, the manner which communica whatever message consideration of impels may regulated. is be made Valentine tion signs. Though the mes reside may Chrestensen, 52, 920, v. S.Ct. us is primarily before sage of L.Ed. message, it is clear that a “For commercial includes an necessarily additional sign Bigelow Sale” was characterized in Chrestensen e., is leaving i. owner this message, “The Virginia, 421 U.S. v. residence,” and a includes the (1975), “Sold” 44 L.Ed.2d as follows: has left “The owner this resi message, holding dis- But the [in Chrestensen] detect, We unable and noth dence.” one: tinctly a limited ordinance was of,9 speaks possi in the record upheld regulation as a reasonable of the message and “For Sale” “Sold” ble advertising manner in commercial appears As property. herein- residential be distributed. fact that it had could below, the limitation we consider on the banning particular hand- effect place whereby and wherein manner mean that Chrestensen does bill messages may conveyed to have both proposition for the that all stat- authority governmental paramount on a advertising based been commercial regulating utes interest, wit the termination from constitutional chal- public are immune and its selling psychology impetus obviously 'to sup- case does not panic lenge. The segregation. way, proposition another housing sweeping Stated that adver- port any the manner place tising unprotected per and [Emphasis conclude se. we speech herein footnote commercial and limitation added omitted]. Calif, may Electronics Although 8. In Terminal-Hudson one author consider the exal- 10. Affairs, F.Supp. sterile, Dept. momentary, of Consumer ex- commercial tation (D.C.C.Calif.) three-judge transactions, by struck down a change equating court them to the prohibiting provision advertising all Amendment, code majestic First of the to be status optome and services of commodities cost of constantly press who the Su- unwise: “Those trists, provision permitted because the no other up every preme face issue to stand Court comparative price information means sight utility lost squarely be obtained. could edges keep cutting softening them from our Karst, Law, Community apart.” Law us below, testimony There was no exhib- Future, Assembly, American the American relating message being it, to the nature herein. the ordinance censored 796 in are by highest public banned the state matters of the inter- advertisement

The Virginia newspaper a appeared in U.S., 376 266 Bigelow and concern. at est [84 York. services in New S.Ct., 718, L.Ed.2d, for abortion 11 was at at 698]. Virginia could neither noted that court The respects, crucial advertise- In the the in legal services the advertiser’s regulate the present record resemble ments prevent Virginians from York nor New ad- rather than the Chrestensen Sullivan York to themselves traveling New avail expresses position None a vertisement. Because Virginia the those services. whether, aas matter policy, of social to have in their were found erred courts positions ought filled to be certain pro- that no First Amendment assumption sex, of one the other nor does members advertising, attaches Su- tection criticize the or the them Ordinance any of unnecessary it to decide found Court preme practices. enforcement Commission’s advertising may extent to precise no more than a possi- proposal of Each The court then commented: regulated. be employment. The are advertisements ble public expression, like all Advertising, examples of classic commercial thus regulation subject be reasonable may speech. legitimate public interest. serves a here, in respects, So all crucial Pittsburgh Press Pittsburgh Co. v. See and “Sold” in themselves Sale” “For on Human Relations. Comm’n Chrestensen rather than Sullivan resemble Press, 376, Pittsburgh In U.S. S.Ct. The of a subject message matter. visible reh. 37 L.Ed.2d den. U.S. proposal a a commer sign is “For Sale” (1973), city 38 L.Ed.2d a 94 S.Ct. transaction, the sale of residence. cial forbidding sex in classification message is an visible “Sold” The newspaper employment advertising that a sale transaction advertisement infringe not First Amendment held completed.11 Neither, itself, con been Although dissenting opinions rights. on social policy, grievances, comment tains Pittsburgh Press were critical of Chresten- abuses, criticisms, or the like.12 majority relied on sen, opinion speech herein Though primarily it v. with New York Times Co. compared commercial, duty our remains of bal- one Sullivan, governmental ancing the interest involved (1964), as follows: L.Ed.2d precise imposed. limitation As against feature of critical the advertise- The Supreme Court expressed in Valentine Chrestensen ment Bigelow: view, that, it did no more in the Court’s escape not of assess- a court task transaction, propose commercial than the First Amendment interest to a submarine. sale admission weighing public stake Sullivan, Co. v. Mr. York Times New allegedly served by regula- interest Brennan, Court, for the found Justice tion. distin- easily advertisement Chrestensen guishable: preservation of a desirable community impels priority of the commu here publication was not a “com- needs over the needs of those who nity’s in the sense

mercial” advertisement conduct commercial transactions was used in the word Chresten- would information, fit, see community long so ex- sen. It communicated are reasonably recited needs es opinion, grievances, pro- pressed those abuses, means sought fi- and the chosen to meet claimed tested tablished infringe upon not support on behalf of a move- do the fundamental nancial them objectives rights existence and of individual business- ment whose constitutional consider, message, prohibit post, “Sold” could result 11. To We “invisible” impression conveyance e., people leaving. that houses i. could be sold. were on sale but neighborhoods ordinance the present segre That the denies men. destructive realtors the and freedom homeowner-sellers effect of a panic selling psychology, gating particular the use of a sales tool continue that that Township interest is suffi and clear, not is it but fatal. Nor new. Con- justify is a prohibition of “For Sale” cient stitutionally affirmed laws abound that lim- signs, “Sold” physical the embodiments and practices. Nor does the record business it plaintiffs’ speech, commercial residen of district court’s the characterization support property.13 tial It’s as “serious.” effect on the denial of is, most, at the pace to slow of plaintiffs of the Ordinance Purpose 30% inquiries the of received from sales Nothing in the indicates record to that the other 70% received from signs ads, present the the thrust of ordinance Newspaper in-town that sources. or displays possible or other means of the of a was maintenance racial balance window fully imbalance, the to sell conveying desire remain that such desire was the sold, all. Houses will still nothing available And indi the Council. of record quickly. not as though perhaps Most im- equata “preserving stability” cates that solely fewer be sold because portantly, “racial or to herein to discrimination” ble had a fear of minorities. We seller the given the maintenance numerical ratio the limited denial occasioned consider persons white to nonwhite in the commu herein to result from a rea- ordinance the nity. Only by refusing minority to sell to a power police exercise of the in fur- sonable Willingboro, in buyer anywhere could public by forestalling the welfare thering population ratio of be main set selling offspring, and its segregation. panic herein, “Stability” as the record tained. shows, means diminution of the number of argue and Mellman Linmark the leaving on the basis of fear alone. neighbors inadequate. interest herein is governmental Realty Co., however, F.Supp. v. 304 Brown State persuaded, the con- See We are 1236, (N.D.Ga.1969). Obviously, is of public welfare sufficient 1238 cept uphold Township’s interest could itself control who absence breadth stable, racially protecting integrated moves in.14 testimony There was herein 13. housing precedence. Village In took of Belle unsightly. governmental Aesthetics 1, Boraas, 1536, 416 U.S. 94 39 S.Ct. Terre supported which have limitations on interests Supreme Court, (1974), citing L.Ed.2d 797 application of the First full-force Amendment Parker, 98, U.S. 348 99 Berman v. 75 S.Ct. advertising, outdoor commercial St. Louis L.Ed. said: Louis, Advertising St. Co. v. Poster power legislature It within (1919); 63 L.Ed. United community should be determine Advertising Borough Raritan, Corp. v. healthy, spacious (1952). beautiful as well as well 93 A.2d 362 There N.J. testimony establishing was also clean, carefully difficulty as well as well-balanced of control- clear, signs. however, ling It is “Sold” that the patrolled. public sought primary interest to be served Madison, also, at Inc. v. Madi See Oakwood forestalling panic selling was herein son, N.J.Super. (1971), 283 A.2d 353 evils. its attendant zoning invalidated a ordinance the court promote reasonably a failed to balanced Though present ordinance was not de- general in accordance with the wel balance, signed to achieve racial there is sub- fare. general purpose that such indication stantial gov- engineering, destroy, of social support, The difficulties rather than the ordi- would harmony, in site selection to achieve racial The thrust for subsi- efforts nance. ernmental housing groups racially for low income agonizing dized conflict between the desire See, tenancy. Housing Fair and Ex- balanced clusionary integrated concommi- communities and the for Use, Report Land of National Com- denying necessity of residence to a minori- tant Against Housing Discrimination mission beyond ty particular planned in a area num- (1974), Twenty Land Institute cited in Urban community, designing are de- such ber Brown, supra, p. note Years After Frederick, Legality “The Affirma- scribed City Housing Authority, v. New York Otero Integra- to Achieve and Maintain tive Measures (2nd 1973), it was held F.2d 1122 Cir. that the Town,” in New Geo.L.J. 335 tion racially duty housing authority’s balance Q. Is your impression the en- of the ordinance That prohibiting actment nip panic selling was to the Council and of signs has in any way sale caused a lessen- bud, preserve any particu not to decrease in or a areas of racial or balance, undisput racial numerical lar conflict in the township? ethnic by every trial illuminated and was ed question put.15 my specific response to whom I think witness A. example, the Chairman Commis fairly For that it’s to be clear to me Lyght, sion, stating Ernest S. after the Rev. prohibition stopped or brought to currently no overt there was racial that things the kind of an end that we used to underlying that racial conflicts but conflict of, people talking hear about the rapid remained, asked: was in the change community, whether it was enactment

Q. of the ordi- that in fact or assumed. So for sale didn’t prohibiting nance similarly Commission member A. W. Porter problem; entirely solve is that what testified: saying? you are neighborhood If the was or to be all And there was A. No. no intent on black, if and that is a choice, decision by Commission in part making involved, of the individuals then choice a recommendation. There was no such I believe Commission would have no this going was to somehow thought neighbors, about that. But if concerns problems. But it was all racial felt solve township are being residents one approach, aspect this was one thing into this kind of pushed by the problems, overall dealing specifically with or signs, then I think presence this matter of creating panic to deal with concern the Commission’s would be that we selling, clearly realized be, ought not to this is not the free change, see, cause a in could the racial people ought exercise, choice to community. balance exercise. should you Do your- THE COURT: concern Kearns testified: Councilman balance; things with selves such Now, you you, said that Q. as a coun- mean, instance, for an you do 80/20 ratio mayor, cilman and former were not con- necessarily a balance? minority groups in cerned the com- WITNESS: No concern with THE rat- reaching munity a level of perhaps 20 to ios, absolutely none. Simply open- of the total percent population; cor- ability to live in the ness community rect? in anywhere the community one correct. No concern with A. That’s chooses. ratios.

tation? balance, openness. ance,” BY MR. GOTTLIEB: A. Q. So No, it doesn’t have but should when probably you use say complete, numerical conno- I the term “bal- shouldn’t total say groups ing ever A. Q. ^[*] this your Absolutely not. your ordinance to feeling that council was ^[*] moving discussion in ^[*] into town? ¡fí restrict council, ^[*] minority was it utiliz- ^[*] part testimony 15. No of Evans’ established a (in that view were somehow evil the absence of discriminatory desire in him. Nor could his ratio) maintain set acts to would not be personal Township views be attributed to the binding on the Council or constitute evidence testimony The full Council. Evans establish- purpose enacting of the Council’s the ordi- to es that his reference “80/20” involved Evans was not nance. Council and did sales, changed his own which had not policy Willingboro. not make Plaintiffs’ passage short four months since of the ordi- objected, properly, counsel to Evans’ answer- nance, way guessing” and that he “had no question as to whether “conditions in the percentage minority what “overall sufficient to warrant the or- [were] groups Willingboro” was. Evans’ view that dinance.” represents “stability,” ratio 80/20 even if two, number question In answer what- Blacks, Spanish persons, Q. notion as to what preconceived have no have-you? people ought to be. percentages Absolutely trying not. We were A. interest lies in avoidance public reaction on the the emotional prevent leading panic climate psychological way It was in no related of sellers. part impetus housing and its resultant selling, community. moving into people was, here as the district court segregation, Heath: Councilman referred the court recognized, Now, per- I understand that Q. Realty, City Gary, Inc. v. Indi Barrick community, minorities in the centage of (7th ana, 1974) F.2d 161 these Cir. increased; that cor- however, had been terms: rect? banning history of the ordinance correct. A. That’s signs shows that it aimed Sale” “For selling and that its panic shows township exhibit Q. your But resegregation. passed It was halt now; and to eighteen percent it’s of numerous presence response an unstable con- represent you, does signs neighbor- in some white “For Sale” condition? a stable or dition whites move en hoods, caused to sufficient infor- think it’s A. I don’t There replace to them. blacks masse judgment stability to pass as mation real in the record that some evidence is know, You instability. simply or —the these placed brokers who estate simple figures. en- plaintiffs) actively including any (not you great concern? Does it cause Q. by unlawfully couraged resegregation cause me concern? Does it A. before quickly to sell whites urging neighbors property and lower black had Q. Yes. signs proposed Plaintiffs’ a com- values. Personally there because A. pat- part transaction that is mercial Willingboro, no. cause in Would it blacks transactions, all of which taken tern that I large felt that number me concern City lead a result that the together were Be people panic-selling? Yes. try to properly prevent. can Gary white, or and be blacks or they black 163-64. F.2d moving in. whites Township indicated, As above rapidly capriciously not act or did Council years herein. It waited two arbitrarily or simply A. Do I think [sic] It It consulted. investigated. It to act. people of our black percent 18.2 its It exercised public meetings. two held position? an unstable presents its carrying out judgment, unanimous Q. Yes. experi of its basis duty, on the prescribed A. No. threat panic-selling ence with anything on that chart Q. Is there the full results That community. represents think an you unstable terminated sought be here panic-selling or imbalance you an of what condition than extant as rather incipient, population ratio should be in think controlling. Barrick, be cannot Willingboro? Willing found that court district they are two different I think A. pan alleviating problems “of goal boro’s one, If I could answer there is questions. meritorious,” distinguished ic-selling but think, nothing on here that causes me to the basis that evil results Barrick values, statistics, looking (reduction at the it’s unsta- in property panic-selling establishment) ghetto16 question one. segregation, number answer ble. minority apparently “ghet- simply an area of concentra- court defined 16. The district than property values and of low an area tion: to” as inhabitants, rather caused deterioration encourage attempt flight.” mere “white happened Willingboro. yet had 3604(e). argument made the See Brown State same § counsel 42 U.S.C. Plaintiff’s Co., herein admitting, however, Realty supra. Bar- The ordinance us that the before nature and constitution- preventive be being correct if those evil result rick present case fits proven ally permissible, had been to have occurred. results worth adage, prevention “an ounce of to forbid termination of a cause But of cure.” pound until effects its detrimental panic-selling would be burdened the had Barrick, that the court in it critical isNor That form over substance. exaltation “white panic-selling concerned incep combating bar at its approach would neighbor neighborhoods.” Whether so problem plaguing now very tion the Barrick, fully “white” inte as in hood where measures such as many urban areas here, panic- the final effect of grated, necessary.17 now found To “busing” are same, e., i. selling is acceleration seg to await the evils of force segregated housing pat toward movement it has so avoid successfully regation, anything, panic-sell If avoidance of terns. date, principle of Barrick so that ed greater significance in a may have even ing employed in an effort to may thereafter us, which, like before neighborhood those back, approach seems to us an devoid fight integration, be avoidance has achieved common sense. designed preserve cond desirable ition.19 prohibiting an ordinance “For Sale” Thus signs in neighbor “Sold” residential specifically ordinance herein That constitutionally acceptable homes, was found

hoods on model where no permitted possible, a reasonable halt message Barrick as means to further “invisible” panic-selling resegregation and rampant its the that the was fact confirms appears against No reason of record to message the invisible effects. directed e., same i. signs, people that the ordinance18 is not that leaving. were indicate the constitutionally as a acceptable more with the district court that home agree even We to halt early panic-selling means assume that having should not black reasonable owners segregation effects. The will result incipient always prop in lower neighbors and its Housing prohibits comes, Act the values.20 erty day federal Fair Until 17. That circumscribed Atter by public See, also, ghetto that I people pensive been the concerned anybody low twenties? ous neighborhood into a much for a house would want minorities subvert THE THE Do THE WITNESS: THE THE THE Brown, supra, witness. schools heard you ^[******] out of a town? who could WITNESS: COURT: COURT: COURT: COURT: house Miliken would testimony 3112, 3117, about someone feel of, is set forth in sold make a As a Low It Why afford note Bradley, along I don’t. Yes. must in the the here —that neighborhoods peopled ghetto? price someone lawyer, would ghetto effort to that would the L.Ed.2d low p. paying of houses in the I never 107 and line, you Twenty $20,000 range. out of would been a the least ex- paying to turn this desegregate or think that —and thought make a at you p. previ- town. Years least it’s be at 20. 18. The ordinance 19. court prevent effort tion. ties pra, note toward before cess-preserving has. Courts crimination” selection, Roads F.Supp. ing v. Chairman 1974. black neighborhood sold The The Federal A. who and herein, changed us and Revenue following When the low families, many achieving prevent segregation have succeeded in 1, see and, pp. (N.D.Ga.1973) income should to “freeze and Board of Commissioners was Twenty land use Government, by attacking zon- 100-108, efforts of hands from white families to began transpired in DeKalb first three homes that were entirely course, what hesitate to housing Years Añer white devotes in” in powers employed to DeKalb those say there cited different Real Estate Board at trial: achieving in in site and tenant impede families suburbia, Willingboro few communi- by yeoman County, Brown, the no “dis- the suc- integra- already district effort in an su- in must, court erred in reprehensible attributing when such district come groups of people within broad views of those unworthy lumping the Council ceased, however, phe response who would flee in generalities homeowners be, flight” as “white must known syndrome. Con nomenon a “blacks-lower-values” indi with. above being, dealt is purpose, As. review of Council’s cluding its cated, recognized, its existence declining “fear of stated that the court * * * unlawful, is made encouragement cannot values property Act, 42 U.S.C. Housing Fair federal when it results in an concern of this court 3604.21 But, § rights.” abridgement of constitutional recognition though the Council acted recognized and at- Township Council effects, fear, not to it acted to chill its problem same to deal with tempted proliferation signs plays it. The foster us. To slow before adopting the ordinance very properly fear so excoriated artificial, pace of racial fear-accelerated Prohibiting signs district court.22 re specific population seek not to change is Striking genesis moves the of that fear.23 itself a form of racial not ratio expunge the ordinance cannot down a fact human When ex- discrimination. “sell before it’s too late” notion from panic-selling, recognized such perience, Willingboro. of all minds homeowners firing those on the line acted course, intent, Contrary, of to its desire and community, we the more cloistered stifling court’s conjectures the district interpose regard- our the Town should strangle action, ship’s such in the ab- effort birth the fear of to stifle motive blacks-lowering-values could only evidence of violation of fun- result clear sence continued, rights. sign-generated encourage- constitutional damental express very regarding entry and to concern that all by representations worried or that were then for sale homes of the other entry neighborhood prospective into the of a black, go from white to and that also particular race, color, persons person changed entirely. neighborhood will be sex, origin. religion, or national As amended desegregate ghetto. They’d be left to 93-383, VIII, 808(b)(1), Aug. Title § Pub.L. fear, lot of and I invested a lot There was a Stat. 729. point trying people to talk to of time at below, apparent put of its influence we rushing Because their home on the about not flight” just move to another herein “white element market and discuss people by were transferred in generated some because of lower “For values of fear military. jobs clear, however, their or signs. “Sold” It is and Sale” they way, why If felt that THE COURT: any neigh- proliferation of such in that a borhood, go? They very good them wouldn’t be not let in a nation of citizens of one even anyway; they? neighbors would happy (or nation of the color- in that color not, Perhaps panic- but THE WITNESS: impression productive of the blind), is something selling is not that seems to work many leaving something wrong, and low- is very for a well life. phenomenon The are imminent. er values difference does THE COURT: What it being as sellers rust to avoid itself feeds make where he lives or what color he if over-supply any product for of The “stuck.” good neighbor? he’s a How would that de- likely recognized to lead to lower sale is preciate value? personally he prices. Mellman said Plaintiff agree you. agree I THE WITNESS: with many signs in a “too discretion because used you. IBut think when there is an atmo- properties be- particular not market panic, people area” does sphere of tend to settle for less people.” asked scare When “it than value of market value of their cause house. right. watches, said, “Yes, you All COURT: Mellman I think THE about any market.” can overflood Discrimination the sale or 3604. rental § housing of parallels herein the fed- the ordinance 23. Tl'.us applicable section 3603 of this As made Act, Housing which makes unlawful Fair eral except exempted by and sections title 3603(b) discriminatory expression of intent. title, the written 3607 of this it shall be also, 3604(c). United States v. See § 42 U.S.C. unlawful— Hunter, denying application supra, of First protection to an advertisement of attempt (e) profit, to induce or to in- Amendment For any dwelling any person or in a home.” to sell rent available “white duce a residence Barrick, As was said in from other sources. ordinance herein that fear.24 The of ment supra: adopted at the instance of those con that in plaintiffs’ flee from blacks. On the exhibits reveals would of who One 1972, prior the date the ordinance be- the white to it was aimed trary, nearly of effective three-fourths to by those who wanted whites came flighters per- to home sales were Realty’s Barrick in. ordinance blacks moved An stay when to property by attracted first sons to of a human designed blunt effects sign. other than a means “For Sale” not be struck should down because foible the ordinance does it un- not make Thus An intended exists. foible house; sell a difficult to duly it only of anti- designed impede to exercise slightly it more expensive to do so. makes cannot itself be considered anti- fear black Accordingly, the burden property of fighter The cannot be cancer black. small, rights effect on the existence cancer. for the blamed insignificant. to travel is right statement following agree with We support can we find in the record for Nor Legal Educa- Defense and NAACP of the purchas- court’s conclusion that district Fund in its amicus curiae brief tional broker, be “forced” use a would ers 165): 491 F.2d (quoted at Barrick might be the only capable a broker one of both the black and white interest buyer, or that “he alone” apprising outweighs in stable communities citizens homes for sale. As the testimony aware having to uti- any minor inconvenience clear, newspaper ads were widely made methods for advertisement alternate lize freely and remained available. There used gathering. information percent- at trial as to the no indication through prior homes sold brokers age Ordinance The Effect Moreover, the ordinance. the very or after sign posted aby broker is court considered as district buyers into his regard hands. In this direct important” more than the limitation “even plaintiffs we note who seek rein- sell, right express desire to are two statement business potential purchasers would conclusion dealing estate, in real one a entities broker. learning way “no what is availa have unsupported, find the conclusion We ble.” the district court But went on to assume of the record-established fact unscrupulous in view engage realtors purchasers inquiries “steering,”25 returning stem 70% theme at Though court mentioned “when the district to be So steered some- Q. achieved,” narrowly thing, end can be more words? other appears multiple open listing means and Flip described other none No. A. the record. and let them find their own house. book words, they designate geographical only specific “steering” reference 25. The they’d like to be relative to where area community different the trial related to a and they most cases. work in purchasers constituted denial that be had to your They be in office to have to see Q. “steered”: book? this municipality— any BY MR. HAUCH: InA. is, And in Med- that connection with realtor’s office who is a member Q. Some Q. Lakes, you they said that ford don’t have M.L.S.? of there; Well, reported Burling- out and if it’s 82 of been to A. them in there you your minority family County. one of fellows ton up there, say, they get They out interested and calls into an have to office to see Q. here”; bring though, your out “Don’t them is that correct? whether book it’s office or They have fellows? That’s correct. taken them the other A. of one there, though. paper, right. out Or read the A. right. paper. Right? All Or read Q. Q. way people right. have no themselves Then these That’s A. around, Moreover, seeing, by riding available what’s to was in reference Medford Lakes un- right? necessary may you; that realtors to to establish “steer,” right. That realtors “steer” as well as That’s A. might to opinion. For the reasons desire “stimulate and prey in ra- points three below, think the district court and or bigotry per- we fear” to “create or given cial presump ghettos.” on a resting contrary, its decision On the the evi- petuate in erred Willingboro established that perfidy.26 had tion dence integrated an remarkably status achieved in the record evidence There discriminatory practices and that free discrimination, actual or in racial any governing Council was alert to tended, any person group in the that status which resided in the threat was Willingboro residences.27 There sale effect relationship and between the cause any potential purchaser no evidence panic-selling. the absence of equal opportunity to ac denied been had connecting the ordinance to racial evidence Willingboro in and no any residence quire discrimination, we cannot condemn it on buyer having such been directed evidence grounds. those having area or been de any particular imply we will social guilt Nor known of which knowledge full homes were nied Society is not by assisted as racism. Willingboro. in Nor was there available implication of insidious trait. We still establishing a cause and effect evidence any enough of the real thing around.28 between the ordinance relationship practices. There was no evi The concern illegal district court such relating possibility the ordinance to minority dence for of collusive racial dis Nor could there The in the purchasers. be. crimination sales process house was thus premature. is, and at least equally of the ordinance falls overdrawn It effect buyers. course, always possible black Thus the evidence homeowners and white enter a support specula conspiracy district court’s fails brokers which own only brokers, list broker desired or both would tion ers recognized by, anti-sign law. 42 U.S.C. “blockbust” even facilitated an ordinance. No § placed Lakes ordinance Medford was in evi- probative There was no evidence dence. analysis of the district court is flawed Willingboro’s presumption ordinance modeled after one that the ran the fact might “very who selective which Lakes. Plaintiffs’ counsel realtors cut off of Medford buyer might or who “arbitrar- objected testimony to show home” answer about Evans’ development” ily regulate the racial and ethnic Lakes, indicating that Medford discrimination area, e., might engage realtors who of an i. “community due to a restriction”: there analysis “steering.” assumption makes no your opinion, having been a real- InQ. unscrupulous might, realtors in the ab- Lakes, selling Medford has the tor ordinance, engage opposite sence of the an proposed, been the ordinance discrimination, e., of racial i. the creation form there, prohibits signs being for sale segregated “blockbusting.” areas Both erected, has that been utilized as a further- illegal forms of conduct are under the federal segregation in Medford Lakes? Act, ance of Housing the former Fair under U.S.C. Absolutely— 3604(d) and the A. latter under 42 § U.S.C. 3064(e). your please, just The district court’s limitation Honor I of its HAUCH: If § MR. perfidy may potential thing get view of have been occa- one clear for the record. want trial, early plaintiffs’ when coun- sioned sure have an ordinance in Med- I’m objected question touching to a sel on “block- prohibits signs. Lakes ford busting,” “unscrupulous and described real- we know Do that? THE COURT: “assumption”: tors” as It’s never been HAUCH: testified. MR. If counsel wants to ask MR. HAUCH: to it is there is a closer think Jersey the New or not statute whether that’s been effect for a number restriction might against discrimination restrict the mar- years. beyond that, ket, going right. But unscru- all realtors, colloquy assumptions, district court commented in pulous the other 28. The opinion really problem follow or think an can the “heart of the can’t the trial [racial] expressed honestly on it. be everyplace.” along” “mistrust has been all We view, suggestion join with that mis- to Medford The dissent’s reference Lakes is by races will not be trust between cured mis- to understand. Discrimination had difficult years. rampant a race. Judicial for There was trust within decision cannot been there to, safely suspicion. evidence that that discrimination was due or on rest signs use of either “For tained and effected no racial classifications. from Sale” refrain ads, fell, discrimination, and the newspaper brokers would without on all real or It races, all availability of homes. on lie about colors and creeds then tors and ordinance, with without actual possibility exists The effect of the But alike.29 And, existence, with four during or without months of its the ordinance. ordinance, practices would be violative at the trial a number of wit such described Act, contradiction, Housing nesses, Fair as appearing federal U.S.C. without Jersey purpose. and of the New statute achieved The talk of to have § discrimination, moving 10:5-1 et in fear of minorities N.J.S.A. was described having not construe the ordinance as ceased and the seq. We will number of actual federal and state for that reason was permitting moves described as discriminatory purpose A laws forbid. been reduced to a having minimum. of laws fair on their face the administration v. presumed. Hughes, not be Snowden to Travel Right

will 88 L.Ed. 497 U.S. find no support We evidence to can we visualize the massive conspir- Nor that the ordinance any conclusion burdens necessary that would be acy carry right Willing out to travel. one’s Houses effectively the discriminatory through scheme envi- are sold channels boro same the district court. prior Homes listed sioned the ordinance with any broker-member M.L.S. are are free to sell to any with Sellers ordinance. to all of the other 82 realtor mem- economically qualified buyer. Economically available bers, among whom are two buyers any black realtors racial group qualified Mellman. That all realtors plaintiff any home in section of buy free illegally buyers “steer” black into a No burden on commerce or a Willingboro. away right area and from other areas particular deterring influence the individual unlikely require as to strong Village is so evidence has been migrate shown. See Moreover, 14; acceptance. before plan Boraas, such a v. supra, Belle Terre note Sha would be difficult to start in Willingboro, Thompson, v. U.S. 89 S.Ct. piro where there was no “black” (1969), section to 22 L.Ed.2d Construction might initially blacks be “steered.” of Peta Industry County City of Sonoma Further, as reflected in (9th 1975), exhibits P-4 luma, petition F.2d 897 Cir. P-5, the standard listing agreement Dec. cert. filed all members of the M.L.S. contained a court’s “natural conclusion” The district of the Attorney memorandum General of right to travel rested on the regarding Jersey which set forth New illegality that real estate “For belief Sale” erroneous “steering” and other discriminatory prac- learning means of what were the signs further, tices. Still federal Fair Hous- available and that the absence homes were Act, 3604(g), prohibits 42 U.S.C. § buyers delivered all such into the M.L.S., denial of access to organ- real estate might unscrupu- who of brokers hands izations, or other services relating to the inquiries come fact that 70% lous. of selling and renting dwellings. business signs, than the fact that sources necessary, That it is in order to invalidate has the same effect on the absence ordinance, to visualize possi- the remote blacks, and the fact that no whites as bility widespread of such a conspiracy to of racial discrimination had existed pattern law, violate the confirms to us the funda- years, for 14 go all to con- validity of mental the ordinance. in that the error conclusion and the firm

Racial classifications are constitutionally striking the ordinance herein on error present but suspect, ordinance con- that basis. Township pass principle

29. The dissent states the obvious could not constitutional muster. having established, principle inapplicable an intended but That limiting housing access of minorities to here. XVII of the Revised General Ordinances of CONCLUSION Township of Willingboro, Jersey. New the above, not the ordinance did discussed As in Chapter XVII twelve sections deals com- through other media such expression, deny with the erection and mainte- prehensively The ads, of the desire to sell. newspaper signs. operative pro- of The central nance piecemeal limitation present danger chapter vision of the 17-2: § rights has of constitutional exercise the However, Legality prohi- the 17-2 recognized. long been signs residential as tools the use of of bition and maintained Signs may be erected transaction, a commercial proposing for Township Willingboro only of in the widely more used leaving other and while comply the same with provi- when the announcement, for such means available chapter, of this and it shall sions be un- the level of an in our view rise to not does to erect or any sign maintain lawful of the constitutional denial impermissible within any place Township the said of right the speech or of free right of Willingboro when the same does not com- travel. provisions the of chapter. this ply interests involved we con- Balancing the Chapter of XVII is the Thus foregoing the consider- clude, light of exceptions, with enumerated prohibit, flatly interest ations, governmental the erection maintenance of and of the evils panic-selling, of prevention community. Among the excep- several thereon, is sufficient to free the attendant general prohibition are those tions banning “For Sale” “Sold” 17-6: in § listed this case property in on residential Residential Zones 17-6 infirmity. constitutional from following signs permitted are judgment of the district Accordingly, Township Willing- of areas of those be reversed. must court have been zoned which for residen- boro use. tial GIBBONS, Judge (dissenting). Circuit followed, adoption prior then There appeal judgment from a final is an This 5-1974, desig No. five specific Ordinance court, a non- entered after the district signs permitted nations areas zoned merits, findings based on trial on jury 17-6.5, purposes. residential Section for fact, holding unconstitutional an ordi- encaptioned Signs”, provided: “Rental Willingboro, New Township of nance Signs. Signs pertaining Rental 17-6.5 findings court’s The district Jersey. lease, premises rental or sale of the erroneous, being clearly fact, far they appear, subject to the fol- findings Those by the record. compelled lowing conditions: justify legal the district court’s amply fact sign size shall not exceed a. The I believe majority Because conclusion. feet square in area. eight court’s or distorted district ignored thereby substituted its findings upon and has shall be located b. of the facts for those found pertains version and shall premises own fact, join I cannot in the court’s beyond property the trier line of project unsup- even on this And because opinion. premises. such of the facts the majority has version ported signs shall be removed within e. Such misapplied the governing prin- or misstated lease, days after execution of five sustaining challenged law in ciples agreement agreement or of sale rental ordinance, I respectfully dissent. premises question the occu- 5-1974, premises and/or the owner of pant No. which we review Ordinance case, Chapter sign. an amendment in this 17-6.3; Specific exceptions Nameplate Recreational Activities § included: The other 17-6.1; Signs, Professional Signs, § 17-6.4. Identification § 17-6.2; Signs, Usage Signs, Non-Business § two such are to factual clearly than conclusions are if Not more not over- d. any property. upon supported the evi- placed whelmingly be record dence, unconstitutionality judgment the of repealed 17-6.5. challenged ordinance § The affirmed. must be repealer general the result As a of applicable 17-2 became prohibition § lease, relating to the rental or sale sign INTENDED THE TOWN COUNCIL’S I. Willingboro. a home of IN PURPOSE ENACTING court found: district The NO. ORDINANCE 5-1974. the true appears that thrust of these “[I]t case consisted of primarily plaintiffs’ The promote is to a racial ordinances public hearings minutes of two properly a racial imba- or more balance by the Town Willingboro conducted were perpetuate existing in order to ra- lance adoption prior to of Ordinance Council lines. cial minutes, P-3, Those Exhibit 5-1974. No. doubt that precise- There can be this is nature ex joint “in the of a offered by Willingboro result desired ly the agreed they accurately It’s do hibit. adopting Council this ordinance.” Town meetings what was said at the reflect found that the Having purpose intended of subject.” (131a-32a). examining After was to limit opportuni- the amendment hearings minutes those one can reach property owners to communicate the ty of The conclusion: only one unmistakeable availability potential of their residences proponents for repeal stimulus minority occupants, the court went on was the fact the non-white 17-6.5 § find: had increased from under 12% population important more “Even the concomitant to over in 1973.2 18% No. Ordinance one who wishes purchase result: was a transparent perpetu effort to 5-1974 has way of learn- home existing racial balance ate and arrest what available. only He Willingboro’s popula non-white growth choosing a home from those ‘option’ transcript of the hearings The alone tion. aby realtor, he is shown thereby supports finding the district court’s amply necessitating the use of a real estate bro- maintenance of racial bal existing Further, kerage firm. the broker or primary was the motivation behind ance very selective in choos- salesman ordinance, the supplementary evidence home he ing which wishes to show on behalf of the makes Township presented buyer.” potential as a any other conclusion matter of law the court found that the in- Thus both inescapable. and the purpose effect of the likely

tended Township presented defendant one was to limit the repealer access of minori- D-l, exhibit, This housing in the at trial. exhibit tabulat- Township. No ordi- ties having demographic study nance intended the results ed effect, submit, likely composition Willingboro’s can pass popula- constitu- racial Because the muster. district court’s period years tional (128a): over tion P-3, See, by emphasizing g., of this e. Exhibit statements of Mac- exhibit it was ad- (31a-32a); (40a- (29a-30a); Jones Kirk Now mitted not for the truthfulness of the state- 41a); (43a-44a); (51a); happened Wortman Miller Yost to establish what but ments (59a-60a); (65a); (56a); meeting. suggestions Dubin Fleet- Turoski But the racist are no Realty (72a); (76a); are, Wortham wood Taraschi of motivation because evidence less be, (96a); Klingenberg (97a-99a); (91a); Cohen them to false. The fact remains I believe Connolly Grindlinger (102a); (108a); Boyd minority in-migration was the stim- that fear (110a-lla); (116a); (110a); majority apparent- Cannon Brooks ordinance. ulus (118a-20a); require accept ly Kearns Councilman that we as true the Councilman (121a); (120a); underlying Heath Krane Councilman beliefs about minorities before we (122a). accept expression McGrath In footnote such beliefs as Councilman can denigrate significance majority attempts to of motivation. evidence Year Total White Black Other Non- Percent Popul. Popul. Popul. Popul. White Non- Popul. White 1950 852 Unavail. Unavail. Unavail. Unavail. Unavail. 11,801 11,861 60 .005 43,414 38,326 4,738 5,088 .117 8,122 44,607 36,485 7,637 .182 testimony of several Very definitely. also offered A. It The first of these was Donald C. witnesses. sellers, Q. By purchasers By excuse — Evans, proponent a Ordinance and a what was that me. And sentiment? office and whose residence were in Realtor sentiment was that A. Yes. Willingboro. On direct examination he tes- bringing in brokers that were signs 162a): (157a-58a; tified town, from out of bringing non-MLS Now, to Q. my question listen in— you Did that: have occasion to answer say, How do I your THE WITNESS: prospective purchasers with discuss I don’t want to Honor? restrict it to Willingboro prior situation to the en- ‘black’— of the ordinance? I’m talking actment amount of signs (Continuing) minority groups now the for sale about A. —but reaction, any, if would be to sell them into in order Willingboro. in these developed prospective purchasers

by this. Well, Q. in what way pres- would the yes. answer A. The lead to signs ence of less of a stabiliza- that? What were Q. was those What tion?

discussions? Well, you many opinion. People There were in number for A. have an A. I sold, have taken out to show people a watched houses being that have be- And then if there has house to. been two street, or on the side them and there are street, signs on the same or three go out five will to a minority, one been: Is question something has there make this statement: they’ll ‘Boy, the wrong with this street? Is this street sale, goes up one for if next time another And I’ve question black? had that going street, going onto the I’m black moves a of me number of times. asked and move.’ sell Q. taking How about with it the other you find Q. prevalent Did this to be a again, before the way, enactment of ordi- prior to the enactment of attitude nance, discussing this with prospec- with ordinance? homes, you sellers did similarly tive Absolutely. A. with discussions them? have redirect examination Evans was asked On A. Yes. (171a): and answered opinion did have an Q. And opinion, having Q. your been involving signs in the situation the town- selling Lakes,3 in Medford realtor ship? proposed, been sign ordinance the ordi If your please, HAUCH: Honor MR. there, prohibits nance sale him object expressing someone erected, being has that been utilized as a opinion to this else’s witness. segregation furtherance Medford BY MR. GOTTLIEB: Lakes? Q. Was there assess- conveyed you?

ment Absolutely— A. nearby community is a 3. Medford Lakes ordinance served Willingboro whose as model for the ordinance. called defendants witness The next Heath, another member of the E. Steven Kearns, Jr., a member J.

was William Council, the next Township On direct examination Township Council. He to be called. testified witness defense (179a-81a): testified he (205a-06a): the winter prior Q. you, Were what Court you indicate Would feeling on the ’73-’74, to obtain a able of the communi- understanding was your respect with to for community sentiment beginning sentiment ty township? sale on, respect so ’73, and so, yes. signs in the communi- I believe sale A. of for posting ty? opinion what Q. And overwhelming community

time? A. The was abolishing signs. all sale in favor for very definitely was think there A. I community something signs? All feeling in COURT: real estate THE prohibit real estate be done should resi- That was of a WITNESS: THE community. signs in nature. dential sentiment started public I think any There was never (Continuing) A. ’72, early be- probably developing discussion, commer- my knowledge, strong- more —somewhat somewhat came meetings I attend- at signs cial more concerned people became er as signs, model home ed, commercial about adoption with the culminated and nature never en- of that anything signs, in 1974. it. into tered general opinion. Q. That’s go- separate question that’s is a There signs now about the of cer- right opinion the basis for that was What signs things like and you people. commercial Did tain people? these —in this with them? discuss that. ever you Did fact, specific, in I believe be- But key my one of the issues in cam- came Yes, it a number I discussed with A. elected, I was the whole when paign I think that concern and people, signs of real estate and the na- question generally expressed was that was community and the quality ture community expressing were in the people have, we community and the fact their homes and move to to sell a desire community have a that’s we we feel County because Burlington areas other country terms of human leader stability was a lack of they sensed what relations, being that we are taken and community, in the large turnover aor ways. in certain advantage of large turnover was result- this and that consequence, a number of as a And of minority influx ing in a substantial beginning in the people community beyond what into the groups pride and the faith some to lose without the communi- sustained could be community. had in the they turning ghetto into a within the itself ty mention heard him individual —I One county. party at a and a number of specifically was testified that also Kearns they get had to out say people an all-white communi developed as initially great experi- Willingboro because integrated 1960s early was ty, and failing. it working, wasn’t ment a suit devel principal after proper- what’s happening ‘Look That: Sons, Inc., successfully Levitt and oper, wants to sell their Everybody values. ty pressed.4 home.’ riam, Sons, Against 4 L.Ed.2d 80 S.Ct. Inc. v. Division Dis- & Levitt Educ., Dep’t in the State 31 N.J. crimination 177, appeal per cu- dismissed 158 A.2d opinion. people who live in You drive particularly And around. People signs. sections of Rittenhouse Park see a lot of would They say: townhouse would ‘Everybody Park where homes are wants to Fairmount sell. and This must be quite together there are closely on a because too clustered many blacks in town; we if and, or two real estate don’t do something court. One just it, it’s boy know, they look like a lot than going go, more about you get sell out let’s when are that to- now.’ or two close one people say: ‘Every- And gether. trying we’re what And do is kind of wants sell. in Rittenhouse the bud body nip and stop it now before happening?’ much of got What’s this too out of hand. get five or six row point it, in a this we you stop And And could still street, our particular rise, on a different to have property continue values happen stop on the street —I saw it the individual home neighbors but owner from street, thinking: I ‘Boy, now, almost all of if don’t my get own us. out going my one to lose fact, exception, shortest with am investment.’ I’m the on my resident particular the shortest All right. THE COURT: Thank you the street. end of being candid with me. put to him by

To a the court question witness, Another Gladfelter, Valeria (206a-07a): replied Heath member Human Rela- problem it THE COURT: Is a there —I Commission, tions testified about racial in- Kearns said it think Mr. was a device— early in the cidents 1970s. then She said ordinance, is, is it a problem that this (231-33a): affecting minority property values where able you Were Q. gen- ascertain a thought get it was going to you people community sentiment Willingboro eral in you? a question, Is that fair away from respect to the racial with situation and its number one? relationship to the real estate for sale think fair THE WITNESS: I it’s a signs? If I can

question. explain a little bit? Yes, I so. A. think Yes. THE COURT: Okay. Q. now, Right over THE WITNESS: what is that sentiment that you And have years, experienced few we last able to observe? were property in an increase values. In the People expressed concern on seeing A. people who papers of most read the minds signs numbers large sale that follow, or years last three four would neighborhoods undergo rapid racial values have not in- property our been change, and was a this cause of worry to great at a rate as creasing property them. neighboring other values in towns. Peo- expressed per- added this concern She continuously say, buy ‘You can’t a

ple Rights the Human suaded Commission $30,000 any in house for town but prohibition of “For recommend Sale” or Willingboro.’ can in If you that house community. on houses in “Sold” in or only was Cinnaminson in Moores- testimony of The Alexander W. Porter and town, it a move mile across the line Lyght, Rev. Ernest Shaw both members $40,000. Westampton, over Commission, Human Rights of the corrobo- mean THE COURT: You that was that of Mrs. One rated Gladfelter. must thing? general great significance attach fact all true Because that’s THE WITNESS: consistently defense witnesses testi- general feeling. that was the any town intended of Ordinance fied for this was And the reason no one want- Township’s 5-1974 to stabilize the No. know, you houses. You buy ed to when my balance. racial view factual owner, whether property are a the sales by other than that drawn conclusion not, you or going general court would be clearly district erroneous. homes in the community. (164a). court conclusion the did draw Certainly the (165a; 172a): testified also erroneous. But utter disre- clearly Evans not imposed review think, two, standard of going back gard Q. about I 52, Fed.R.Civ.P., Rule ma- you court were familiar with the years, this three disingenuous process of selec- situation jority, Medford Lakes estate real omission, through sifts the record respect posting signs or not? tion with findings justi- its own to construct it, right. below very familiar with I am A. result. On this record predetermined fy a post signs? Q. they Can can properly tribunal hold appellate no They cannot. A. respecting court’s conclusion district there many black families are Q. How intended purpose in enact- Council’s Town Lakes? Medford “(1) completely No. 5-1974 ing Ordinance my knowledge, not one. I A. To evidentiary support of minimum dis- devoid family of the first Jewish know credibility, (2) hue of some bears playing great protest. in under moved relationship the supportive rational recent? Q. And that’s Dinan, Krasnov v. evidentiary data.” years ago, A. About two I believe. (3d 1972); Aldisert, Cir. R. F.2d I Q. And believe that back about Process 690-92 The Judicial years ago, you impressed three opinion completely inverts re- majority way Medford Lakes handled their appellate roles trial and spective transactions; you? weren’t real estate courts, and is instance of ad hoc decision I impressed with Todd A. No. making. way he handled it. was Realty, LIKELY THE THE IMPACT OF II. impressed way with the had ORDINANCE. WILLINGBORO integration, integration. lack of their Q. they still have And that? majority any signif- refuses attach They district certainly court’s conclusion that icance A. do. of Ordinance No. 5-1974 is to

the effect Q. prohibit signs? still And purchasers home prospective to local steer They certainly do. A. brokers, who estate turn real property they in the selective wish very Q. that been used in Has Medford potential purchaser. urges It a that show keep Lakes to minorities out of Medford is unsup- court’s conclusion district Lakes? record evidence. ported by Manifestly My A. salesmen have been asked: “Is is no such absence of here. evidence there black? out person bring Don’t him Mellman, William a real estate Co-plaintiff here.” an office Willingboro, with outside broker Q. Okay. thirty approximately percent testified now, it back bringing In to his office from prospec- inquiries of the home, prohibition of the signs, originated when a prospec- purchasers tive opinion community your desired a “For on a buyer sign viewed Sale” tive prevent in order minorities from this (135a). liked. Defendants’ property he into town? moving Evans, a Willing- broker based in witness A. No. boro, very happy his firm was testified Q. sense on ra- What was maintaining 80/20 white/non-white (160a). He this? community. mixture cial testified since the ordinance was that,

also I if I THE WITNESS: think acquired good “a adopted percent Honor, have, he instance, I may, you market in Willingboro than my more personally, sales a retired [he] seven ago,” and that year increase military had been all over the coun- —-We’ve diversion of sales from an purchased resulted homes ourselves in try. We’ve display broker unable to its We it’s Willingboro. greatest out-of-town think found in the place country. against any we ever person group And in the sale of to do is all we want maintain a stability, Willingboro patently residences”6 is contra because we have more Willingboro Again, pro dicted record below. I in any than we found other town. And appellate process the distortion of the test they feel that with this sign ordinance majority by which substitutes its own now, given they’ve been the opportunity for those of the findings district court.7 compatible to work with real estate bro- III. THE GOVERNING LAW.

kers under the multiple listing service doing who are above board job ethical fact, findings Guided the district selling real estate. concluded that Ordinance No. 5-1974 court regulation speech in unlawful der- was a paraphrase In Evans testified that in Med- rights of first ogation amendment and an brokers, Lakes the local ford with an assist right burden on the sign ordinance, unconstitutional from the maintained zero possible purchasers home for minorities.5 travel denied quota Willingboro, to first-hand assist, knowledge access Will- similar the local brokers will be real estate market. The ingboro majority to maintain percent satisfied a 20 quota. these arguments addresses constitutional The uncontradicted evidence demonstrates that the and concludes ordinance suffers ordinance enhanced the com infirmity. For constitutional the reasons position of the petitive local brokers in the in Part IV of the dissenting opin- set forth market; that brokers were capable of ac ion, disagree with the majority’s analysis tion directed toward excluding minorities these issues. from residence in Willingboro; in a neighboring community such action was simpler But there a much and more effective; completely and that since the analysis compels direct affirmance of Willingboro ordinance adopted judgment “[w]e below. The intended representing still a straight about 80/20 of the ordinance is to discriminate minority to white seller and buyer, both by “stabilizing” minorities racial non- just maintaining balance, sides a perfect population Willingboro white more actually we’re very happy.” (160a). percent. than 20 This is not affirmative demographic trend observed between to overcome the past action effects of dis- words, crimination, has been but is invidious discrimination The majority’s arrested. declaration that pernicious sort, of the most against a dis- “no evidence in there is record of insular minority crete and seeking fulfill- discrimination, intended, actual racial or the ment of American Dream of owning a task, majority Majority me majority takes 5. detects a 7. The fatal flaw in the dis- Opinion 27, adverting “presumption perfidy.” at to this Majori- 803 n. for of trict court’s testimony Medford about Lakes. Of course the ty Opinion majority also faults at 795. The Lakes’ similar Medford making fact that assumption court the district for “no purpose perpetu- unscrupulous both the effect of might, had that realtors in the ab- segregation only ating marginally pro- ordinance, is racial engage opposite the sence of in an relating adoption discrimination, facts to the e., bative of of Will- of racial form i. ingboro suggest ‘blockbusting’.” 5-1974. But it reveals, Ordinance does however, The record facially may a neutral law that behind lurk “presumption the perfi- district court’s that the of sinister of motives. Where it dy” most is shown overwhelming body was based on an of particular kind contrast, of ordinance can be majority a In fact. cites no record pretext for has been used as a racial discrimi- upon presumption which a evidence of block- nation, upon it is incumbent courts to Moreover, examine busting majority can be based. closely underlying adoption. motives A court points correctly Congress already out that has cannot, majority done, Majority as the has against legislated practice, 42 U.S.C. 803-804, Opinion reality at don blinders to 3604(e), regulation un- appear so no local would § pretext condemning practice der the of of necessary event, appropriate. any if even In looking every for a racist under bed. may incidentally regulate the ordinance patently illegal legitimize cannot conduct Majority Opinion discriminatory purpose. at 803. 812 legislative This is a classic ex basis of motive trace back to suburbs. in the

home Cer racial discrimination. jure Marshall’s admonition of Chief Justice ample de on its mani Peck, which face 87, 130, tainly an ordinance 10 U.S. Fletcher Cranch] [6 quota maintain a racial purpose 162, (1810), point a 176 of view fested 3 L.Ed. facially unconstitu eclipsed by more recent events. has been are facially neu statutes But tional. is too Certainly it late in the day urge held been to violate have nevertheless tral will eyes federal courts close their they clause if are in protection equal pernicious legisla manifestations of patent applied discriminatory pur for tentionally motive, or they even that will not tive 356, Hopkins, 118 6 Wo v. U.S. Yick poses. legislative for more backwaters search Moreover, 1064, (1886). 220 30 L.Ed. S.Ct. Indeed, currents. judicial review of subtle has jure Court found de dis Supreme compelled by the Su legislative facially which are statutes crimination test tri-partite Court’s establish preme adopted but which non-discriminatory See, g., cases. e. Meek v. Pit ment clause discriminatory legislative result as the 349, 358, 362-63, 421 U.S. 95 S.Ct. tenger, See, g., County e. Griffin v. School motive. 1762, 227, 1753, 1759, 217, 44 L.Ed.2d 230 218, 1226, Board, 84 377 U.S. S.Ct. Where, here, pur a as evidence of (1964); Lightfoot, Gomillion v. L.Ed.2d “stabilizing” popula the non-white pose S.Ct. L.Ed.2d 110 tion in the advanced (1960).8 through their witnesses as defendants own ordinance, expressions adopting Although Supreme we the reason Where, here, disinclination review laws on the it. ignore Court’s as a discern- cannot Thompson, 403 U.S. argued strenuously Palmer v. S.Ct. Petitioners a (1971), is not to the L.Ed.2d con- possible safety city’s to ensure motivations equal protection trary. case chal- In that money cannot validate save an otherwise lenge City action was mounted of the proposition impermissible state This action. Jackson, Mississippi, closing for ra- Council course, is, true. Citizens not be com- public swimming pool. reasons cial forgo rights pelled their constitutional be- action, the council’s sustained im- Court pacted public hostility fear officials or desire cause equally upon blacks and whites. The money. But issue here is wheth- to save language in Griffin and admitted Court being citizens in Jackson are er black denied suggested inquiry legis- that an into Gomillion rights city constitutional when the their equal protection relevant for motive was lative public pools to black and white closed distinguished by saying purposes but them Nothing history language or the alike. cases was those on the actual the focus Fourteenth Amendment nor in enactments, upon the moti effect prior persuades closing cases us that the our led the States to behave as vation which pools swimming to all its the Jackson Griffin, supra, discussed did. State pro- equal a denial of ‘the constitutes citizens perpetuating segregated public in fact laws.’ Id. at tection system by financing segregated ‘pri school (citations omitted). at 445. 29 L.Ed.2d And in vate’ academies. Gomillion Ala Thompson holds thus that where Palmer v. Legislature’s gerrymander bama proof Tuskegee virtually is a failure of discrimina- there excluded all boundaries voting classification, legislative tory Negroes town act elections. effect of Here legislative judicial that Jackson indicates once the record examination motive in- public pools swimming segregated ran even appropriate because if a hostile motive pools by public now maintained not, that no proved that absence of Moreover, city. there is no evidence in effect, equal suffice to violate the evidence city that is now this record to show where, (and But protection clause. here opera covertly aiding maintenance and Griffin), challenged enact- in Gomillion only. pools private tion of which are in name discriminatory a demonstrable im- has ment affecting blacks It no state action dif shows proof prima pact, makes of racial animus out a 225, ferently from whites. Id 403 U.S. at equal protection Wright case. Cf. v. facie 1945, 29 L.Ed.2d at S.Ct. at 445 . City Emporia, 407 U.S. of the Council Thompson is Palmer v. not inconsistent with 2196, 2202-03, 461-62, 92 S.Ct. L.Ed.2d legislative scrutinization of motive in this (1972). 60-61 para- apparent is from the next This case. graph opinion: Court’s discriminatory impact anticipa exception can be to the first ible amendment. The Chrestensen, by operation of the is Valentine v. challenged leading ted enact case ment, grant we must U.S. against relief S.Ct. 86 L.Ed. 1262 These two liberty. I am lines of authority, threat ana- completely satisfied quite distinct, are discussed in the lytically the case made out plaintiffs in the majority opinion in a manner which blurs below. court Ordinance No. 5-1974 is in salient differences between them. Nei- equal utter conflict protection however, separately together, nor do ther the fourteenth clause of amendment and is support the conclusion that this ordi- null and void.9 withstand first can amendment scru- nance tiny. IV. THE MAJORITY LEGAL the majority’s not share belief that I do ANALYSIS. “incidental limitations” cases are at all the majority Since declines to acknowl- to the facts at hand. The common apposite edge the obvious —that Willingboro in unites this line of authority bond that adopting the ordinance intended to facili- paramount governmen in each case a against tate discrimination blacks —it must regulating non-speech interest existed tal necessity deal with issues which I would justified restraining “speech” in an not reach. Since it does so I am con- inevitable, albeit unintended inci and hence register my strained dissent from its dental, however, case, manner.11 In this treatment. upon hardly dig speech can the shackle incidental. The cardinal

nified as censorship 5-1974 of Ordinance Speech Free (A) is direct message. Its effect homeowner’s The district court held that ordi It is not an incidental re purposeful. nance intended to censor the message majority seems to acknowl straint. of the homeowner desiring to home, sell his effect the corrosive Ordinance edge having a censorious purpose violated intended, “speech” upon 5-1974 No. the first amendment. The majority holds incidental, urges that the “limi when district court erred. In so holding upon speech on noncommercial falls tation separate it relies on two lines of authority. ‘message’ invisible or com unspoken first, typified by United States v. insufficient to over munication of nature O’Brien, 391 U.S. S.Ct. on First Amend public interest ride (1968),10 L.Ed.2d 672 permits an incidental Notwithstanding Mar grounds.”12 ment abridgment of first amendment rights by a medi McLuhan’s observation that the shall governmental valid regulation of “non- message, majority cites no um is the elements speech” of conduct, as long as the position that an authority support of infringement goes no further than is re regulates the content rath for the quired accomplishment of the “non- presence sign imposes mere er than governmental speech” purpose. The second which can be characterized as a restraint upon cases line of which the majority relies permissible for first or otherwise incidental involves so-called “commercial 5- speech” Ordinance No. purposes. amendment 9. Neither in the district court nor sustained the convic- here the Court did the In O’Brien registrant urge plaintiffs, Service who a Selective defendants tion of both of symbolic protest his draft card in a injury fact, burned whom have suffered some lack Vietnam War. standing discriminatory to assert effect of Township the ordinance. Nor does the contend See, O’Brien, g., supra; e. United States v. proper it is not a defendant in this action. 566, 586-87, Goguen, Smith individual, Daly, An Gerald is in event 1253-54, 1242, 605, (1974) 39 L.Ed.2d 619 clearly proper a defendant since he has the J., (White, concurring). duty enforcing the ordinance. Majority Opinion

12. at 795.

814 power, interpretation zoning politi broad analogous prohibiting to a law

1974 have de- point litigation I in this advertising While can by billboard. for at cal Willingboro even hinted uphold that no court would a only suppose fendants drawn,13 on Euclidean could be validated pointedly morally I am so statute none would it as but an grounds. sustain certain speech. limitation on

incidental free message was censorship of Since effect of Ordinance majority purpose I believe that can do intended Nor found, 5-1974, if comforting support justification must be for its untenable find No. the mes- placing such cases as St. Louis authorities anywhere, thesis in Poster Louis, amend- City Co. v. of the first Advertising pale 249 sage beyond St. 269, 274, suggests the “commer- (1919) majority 39 63 599 S.Ct. L.Ed. U.S. ment. fills bill. That Advertising doctrine Corp. Borough speech” and United v. cial Raritan, 144, digni- be so (1952).14 doctrine, longer 11 N.J. 93 362 if it can A.2d Chrestensen, general held v. regulation in Valentine fied, originated Those cases advertising singu- is a opinion of outdoor Roberts’ supra. of the business Justice compass cryptic of the treatment police pow abrupt state larly within amendment, exception to the first cases offer neither a whit nor a er. Those supposed police support- for the exercise of the devoid of references jot support completely 1942, accomplish racially authority. a discriminato It was handed down power year for first amendment ry hardly vintage end. a Opelika, also v. jurisprudence. Jones See the majority suggest, I also understand 584, 1231, 86 L.Ed. 1691 62 S.Ct. 316 U.S. implicitly, or- at least per 319 (1942), rehearing, rev’d curiam exercise municipal valid of the dinance 103, 890, (1943). 1290 63 S.Ct. 87 L.Ed. U.S. precise What in- zoning power. limitations uncertain, power but it may here in this be inferred that the By 1943 Court power that the having thoughts itself broad in second be inferred about the wis Boraas, of Belle scope. Village Chrestensen, Terre v. See Valentine v. ex dom of 1536, 1, 94 39 797 extend 416 U.S. S.Ct. L.Ed.2d declined to the case pressly beyond Nevertheless, zoning (1974). municipal pamphleteering context. See Murdock 105, from the police power, 111, derives state power Pennsylvania, 319 U.S. 63 v. S.Ct. Co., 870, v. 874, 1292, Euclid Ambler 272 Realty (1943); see U.S. 87 L.Ed. 1297 Martin 365, 114, 141, 142 Struthers, 71 L.Ed. (1926), 1, 47 S.Ct. 319 U.S. 303 and is n. 63 v. S.Ct. subject qualifications 862, 1313, (1943); to all the v. reg- of that L.Ed. 1316 Jamison 87 672, 417, 669, I ulatory authority. Texas, 413, know of no case where 318 U.S. 63 S.Ct. 869, (1943). enactment legislative purposefully that is 873 Thereafter 87 L.Ed. discriminatory upheld speech exception has been as a more or less legiti- commercial 1973, vine, were, police as it until power, mate exercise whether on the withered Pittsburgh in the regulation Pittsburgh it occurs of outdoor Press v. adver- Co. when Relations, supra, as discussed tising, zoning or in a on Human 413 U.S. Commission ordinance, 2553, 669, or in 376, 385, some other context. 37 L.Ed.2d See 93 S.Ct. Boraas, Belle v. Village supra, Terre v. Valentine (1973), Justice Powell cited might regard at U.S. at S.Ct. 39 L.Ed.2d at with what some Chrestensen token, By Bigelow Virginia, same know of no v. approval. case as tacit justified has ever the use 44 L.Ed.2d 600 95 S.Ct. for a zoning power however, forbidden the Court reversed a con (1975), making amendment. The it a per- the first defendants state statute under a viction recognize the haps implausibility of matter encour- publish any such misdemeanor Broadcasting Sys., 13. Cf. Columbia Inc. Majority Opinion n. 13. Comm., 94, 128-30, Nat’l Democratic U.S. 2080, 2099, 2100, L.Ed.2d 798-

815 to have another an abortion. Since aging seem, then, it Bigelow v. Vir- newspa- was the editor aof the defendant to rest ginia has laid once and the for all published paid advertisement per Valentine notion that v. Chrestensen placed Clinic, York by a New Abortion the placed advertising in the category commercial speech issue squarely was commercial speech unprotected along with fighting Writing for seven members of presented. words, v. Chaplinsky New 315 Hampshire, Justice Blackmun said Valen- Court 568, 766, 62 (1942), S.Ct. 86 L.Ed. U.S. 1031 : v. Chrestensen tine States, v. Roth United U.S. obscenity, 354 1304, 476, 1 (1957), 77 L.Ed.2d 1498 S.Ct. holding distinctly a limited But libel, v. Welch, Robert Inc., Gertz 418 U.S. [banning the ordinance one: handbills] 323, 2997, 94 41 (1974) S.Ct. L.Ed.2d 789 upheld regulation as a reasonable was incitement, Ohio, Brandenburg v. 395 U.S. manner in which commercial adver 444, 1827, 89 23 S.Ct. L.Ed.2d 430 fact tising could distributed. The majority may otherwise, think but I particular banning the effect it had recently-expressed find views of seven does not mean that Chrestensen handbill Supreme Court au- members more authority for proposition that all See Terminal-Hudson Elec- thoritative. regulating statutes commercial advertis tronics, Department v. Inc. of Consumer are immune from constitutional chal 6, Affairs, F.Supp. (C.D.Cal. 407 1075 Jan. lenge. obviously The case does not sup Millstone 1976); see also v. Re- O’Hanlon sweeping port any proposition that adver Inc., (8th 528 F.2d ports, 1976); 829 Cir. tising unprotected per se.6 Virginia Council, Citizens Consumer v. Inc. 6 Douglas, Mr. Justice who was a Member of of Pharmacy, Board 373 683 F.Supp. State Court when Chrestensen was decided and (E.D.Va.1974), prob. juris noted, joined observed, opinion, who has “The ruling was casual almost offhand. And it has 1389, 971, (1975) 43 95 L.Ed.2d 650 S.Ct. survived not reflection.” Cammarano v. Unit- 74-895). (No. States, 498, 514, 524, 358 ed U.S. S.Ct. 3 [79 Having taken Valentine v. Chrestensen (1959) opinion). (concurring 462] L.Ed.2d Mr. Brennan, Stewart, joined by Marshall, Justice unprotected speech category out Powell, JJ., observed, “There is some Court, while Bigelow acknowledging concerning whether doubt the ‘commercial advertising subjected could be regulation speech’ distinction announced in Valentine v. aimed, example, at preventing continuing . . . retains Chrestensen valid- City Heights, ity.” Lehman v. illegal activities, of Shaker concluded perpetration 418 6, 298, 2714, 314 n. 94 S.Ct. 41 L.Ed.2d 770 U.S. Virginia statute, as ad- applied (dissenting opinion). (1974) See also Pitts- legal activities, vertising of violated burgh Pittsburgh Press Co. v. Comm’n on Hu- Justice first amendment. Blackmun’s anal- Relations, 376, (1973) (Burg- U.S. 393 man quite to, id., thus seems close if er, J., J., ysis not identi- dissenting); (Douglas, C. at 398 id., J., (Stewart, dissenting); dissenting). at with, O’Brien, of United cal States v. Chrestensen, supra. Valentine thus 6, 2231, 819-20 & n. at Id. at S.Ct. viewed, to be appears nothing more than an at 610. L.Ed.2d of the “incidental application limitations” Blackmun pointed Justice out that But whether re- authorities. has been Pittsburgh Press not majority did rest its status, or has some duced to that additional advertising decision commercial ex content, certainly long- case cannot any ception amendment, first and in fact the majority read as er be reads it. There the holding of New York reaffirmed Times advertising exception is no commercial Sullivan, 269, Co. v. U.S. 84 S.Ct. first amendment. The state (1964) 11 L.Ed.2d for the adopt purpose a law intended advertising enjoys commercial first amend the advertising of a ac- proscribing lawful protection.15 ment intended tivity. That illegal proposal, 421 U.S. at L.Ed.2d commercial and for vanced an Pittsburgh speech stripped Press held that at 611. of its first amendment that reason question sex-segregated want ads —ad- shield. — the 5-1974, percent inquiries directly the court mitted 30 No. district Ordinance per- that it the first their 30 to 35 correctly display, held violated result from from ad- newspaper result and other amendment.16 cent (147a). according to Thus vertisements. signs evidence elimination of record the Travel to Right (B) in- a SO may produce percent reduction court, the having found The district of in- substantial numbers quiries. That require pro- ordinance was to effect by newspaper adver- generated are quiries purchasers to utilize the serv- home spective some that at least in suggests tisements brokers, estate drew the conclu- of real ices satisfactorily con- medium cases the infringed upon constitution- that it sion and real estate bro- homeowners’ vey travel. I would right Since hold al say, not to message. But kers’ ordinance involved de facto racial dis- assumes, that Ordi- majority blithely necessary rely crimination cut off operation would not 5-1974 nance areas of fourteenth amend- such esoteric purchasers large prospective numbers learning. But in fairness to the dis- ment knowledge Willing- meaningful from again I must take issue with the judge trict Moreover, market. Evans’ estate real boro Reject- treatment of the record. majority’s testimony establishes that his predicate right the factual has benefited brokerage office holding, majority says travel percent to the extent of a 25 ordinance support evidence find “We Certainly in business. this uneon- increase the ordinance burdens conclusion evidence supports the district troverted right to travel. anyone’s the tendency conclusion that court’s purchasers prospective is to force might who resort brokers “stimulate court’s ‘natural conclusion’ The district bigotry on racial prey and fear cre- right to travel rested on regarding ghettos.” perpetuate ate or belief that real estate ‘For the erroneous departure prin- from settled protest I means learn signs Sale’ appellate majori- review which ciples of were available and that homes ing what opinion represents. I would affirm the ty all signs such delivered the absence of the district court. judgment who the hands brokers buyers into unscrupulous. The fact might be inquiries come sources

70%of fact signs, the that the absence

than the same effect on as on whites

blacks, pattern fact that no

racial discrimination had existed in Will

ingboro years, for 14 go all to confirm

error in conclusion and the error

striking the ordinance herein on that ba sis.” misleading. statements are seriously

These testified that per-

Mellman where majority’s analysis stantially advanced this first same reasons 16. amendment analysis reject heavily Barrick’s from the I borrows Seventh Circuit’s therefore dissent. Realty City Gary; opinion unpersuasive. Barrick Inc. (7th 1974). Cir. 491 F.2d believe that flawed, reasoning Opinion Majority Barrick court’s for sub-

Case Details

Case Name: Linmark Associates, Inc., and William Mellman v. The Township of Willingboro and Gerald Daly

Court Name: Court of Appeals for the Third Circuit

Date Published: Apr 28, 1976

Citation: 535 F.2d 786

Docket Number: 75-1448

Court Abbreviation: 3rd Cir.