*1 COM- CO. PITTSBURGH PITTSBURGH PRESS RELATIONS ON HUMAN MISSION et al. 21, Argued June 1973—Decided 72-419. March. No. J., Court, in BkeNNAN, opinion of the delivered the Powell, J., JJ., Burger, C. Rehnquist, joined. Marshall, White, post, p. J., post, p. 397, dissenting.opinions. filed Douglas, J., *2 dissenting opinion, J., joined, filed a Stewart, Douglas, post, p. J., dissenting opinion, post, 400. filed p. 404. BlackmuN, Charles R. Volk petitioner. the cause for With argued on Ralph him the briefs was T. DeStefano.
Eugene III Strassburger B. argued the cause and filed respondents Pittsburgh a brief for on Commission Human et Marjorie Relations al. H. Matson argued the cause respondent for Organization National of Inc. Women, her on Sylvia the brief was With Roberts.* Powell opinion delivered the of the Justice Me. Court.
The Human City Relations Ordinance of the of Pitts- burgh (the Ordinance) by has been construed below Ralph and Albright, *Arthur B. Hanson Jr., filed brief for N. Assn, Newspaper urging the American Publishers as amicus curiae reversal.
Briefs urging by of amici affirmance were filed curiae Solicitor Griswold, Attorney General Pottinger, Deputy Assistant General Wallace, Solicitor Shapiro, General Hoyle, Harriet S. John P. C. Julia and Cooper, States; by Rosenberg for the United Beatrice J. Huelle Younger, Attorney California, General of Robert H. O’Brien and Boronkay, Attorneys Assistant General, Carl and Judith T. Ashmann, Deputy Attorney General, Employment for the California Fair Commission; by Practice George Kugler, Jr., Attorney General, F. Stephen Skillman, Attorney General, Assistant and David S. Litwin, Deputy Attorney General, for Jersey; by the State of New Israel Packel, Attorney of Pennsylvania, General Roy and and Yaffe Attorneys Golden, Jr., Michael L. General, Pennsyl- Assistant for vania Commission on by the Status al.; of Women et Norman Dorsen, Ginsburg, and Jeffrey Kay Ruth Bader for the American A. al.; by Civil Liberties et Union Indritz, Boyer, Phineas Elizabeth Marguerite Margaret Rawalt, Griffiths, Martha Heckler, W. and M. Donald M. Fraser American Committee, Inc., al.; Veterans et by Philip Tierney for the International Association of Official J. Rights Agencies; Human Page and Reuss and Jane M. Picker Rita for the Fund, Women’s Law Inc. newspapers forbidding Pennsylvania as
the courts sex-designated advertisements carry “help-wanted” free employer advertiser except where columns on the decisions referral employment hiring or to make whether to decide upon sex. We are called basis speech freedoms construed violates so Ordinance as First Fourteenth and guaranteed press of the a full one, This sensitive issue Amendments. is critical in which arises the context understanding to its resolution. employ- proscribes discrimination
The Ordinance na- religion, of race, color, ancestry, ment the basis *3 part, In relevant or place birth, origin, tional sex.1 employ- be unlawful of the declares it to § 8 Ordinance upon fide a bona practice, “except where based ment the exemption Commission”: occupational certified any per- refuse to hire “(a) any employer For to any person against son or otherwise discriminate . respect hiring with . . . of . . to because sex. any or “(e) 'employer,’ employment agency For labor or to organization publish circulate, or cause any to be or published or notice adver- circulated, 'employment’ membership tisement or relating any which indicates discrimination because of . . . sex.
“(j) For or person, employer, whether employment agency or labor to aid . organization, . . in the doing any act declared to be an unlawful employment practice by . this ordinance . . .” 1For the full text of adding the Ordinance the 1969 amendment proscribed sex to the classifications, list of App. see 410a-436a. 9, October present The were initiated proceedings Women, Inc. Organization when the National Commis- Pittsburgh the (NOW) complaint filed a with Commission), (the on Human sion Relations com- charged implementing the Ordinance. (Pittsburgh Co. plaint alleged Pittsburgh the Press the “allow- Press) violating (j) § was Ordinance employers place the male or ing advertisements obviously columns, jobs female advertised do when occupational qualifications excep- not have bona fide probable tions Finding cause to believe that Pittsburgh Press Com- violating Ordinance, was' held a at mission which it received evidence and hearing, heard argument from the from in- parties and other terested organizations. Among the exhibits introduced at hearing were from clippings help-wanted ad- carried in January vertisements 4, 1970, edition of Sunday by column.2 In Pittsburgh Press, arranged many cases, the simply advertisements of the consisted job title, the salary, and employment agency car- rying the listing, while others included somewhat more job extensive descriptions.3 July 23,
On Commission issued a Decision and Order.4 It during found that carried of 248,000 total help-wanted advertisements; *4 practice its that before October 1969 towas use columns captioned “Male Help Wanted,” Help “Female Wanted,” Help “Male-Female Wanted”; that it thereafter captions used the “Jobs —Male Interest,” “Jobs —Female Interest,” and “Male-Female”; and that the advertise 2These exhibits reproduced are App. in 299a-333a. 3 For examples ads, these want see the Appendix opinion, to infra, at 392-393. 4The full text of the Commission’s Decision and Order is set in forth Appendix the to the Certiorari, Petition for at la-18a. according columns respective in the placed
ments were by ad either volunteered wishes, advertiser’s to the Pittsburgh inquiry to response in or offered vertiser (e) of § concluded first The Commission Press.5 agencies, employment employers, forbade the Ordinance to advertisements submit organizations and labor held It then columns. sex-designated in placement the adver (j), aided § violation of Press, in Pittsburgh sys sex-designated classification maintaining tisers rejecting considering and specifically tem. After Amend the First violated the Ordinance argument cease Pittsburgh Press to ordered the Commission ment, a classification and to utilize such violations and desist was affirmed This order system reference to sex. with no Pleas.6 by the Court of Common respects in all relevant scope of Commonwealth Court, appeal On Press to allow to Pittsburgh order was narrowed jobs carry columns for sex-designated advertisements exempt provisions from the antidiscrimination pointed opinion, out in that court’s Ordinance. As apply employers to five Ordinance does not of fewer than city persons, employers to outside the Pittsburgh, religious, fraternal, organiza- or sectarian charitable, tions, employment nor it in domestic service apply does jobs or in for which the Commission has certified a bona occupational order exception. fide The modified bars employment advertising “all reference sex column specifically The Commission found that: permits “5. The the advertiser to select column within which its advertisement is to be inserted. column,
“6. When advertiser does not indicate a the Press job asks the advertiser whether wants male or female for the jobs and then the advertisement interest or inserts —male jobs accordingly.” Id., at 16a. interest column —female id., at 19a. See
381 Ordinance, be said except may exempt as under headings, by said may exempt as Commission.” as certified 161, (1972). 2d 470, 4 Pa. 287 A. Commw. we Pennsylvania The Court denied and Supreme review, granted to decide whether, certiorari Amend- modified order First contends, the violates ment its editorial U. restricting judgment. S. We affirm. (1972).7
II There the freedoms is little need to reiterate that speech and of the rank our press among most cherished Black it: “In First put liberties. As Mr. Justice the Founding press the free gave Fathers protection it must to fulfill in our have its essential role
7 Pittsburgh argues Press also that the Ordinance violates due process sex-designated in that there is no rational connection between headings column employment. and sex discrimination in draws It attention to a disclaimer beginning runs at of each of the “Jobs —Male Interest” and “Jobs —Female Interest” columns: “Notice to Job Seekers” arranged
“Jobs are under Male and Female classifications for the convenience of our This is jobs gen- readers. done because most erally appeal more persons of one sex than the Various other. laws local, state, federal, prohibit discrimination ordinances — employment because of sex sex occupational unless is a bona fide requirement. Unless specifies the advertisement itself one sex or other, job seekers assume should the advertiser will con- applicants sider compliance either sex in against the laws discrimination.” It dispose suffices to by noting this contention the Commis- sion’s recognition commonsense sup- the two are connected is
ported by present evidence in the App. record. See 236a-239a. See United, Lines, also Hailes v. Air (CA6 1972). F. 2d Guidelines on Discrimination Equal Because of Sex the Federal Employment Opportunity Commission reflect similar conclusion. See 29 CFR 1604.4. §
382 States, 403 Co. Times v. United York New
democracy.” dura- The opinion). (concurring 717 (1971) U. S. the upon hinges system self-government of of bility our freedoms. of these preservation potent the most public opinion is informed “[S]ince suppres- the upon misgovernment, of all restraints by a afforded publicity the of abridgement sion or than with otherwise regarded be press free cannot as one press stands A free concern. ... grave government the between interpreters the great of fetter is to it be fettered To allow to people. the 297 Co., Grosjean v. American ourselves.” (1936). 233, 250 U. S. in the de- theme emphasis accorded this repeated the narrowness to underline serves this Court
cisions
press
principle
the
the
exceptions
recognized
inquiry
Our
may not
the Government.
regulated
order falls
challenged
be whether
must
therefore
exceptions.
within
of these
identify with
important
however,
outset,
At
This
alleged abridgment.
care the nature of the
some
law
challenged
arguably
dis-
is not
case which
viability.
by undermining
press
ables the
its institutional
from an
of small
press has evolved
assortment
As the
pub-
printers
aggregation including large
into a diverse
empires
well,
parallel growth
and com-
lishing
plexity
economy
have led to
regulatory
extensive
from
of a
legislation
publisher
which “[t]he
NLRB,
immunity.”
special
has no
Press v.
Associated
(1937).
S.
132
Accordingly,
U.
this Court has
upheld application
press
to of the National Labor
ibid.;
Act,
Relations
Fair
Labor Standards
Mabee
Act,
Publishing Co.,
v. White Plains
U. S.
(1946);
Walling,
Publishing
Oklahoma Press
Co. v.
But no suggestion is made in this case that Ordinance passed any was purpose of muz- or zling curbing press. Nor does Pittsburgh Press argue that the Ordinance viability9 threatens its financial impairs or significant way publish its ability to and distribute its newspaper. In any such a con- event, tention not supported would be record.
Ill
In a limited way,
the Ordinance
however,
as construed
does affect the makeup of the help-wanted section of the
newspaper. Under the modified order, Pittsburgh Press
will be required to
present
abandon its
policy of providing
8 See
v. Opelika,
also Jones
(1943);
319 U.
Murdock v.
S.
Pennsylvania,
(1943).
“We respects purely government no such restraint on *8 Id., 54. advertising.” commercial at Subsequent demonstrated, however, have cases by the mere fact that speech is not rendered commercial In New York Times Co. v. it relates an advertisement. Sullivan, city a official of Mont- (1964), U. S. 254 gomery, brought against a libel action four Alabama, clergymen and the New York Times. The names of the clergymen appeared had in an carried advertisement, police in the action Times, criticizing against directed members of the In rights holding civil movement. political advertisement was entitled to the degree protection ordinary same of speech, the Court as stated: paid
“That for Times was publishing ad- immaterial vertisement this connection as are sold.” newspapers the fact books Id., at 266. Ginz California, (1959); Smith 361 U.
See also S. If burg (1966). v. United U. S. newspaper’s profit aspects all determinative, motive were operations its the selection of news stories —from subject position reg the choice editorial be —would it they ulation if could were be established that con ducted a view toward increased sales. Such basis regulation clearly for would be incompatible with the First Amendment. critical feature advertisement Valentine
v. Chrestensen was that, view, did no Court’s more than propose a commercial transaction, sale admission to a submarine. In New York Times v.Co. Sullivan, Mr. Justice Court, found the Brennan, easily Chrestensen advertisement distinguishable: “The publication here was not ‘commercial’ advertisement in the sense which the word was used in It Chrestensen. communicated information, expressed opinion, recited protested grievances, claimed abuses, and sought financial support on be- half of a movement whose and objectives existence are matters of public the highest interest and con- cern.” 376 U. at 266. S., In the crucial respects, the advertisements in present record resemble the Chrestensen rather than the Sullivan advertisement. expresses None a position on whether, as a matter of social policy, positions certain ought to filled members of one or the other *9 nor sex, does any of them criticize the Ordinance the Commission’s enforcement practices. Each is no more a pro- than posal of possible employment. The advertisements are thus examples classic speech. commercial Chrestensen contends Press Pittsburgh
But upon the be must case in focus this as the applicable, to newspaper by judgment of editorial exercise upon its than rather advertisement place to where finding a made The Commission content. commercial every case to defers of fact in which a the column regarding wishes advertiser’s true, how- nonetheless It is placed. want ad should whether judgment make does a newspaper that the ever, We column. select the advertiser to or not to allow the judg- degree whether therefore consider must a respect to with mental discretion for distinguishable, advertisement purely commercial from the con- analysis, purposes of First question Or, put itself. of the advertisement tent respect newspaper with of the is the conduct differently, protection entitled to a want ad employment to the Court held in Amendment which the under the First a advertiser? was not available commercial Chrestensen newspaper’s a edi- circumstances, least, Under at some advertisement judgments torial connection and, take on the character the advertisement those cases, scope newspaper’s pro- of the First Amendment may tection be affected the content of the advertise- In ment. the context a libelous advertisement, example, this Court held has that the First Amendment punishment does not a newspaper shield from for libel when with publishes falsely defamatory actual malice it Sullivan, advertisement. New York Times Co. v. supra, requisite at 279-280. Assuming state of mind, then, nothing newspaper’s editorial decision accept an advertisement changes the character of the falsely defamatory statements. The newspaper may not defend libel suit on the ground falsely defama- tory statements are not its own.
387 com- remains advertisement a commercial Similarly, some at under media, in the hands of the least mercial Acting Co. Broadcasting v. Capital In circumstances.10 General, 333 aff’g 1000 (1972), 405 U. S. Attorney summarily affirmed this Court Supp. (DC 1971), F. 582 constitutionality sustaining court a district decision prohibits the electronic media § of 15 U. C. S. District carrying cigarette from advertisements. advertising Court there found that the should be treated though the First Amend- speech, as commercial even ment mounted rather challenge was radio broadcasters peculiar than advertisers. Because of character- Broadcasting media, istics of the electronic National Co. States, Capital United (1943), U. 226-227 S. Broadcasting dispositive is not here on the ultimate question of the constitutionality the Ordinance. Its significance lies, in its rather, recognition that the exer- cise of kind this of editorial not judgment necessarily does strip commercial advertising its commercial character.11
As present case, for the persuaded we are not either the to accept decision a commercial advertisement which the advertiser directs in a placed to be sex- designated column or actual placement there lifts the newspaper’s actions from the category of commercial speech. By implication at an least, advertiser whose appears want ad in the “Jobs —Male Interest” column 10In Head v. New Board, Mexico (1963), 374 U. S. upheld injunction Court prohibiting a newspaper and a radio carrying optometrists’ station from advertisements which violated New Mexico law. But because the issue had not been raised in courts, the lower this Court did appellant’s consider First Id., challenge. at n. 12. 11See New York State also Broadcasters Assn. v. United (CA2 414 F. 1969), denied, 2d 990 cert. (1970) U. S. 1061 (refusing to strike down a ban on promoting lottery). broadcasts de- hiring in his women against discriminate likely heading column a sex-designated Nothing cisions. *11 the want from designation sufficiently dissociates severable placement it to make beneath placed ads ads them- want from purposes First essentially the conveys combination, The selves. inis ad, want discriminatory overtly as an message same statement. commercial integrated an effect practical package if argue toon goes Press speech, commercial placement is of advertisement level higher be accorded should speech then commercial progeny would and its Chrestensen than protection of information is as exchange of that the Insisting suggest. any in other, realm as in the commercial important the distinction abrogate have us newspaper here would speech. and other commercial between in may be other the merits of this contention Whatever Discrimination unpersuasive it in this case. contexts, is is activity, only not commercial employment activity We illegal commercial under the Ordinance.12 constitutionally no that a could have doubt ad publish proposing be a want sale forbidden prostitutes. Nor would the soliciting narcotics or result be if were indi- different the nature the transaction by placement captioned cated under columns “Narcotics for Sale” and “Prostitutes rather than Wanted” stated four within the corners of the advertisement. be illegality may this case less but we overt,
see no difference in here. principle discrimination Sex in nonexempt employment has illegal been declared under
12 Note, Expression Context, See Freedom of in a Commercial Capital Broadcasting 78 (1965). L. Harv. Rev. 1195-1196 Cf. Mitchell, Co. Supp. 582, (D. 1971) 333 F. 42 (Wright, J., 593 n. C. dissenting); Camp-of-the-Pines, Co., Inc. v. New York Times 184 (1945). Misc. N. 2d Y. S. here. provision challenged (a) Ordinance,
§ of the any employer, forbids (e) And of the Ordinance § publish or labor union to or cause employment agency, any sex dis- published “indicating” advertisement Moreover, This, too, unchallenged. crimination. specifically it is unlawful Commission concluded employment practice for an cause an em- advertiser to ployment published advertisement to be a sex- designated column. (j) only provision
Section 8 Ordinance, which Pittsburgh was found to have violated and only provision attack under makes it unlawful here, person for “any ... to aid doing ... act declared to employment be an unlawful practice *12 this ordinance.” The Commission and the courts below practice concluded that want placing ads for non- exempt employment in sex-designated columns did indeed employers “aid” illegal preferences. indicate sex The as advertisements, by embroidered their placement, sig- naled that the advertisers were likely to an illegal show sex preference in their hiring Any decisions. Pirst Amend- ment interest which might by be served advertising an ordinary commercial proposal and which might arguably outweigh governmental interest supporting the regu- lation is altogether absent when the activity commercial itself is illegal and the restriction on advertising is inci- dental to a valid limitation on activity. economic
IV It is suggested, in the brief of an curiae, amicus apart from other considerations, the Commission’s order should be prior condemned aas restraint on expression.13 As described Blackstone, protection against prior 13Brief for Curiae Newspaper Amicus American Publishers Associ ation n. 32. of admin- only system a law barred common at
restraint censorship: istrative aof power restrictive press subject the
“To and since before both formerly done, was licenser, as of senti- freedom all subject is to ... revolution, him make and of one man, prejudices ment to all controverted judge arbitrary infallible government.” religion, learning, points *152. Commentaries Blackstone, W. this narrow beyond boldly stepped
While the Court
(1931),
Minnesota,
S. 697
283 U.
in Near
doctrine
publication
further
injunction against
an
striking down
never
it has
public nuisance,
found to be
Lorain
See
impermissible.
injunctions are
held that all
The
States,
143 (1951).
U.
United
S.
Journal Co. v.
communication
is that
special
prior
of a
restraint
vice
exces
directly
inducing
either
suppressed,
will be
deter
adequate
speaker,
before
caution
sive
unprotected by
the First Amendment.
mination that
pro-
arguably
present
endanger
order does not
on a continu-
speech. Because the order
based
tected
ing
repetitive conduct,
course of
this is not
case
speculate
which the
asked to
the effect
Court is
New York Times
v. United
publication. Cf.
Co.
(1971).
order is clear and
Moreover,
14The argues dissent of The Chief Press Pittsburgh Justice danger being in of “subject summary punishment to for con legal guess.” Post, having tempt 'unlucky’ for made an at 396-397. power summarily The Commission without punish contempt. to When it Commission concludes that its violated, order has been “the
V our nothing holding gov- We allows emphasize any publish ernment to forbid to at level and distribute on the Ordi- commenting advertisements or nance, practices Commission, of the enforcement propriety preferences employment. Nor, sex jortiori, does our decision restriction authorize whatever, whether of content or on stories layout, commentary colum- originated by Pittsburgh its Press, or its nists, contributors. reaffirm contrary, On we unequivocally protection judg- afforded to editorial expression ment and to the free on these and views other issues, only however controversial. We hold narrowly Commission’s modified order, pro- drawn to placement hibit in sex-designated of advertise- columns ments for nonexempt job does opportunities, not infringe the First Amendment rights of Pittsburgh Press.
Affirmed. Appendix opinion post, [For of the Court, see p. 392.] certify
shall the case and the proceedings entire record itsof to the City Solicitor, who shall invoke the aid of appropriate court to compliance secure enforcement or with the order or impose [a fine of not more than or both." Ordinance; $300] of the § Appendix But, to Pet. for Cert. fundamentally, 103a. more policy was newspaper’s allowing employers place adver- sex-designated tisements columns regard excep- without to the exemptions tions or contained in the Ordinance, not its treatment particular ads, challenged want which was complaint in the and was found the Commission and the courts below to be Nothing violative of the Ordinance. in the modified order or the opinions prohibits below relying from good faith representation of an falls advertiser particular that a job within an exception to the Ordinance. *14 COURT THE OF TO OPINION
APPENDIX Sunday Pittsburgh Press carried Among the advertisements employ- one, following submitted 4, 1970, January was column: INTEREST” in the “JOBS —MALE agency placed ment $13,000 INSTRUCTORS. ACAD. 10,000 . ACCOUNTANTS 15,000 ASS’T, CPA. ADM. 10,000 MGR. ADVERTISING 9,000 F-C. BOOKKEEPER 12,000 FINANCIAL CONSULTANT. 15,000 MANAGER. MARKETING 8,400 TRAINEE. MGMT. 7,200 TRAINEE. OFFICE MGR. 30,000 DEVELOPMENT. LAND 18,000 MANAGER. PRODUCT. OPEN MANAGER. PERSONNEL 8,400 . SALES-ADVERTISING 9,600 . SALES-CONSUMER 12,000 . SALES-INDUSTRIAL 8,400 . SALES-MACHINERY 15,000 RETAIL MGR. Paid Fee Most Positions EMPLOYMENT SPECIALISTS Bldg. 261-2250 2248 Oliver Agency Employment App. 311a. day, in the “JOBS- same agency’s advertisement
On same as follows: FEMALE INTEREST” column was $13,000 ACAD. INSTRUCTORS. 6,000 . ACCOUNTANTS OPEN AUTO-INS. UNDERWRITER. 5,000 . BOOKKEEPER-INS 4,200 . CLERK-TYPIST 6,000 DRAFTSMAN . 6,720 KEYPUNCH D. T. 4,500 KEYPUNCH BEGINNER. 4,900 . PROOFREADER RECEPTIONIST —Mature D. T.... OPEN 6,300 EXEC. SEC. 4,800 . SECRETARY Equal SECRETARY, Oppor. 6,000 5,400 SECRETARY D. T. TEACHERS-Pt, day Time. 33. 5,000 . TYPIST-Statistical Paid Most Positions Fee EMPLOYMENT SPECIALISTS Bldg. 2248 Oliver 261-2250 Employment Agency Ibid. *15 offering job descriptions was the
Characteristic of those fuller advertisement, following carried the “JOBS —MALE INTEREST” column:
STAFF MANAGEMENT TRAINEE $12,000 TO you If background manage- have had the ment of small business then could be the you stepping waiting stone have been for. your outlay. You will be own boss with no cash today. Call or write App. 313a. Justice Burger, dissenting. Chief
Mr. Despite only the efforts to the narrow Court's decide presented question in this case, holding represents, the ame, enlargement of the disturbing "commer- speech” Chrestensen, cial doctrine, Valentine U. (1942), S. 52 and serious encroachment of press freedom guaranteed by the First Amendment. It also launches the courts on I perceive what path treacherous layout of defining what and organiza- tional newspapers decisions of “sufficiently are associ- ated” parts “commercial” papers toas be constitutionally unprotected and subject therefore governmental regulation. arguendo, Assuming, First permits place States restrictions on the content of commercial I would advertisements, enlarge that power to reach layout organi- zational decisions of a newspaper. claims to have decided to sex- use column
designated headings in the classified advertising section of its newspapers to facilitate use of classified by its readers. Not only ads is this purpose conveyed to the readers in plain terms, the newspaper but also explicitly cautions readers against interpreting the col- umn headings as indicative of sex discrimination. Thus, prints heading column each
before Job Seekers”: “Notice to following classi- Female Male and under arranged are “Jobs This of our readers. convenience for the fications more to appeal jobs generally is done because most laws other. Various than the of one sex persons federal, prohibit local, state and ordinances — of sex unless because employment discrimination *16 requirement. Unless occupational fide a bona sex is or the specifies one sex itself advertisement the that advertiser job should assume the other, seekers compliance in of either sex applicants will consider discrimination.” against the laws clearly Press has my way thinking, Pittsburgh To adopt- in protected journalistic discretion its acted within classified advertisements. arrangement its ing this “Notice Job light newspaper’s of the to Especially for the to as it does, it is unrealistic Court Seekers,” say, “suffi- sex-designated headings the column are not ” placed from the ads beneath ciently “want dissociate[d] for placement to First Amend- make the severable [them] Ante, from purposes ment the want ads themselves.”1 In any I event, at 388. believe First Amendment the great opinions place The Court and the under stress on review finding Pittsburgh of the Commission on Human Relations that Pittsburgh “permits the advertiser to select the column finding, within which its advertisement be That inserted.” however, disprove Pittsburgh does not Press’ claim that it uses headings any event, its In column for the convenience of readers. review, acknowledges, the order under as the “does not allow Court Pittsburgh policy Press to substitute a under which it would make an independent regarding placement sex-designated decision columns.” Ante, actively Thus, newspaper at even if involved in 384. became selecting advertisement, presumably appropriate column for each prohibit the Commission’s order would still Press from using headings. column press
freedom of includes the of a right its arrange paper, the content of whether news In items, advertising, it sees fit.2 editorials, analysis, final the readers are the ultimate “controllers” no matter what excesses are indulged by even a flamboyant or press; venal that it often takes a long time system. these influences to bear fruit is inherent our
The Court’s conclusion that the Commission’s cease- order a prior and-desist does constitute restraint gives assertedly me little reassurance. That conclusion is only based the view the order affects a “continu- Ante, ing repetitive course conduct.” at 390. Even if correct, that were would still disagree since the Com- appears mission’s order to be in effect outstanding injunction certain against publications essence of —the prior In my restraint. event, understanding of the Commission’s order from effects differs of the Court. As noted in the opinion, Court’s Commonwealth injunction Court narrowed permit Pittsburgh Press to use sex-designated column headings *17 for want ads dealing jobs exempt under the Ordi- nance. The Ordinance does not for apply, example, employers
“to of fewer than persons, five to em- ployers city outside the or to Pittsburgh, religious, fraternal, charitable or sectarian nor organizations, it apply employment does to in domestic service jobs or in for which the Commission has certified a bona fide occupational exception.” Ante, at 380. 2 enough There would time principle be to consider whether this apply hypothesized by would to the situation Court, example, the for gives a newspaper where by “notice” plac of narcotics transactions ing certain a caption. advertisements under “Narcotics for Sale” now, only For I need state that two being the me situations strike entirely here, short, different. do not We have in such in a blatant by volvement a in a criminal transaction. using its to continue chooses
If
for
submitted
advertisements
for
headings
column
may
face
well
employers,
exempted
publication
particular
a
whether
deciding
questions
legal
difficult
If it
Ordinance.
subject
the
is not
to
is or
employer
adver-
a covered
decision
includes
wrong
makes the
it runs
heading,
column
sex-designated
under a
tisement
violating
contempt for
summary
being held
risk of
order.3
terms
order
therefore,
the Commission's
effect,
practical
In
as the
effect
inhibiting
may have the same
area
in this
(1931),
U.
Minnesota,
S.
in Near
injunction
of a news-
enjoined
publishers
permanently
or defam-
scandalous
“malicious,
from
paper
printing
Id., at 706. We
defined
law.”
atory newspaper, as
prior
in Near as a
restraint.
injunction
down the
struck
uncon-
presumptive
principle
In
1971, we reaffirmed
Organization
Better
prior
stitutionality of
restraint
for
in New
Keefe,
(1971).
Indeed,
Austin v.
Mr. Douglas, Justice I join While the dissent Mr. Stewart, Justice any add few words. As he like says, press, other business, regulated can be on and economic business leading matters. Our case on is Associated that score Press v. United 326 U. holds S. which that a may news-gathering agency be made accountable for By violations laws. like token, antitrust news- paper, periodical, may or TV or radio broadcaster subjected to labor relations laws. And that regulation constitutionally imposition could of penal- extend to the ties any press or other sanctions if unit of the violated laws that barred in employment discrimination based race or or religion sex.
Pennsylvania has a regulatory regime designed to elimi- nate discrimination in employment on sex; based the commission in charge of that issues program cease- orders against and-desist violators. no There is doubt Press Pittsburgh would have no constitutional against defense such a cease-and-desist order issued against for discriminatory employment practices.
IBut believe that reason First may publish pleases what it about law censorship without or restraint Government. The First Amendment does not require the press to reflect any ideological political creed reflecting the dominant philosophy, whether transient or fixed. may It use its pages facilities denounce a law and urge repeal its or, at the other extreme, denounce those who do not re- spect its spirit. letter and
Commercial matter, as distinguished from news, was *19 not to Chrestensen, U. S. v. Valentine held on views My protection. to First subject year Valentine changed since have issue occasions, earlier on I have stated As decided. was Amend- have First also materials that commercial believe doing busi- Ltd., Empire Industries If protection. ment advertise- full-page run wanted Pennsylvania, ness law, Pennsylvania criticizing this or denouncing ments censored could be Press Pittsburgh way no in which I see person a more than ad, running the for punished or inad of the the contents uttering for punished could be and pros Hall. The Independence public address a clearly or discussion are enactments legislative cons of First Amendment in our honored highly that is dialogue traditions. present litigation gave rise
The want ads kind employer one express preference firing hiring help through he If he carried needs. the state employees preferences, the basis those if against him, order might commission issue remedial employment was shown. he could discrimination Yet impunity denounce action with could publish his denunciation write editorial taking his with impunity. side also
Where there is valid law, can en- Government force it. But there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or express customers who their ideas in to the editor or in letters want ads or other commercial space. There comes a time, when course, speech and action are closely so brigaded they really are one. Falsely in a shouting “fire” theater, example given Mr. Holmes, Justice Schenck v. United 249 U. S. 47, 52, is example. one Giboney Empire Co., Storage 336 U. S. 490, written Mr. Justice Black, is another. There are however, here, no such unusual circumstances. says,
As Mb. Justice we have witnessed Stewart tendency to cut down the growing requirements literal in power of First Amendment freedoms so that those *20 step. Historically, can out of the mis squelch someone usually minority. unpopular Today creant has been an spreading it is a that does not bow to the bureaucracy promises may be engulf that us. It that earned, stereotyped we have become have so that as fate. But the presupposes First Amendment free-wheel independent ing, people whose include vagaries ideas spread spectrum across the entire of and bel thoughts any expression iefs.* would let spectrum that broad unrestrained flourish, Government, unless it was an part of integral only point action —the in the which Jeffersonian philosophy permissible point of marks the governmental intrusion.
I therefore from dissent affirmance of this judgment. Meiklejohn *As Alexander has stated: “The First Amendment primarily was not protection written for the of those intellectual pursue knowledge solely aristocrats who game, for the fun of the expresses nothing whose search for truth private more than in- curiosity equally delight tellectual or an private pride in mental achievement. way It was written thinking to clear the which general serves the welfare. It plan offers defense to men who advocate and corporate incite toward good. action for the common On behalf of every such men it tells plan us that of action must have hearing, every relevant idea of fact or value must have full con- sideration, may dangers whatever activity which in- It volves. makes no difference advocating whether a man is con- scription opposing it, or speaking in against it, favor of a war or defending democracy attacking it, or planning a communist recon- economy struction of criticising our long it. So his active participation are words those of public public discussion and decision of public policy, matters of the freedom of those words may abridged. not be postulate That freedom the basic of a society governed the votes of Speech its citizens.” Free and Its Relation to (1948). Self-Government 45-46 Doug- Mr. Justice whom Stewart,
Mb. Justice dissenting. las joins, of power police within it is no doubt have pri- discrimination prohibit Pittsburgh to city color, religion, of race, the basis employment
vate I do or sex. birth, place origin, national ancestry, policy enforcing such either, not doubt, any such indicating from employers may city prohibit availability known the they make when discrimination prop- neither those But opportunities. employment in this case. before question us resolves ositions any gov- is whether put simply, question, That a news- or federal —can tell state, agency local, ernment — it cannot. and what print it can what paper in advance *21 I Amendments think and Fourteenth the First Under Nation has such in this agency no government power.1 points out, as Court true, course, is of
It civil crim- amenable to and newspaper is publisher of a a news- example, For applicability. general inal laws of nondiscriminatory general subject is to paper publisher imposed by the National taxation,2 and to restrictions Fair Labor Act,3 Act,4 Relations Standards Labor In or em- short, and the Act.5 as businessman Sherman question power prevent governmental of to put 1 I to one side clearly military imperil publication of information that would Nation, g., publication sailing e. of the dates of defense of our “the Minnesota, troops.” v. transports Near or the number and location of 697, 716. 283 U. S. 2 Co., 250; Grosjean 233, Mur v. American 297 U. See Press S. Pennsylvania, 105, dock 112. v. 319 U. S. 3 NLRB, 103, Press v. 301 U. S. 132-133. Associated See Publishing Walling, 186, Co. Oklahoma Press v. 327 U. S. See Publishing Co., 192-193; v. Plains Mabee White U. S. 178. States, 1; v. Associated Press United 326 U. Lorain See S. States, Journal Co. 155-157; v. United S. Citizen Pub U. lishing Co. United 394 U. 139. v. S. exempt from laws
ployer, newspaper publisher is not a Accord- employers affecting generally. businessmen and as Co., ingly, assume coverage within the employer, completely can city of of the Human Relations Ordinance of the Pittsburgh. wholly approves today
But what the Court
different.
approves
government
publisher
It
order
dictating
layout
must arrange
pages
advance how he
of
newspaper.
his
Chrestensen,
in Valentine
Nothing
was almost offhand. And it has not survived reflection.” Cammarano States, v. United 358 U. S. (concurring opinion). 7The acknowledges, Court must, as it approves that what it today in this case the first is I know, far as
So agency government a permits court that American other to and dictate newspaper of a room composing enter to newspaper’s makeup of the layout and publisher may fear it but case, such is first pages. This may “It in the tent. The camel’s nose be the last. least mildest and thing in its it is obnoxious and unconstitutional but illegitimate repulsive form; Boyd way. . . .” in that footing their first get practices States, 616, 635. v. United 116 U. S. Amend- First view the of this Court Members long
So to be balanced “values” no more than set ment as will remain “values,” Amendment other against Slaton, ante, I v. Adult Theatre Paris jeopardy. See grave protections Amendment (First and Fourteenth p. 49 “total by “quality life,” interest outweighed public “public commerce,” community environment,” “tone Branzburg Hayes, (First U. S. safety”); maintain con- newsman to claim asserted Amendment outweighed his obli- relationship fidential sources York New grand jury); information to gation give Times Co. v. United 403 U. S. (Btjrgbr, by judi- outweighed J., dissenting) (First C. Columbia problems by “unseemly haste”); cial caused purely not a restriction on a commercial advertisement but on the judgment newspaper, of the for “the make editorial does judgment whether or not to allow the advertiser select Ante, column." at The effect of the local ordinance and the 386. help-wanted makeup court order is affect the of the section of newspaper, preclude Pittsburgh placing and to Press from adver- sex-designated justifies tisements columns. Court this re- judgment by arguing newspaper’s striction on editorial had on the “character of the advertisement” taken so that conveyed integrated “an combination commercial statement." But placed the stark fact remains that the restriction here on the was judgment newspaper, editorial of the not the advertisement. *23 National Com- Broadcasting Inc. Democratic System, v. mittee, 94, (Brennan, J., dissenting) 412 U. S. of (balancing competing “the First interests”).
It goal said that ordinance one, But, is a laudable and so indeed it is. in the words “Experience of Mr. Justice Brandéis, should teach us to protect liberty be most on our guard to when the Gov- purposes ernment’s are beneficent. Men born to free- naturally dom are alert repel liberty invasion their liberty evil-minded rulers. The dangers to greatest lurk in insidious encroachment men of well- zeal, meaning but without Olmstead v. understanding.” United opinion). U. S. (dissenting Mr. And, as Justice Black pointed once “The out, motives behind the state law may have been to do good. . [hjistory But . . urges indicates that good to do have led to the burning books and even to the burning ” Illinois, Beauharnais 'witches.’ 343 U. S. (dissenting opinion). today Court government holds that a can agency
force a newspaper publisher print ad- his classified vertising pages in a way certain carry in order to out governmental policy. no rea- After see decision, why son government cannot force a publisher to conform in way the same in order to achieve other goals thought socially desirable. And if government can layout dictate the of a newspaper’s classified adver- tising pages today, what is prevent there to it from dic- tating layout of the news pages tomorrow?
Those who think the First Amendment can and should be subordinated to other socially desirable interests will today’s hail decision. But I find it For frightening. I believe the constitutional guarantee of press a free more than precatory. I believe it is a clear command *24 heavy lay its allowed must never government country. in this on hand editorial dissenting. Blackmun, Mr. Justice by Mr. stated substantially for the reasons I dissent do subscribe opinion. But his Justice Stewart of his paragraph in that contained to the statements 403. p. on p. 402 and ends begins opinion which