MR. JUSTICE POWELL delivered the opinion of the Court.
The Human Relations Ordinance of the City of Pittsburgh (the Ordinance) has been construed below by
The Ordinance proscribes discrimination in employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex.
On July 23, 1970, the Commission issued a Decision and Order.
On appeal in the Commonwealth Court, the scope of the order was narrowed to allow Pittsburgh Press to carry advertisements in sex-designated columns for jobs exempt from the antidiscrimination provisions of the Ordinance. As pointed out in that court's opinion, the Ordinance does not apply to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable, or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception. The modified order bars "all reference to sex in employment advertising column
There is little need to reiterate that the freedoms of speech and of the press rank among our most cherished liberties. As Mr. Justice Black put it: "In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our
The repeated emphasis accorded this theme in the decisions of this Court serves to underline the narrowness of the recognized exceptions to the principle that the press may not be regulated by the Government. Our inquiry must therefore be whether the challenged order falls within any of these exceptions.
At the outset, however, it is important to identify with some care the nature of the alleged abridgment. This is not a case in which the challenged law arguably disables the press by undermining its institutional viability. As the press has evolved from an assortment of small printers into a diverse aggregation including large publishing empires as well, the parallel growth and complexity of the economy have led to extensive regulatory legislation from which "[t]he publisher of a newspaper has no special immunity." Associated Press v. NLRB, 301 U.S. 103, 132 (1937). Accordingly, this Court has upheld application to the press of the National Labor Relations Act, ibid.; the Fair Labor Standards Act, Mabee v. White Plains Publishing Co., 327 U.S. 178 (1946);
But no suggestion is made in this case that the Ordinance was passed with any purpose of muzzling or curbing the press. Nor does Pittsburgh Press argue that the Ordinance threatens its financial viability
In a limited way, however, the Ordinance as construed does affect the makeup of the help-wanted section of the newspaper. Under the modified order, Pittsburgh Press will be required to abandon its present policy of providing
Respondents rely principally on the argument that this regulation is permissible because the speech is commercial speech unprotected by the First Amendment. The commercial-speech doctrine is traceable to the brief opinion in Valentine v. Chrestensen, 316 U.S. 52 (1942), sustaining a city ordinance which had been interpreted to ban the distribution by handbill of an advertisement soliciting customers to pay admission to tour a submarine. Mr. Justice Roberts, speaking for a unanimous Court, said:
Subsequent cases have demonstrated, however, that speech is not rendered commercial by the mere fact that it relates to an advertisement. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), a city official of Montgomery, Alabama, brought a libel action against four clergymen and the New York Times. The names of the clergymen had appeared in an advertisement, carried in the Times, criticizing police action directed against members of the civil rights movement. In holding that this political advertisement was entitled to the same degree of protection as ordinary speech, the Court stated:
See also Smith v. California, 361 U.S. 147 (1959); Ginzburg v. United States, 383 U.S. 463, 474 (1966). If a newspaper's profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales. Such a basis for regulation clearly would be incompatible with the First Amendment.
The critical feature of the advertisement in Valentine v. Chrestensen was that, in the Court's view, it did no more than propose a commercial transaction, the sale of admission to a submarine. In New York Times Co. v. Sullivan, MR. JUSTICE BRENNAN, for the Court, found the Chrestensen advertisement easily distinguishable:
In the crucial respects, the advertisements in the present record resemble the Chrestensen rather than the Sullivan advertisement. None expresses a position on whether, as a matter of social policy, certain positions ought to be filled by members of one or the other sex, nor does any of them criticize the Ordinance or the Commission's enforcement practices. Each is no more than a proposal of possible employment. The advertisements are thus classic examples of commercial speech.
Under some circumstances, at least, a newspaper's editorial judgments in connection with an advertisement take on the character of the advertisement and, in those cases, the scope of the newspaper's First Amendment protection may be affected by the content of the advertisement. In the context of a libelous advertisement, for example, this Court has held that the First Amendment does not shield a newspaper from punishment for libel when with actual malice it publishes a falsely defamatory advertisement. New York Times Co. v. Sullivan, supra, at 279-280. Assuming the requisite state of mind, then, nothing in a newspaper's editorial decision to accept an advertisement changes the character of the falsely defamatory statements. The newspaper may not defend a libel suit on the ground that the falsely defamatory statements are not its own.
As for the present case, we are not persuaded that either the decision to accept a commercial advertisement which the advertiser directs to be placed in a sex-designated column or the actual placement there lifts the newspaper's actions from the category of commercial speech. By implication at least, an advertiser whose want ad appears in the "Jobs—Male Interest" column
Pittsburgh Press goes on to argue that if this package of advertisement and placement is commercial speech, then commercial speech should be accorded a higher level of protection than Chrestensen and its progeny would suggest. Insisting that the exchange of information is as important in the commercial realm as in any other, the newspaper here would have us abrogate the distinction between commercial and other speech.
Whatever the merits of this contention may be in other contexts, it is unpersuasive in this case. Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance.
The illegality in this case may be less overt, but we see no difference in principle here. Sex discrimination in nonexempt employment has been declared illegal under
Section 8 (j) of the Ordinance, the only provision which Pittsburgh Press was found to have violated and the only provision under attack here, makes it unlawful for "any person . . . to aid . . . in the doing of any act declared to be an unlawful employment practice by this ordinance." The Commission and the courts below concluded that the practice of placing want ads for nonexempt employment in sex-designated columns did indeed "aid" employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.
It is suggested, in the brief of an amicus curiae, that apart from other considerations, the Commission's order should be condemned as a prior restraint on expression.
While the Court boldly stepped beyond this narrow doctrine in Near v. Minnesota, 283 U.S. 697 (1931), in striking down an injunction against further publication of a newspaper found to be a public nuisance, it has never held that all injunctions are impermissible. See Lorain Journal Co. v. United States, 342 U.S. 143 (1951). The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.
The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. Cf. New York Times Co. v. United States, 403 U.S. 713 (1971). Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected.
We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial. We hold only that the Commission's modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press.
[For Appendix to opinion of the Court, see post, p. 392.]
APPENDIX TO OPINION OF THE COURT
Among the advertisements carried in the Sunday Pittsburgh Press on January 4, 1970, was the following one, submitted by an employment agency and placed in the "JOBS—MALE INTEREST" column:
________________________________________ ACAD. INSTRUCTORS ................. $13,000 ACCOUNTANTS ....................... 10,000 ADM. ASS'T, CPA ................... 15,000 ADVERTISING MGR ................... 10,000 BOOKKEEPER F-C .................... 9,000 FINANCIAL CONSULTANT .............. 12,000 MARKETING MANAGER ................. 15,000 MGMT. TRAINEE ..................... 8,400 OFFICE MGR. TRAINEE ............... 7,200 LAND DEVELOPMENT .................. 30,000 PRODUCT. MANAGER .................. 18,000 PERSONNEL MANAGER ................. OPEN SALES-ADVERTISING ................. 8,400 SALES-CONSUMER .................... 9,600 SALES-INDUSTRIAL .................. 12,000 SALES-MACHINERY ................... 8,400 RETAIL MGR ........................ 15,000 Most Positions Fee Paid EMPLOYMENT SPECIALISTS 2248 Oliver Bldg. 261-2250 Employment Agency ___________________________________________
On the same day, the same agency's advertisement in the "JOBS—FEMALE INTEREST" column was as follows:
________________________________________ ACAD. INSTRUCTORS ................. $13,000 ACCOUNTANTS ....................... 6,000 AUTO-INS. UNDERWRITER ............. OPEN BOOKKEEPER-INS .................... 5,000 CLERK-TYPIST ...................... 4,200 DRAFTSMAN ......................... 6,000 KEYPUNCH D. T. .................... 6,720 KEYPUNCH BEGINNER ................. 4,500 PROOFREADER ....................... 4,900 RECEPTIONIST—Mature D. T .... OPEN EXEC. SEC ......................... 6,300 SECRETARY ......................... 4,800 SECRETARY, Equal Oppor ............ 6,000 SECRETARY D. T. ................... 5,400 TEACHERS-Pt. Time ................. day 33. TYPIST-Statistical ................ 5,000 Most Positions Fee Paid EMPLOYMENT SPECIALISTS 2248 Oliver Bldg. 261-2250 Employment Agency _______________________________________________
MR. CHIEF JUSTICE BURGER, dissenting.
Despite the Court's efforts to decide only the narrow question presented in this case, the holding represents, for me, a disturbing enlargement of the "commercial speech" doctrine, Valentine v. Chrestensen, 316 U.S. 52 (1942), and a serious encroachment on the freedom of press guaranteed by the First Amendment. It also launches the courts on what I perceive to be a treacherous path of defining what layout and organizational decisions of newspapers are "sufficiently associated" with the "commercial" parts of the papers as to be constitutionally unprotected and therefore subject to governmental regulation. Assuming, arguendo, that the First Amendment permits the States to place restrictions on the content of commercial advertisements, I would not enlarge that power to reach the layout and organizational decisions of a newspaper.
Pittsburgh Press claims to have decided to use sex-designated column headings in the classified advertising section of its newspapers to facilitate the use of classified ads by its readers. Not only is this purpose conveyed to the readers in plain terms, but the newspaper also explicitly cautions readers against interpreting the column headings as indicative of sex discrimination. Thus,
To my way of thinking, Pittsburgh Press has clearly acted within its protected journalistic discretion in adopting this arrangement of its classified advertisements. Especially in light of the newspaper's "Notice to Job Seekers," it is unrealistic for the Court to say, as it does, that the sex-designated column headings are not "sufficiently dissociate [d]" from the "want ads placed beneath [them] to make the placement severable for First Amendment purposes from the want ads themselves."
The Court's conclusion that the Commission's cease-and-desist order does not constitute a prior restraint gives me little reassurance. That conclusion is assertedly based on the view that the order affects only a "continuing course of repetitive conduct." Ante, at 390. Even if that were correct, I would still disagree since the Commission's order appears to be in effect an outstanding injunction against certain publications—the essence of a prior restraint. In any event, my understanding of the effects of the Commission's order differs from that of the Court. As noted in the Court's opinion, the Commonwealth Court narrowed the injunction to permit Pittsburgh Press to use sex-designated column headings for want ads dealing with jobs exempt under the Ordinance. The Ordinance does not apply, for example,
In practical effect, therefore, the Commission's order in this area may have the same inhibiting effect as the injunction in Near v. Minnesota, 283 U.S. 697 (1931), which permanently enjoined the publishers of a newspaper from printing a "malicious, scandalous or defamatory newspaper, as defined by law." Id., at 706. We struck down the injunction in Near as a prior restraint. In 1971, we reaffirmed the principle of presumptive unconstitutionality of prior restraint in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). Indeed, in New York Times Co. v. United States, 403 U.S. 713 (1971), every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional. In this case, the respondents have, in my view, failed to carry their burden. I would therefore hold the Commission's order to be impermissible prior restraint. At the very least, we ought to make clear that a newspaper may not be subject to summary punishment for contempt for having made an
MR. JUSTICE DOUGLAS, dissenting.
While I join the dissent of MR. JUSTICE STEWART, I add a few words. As he says, the press, like any other business, can be regulated on business and economic matters. Our leading case on that score is Associated Press v. United States, 326 U.S. 1, which holds that a news-gathering agency may be made accountable for violations of the antitrust laws. By like token, a newspaper, periodical, or TV or radio broadcaster may be subjected to labor relations laws. And that regulation could constitutionally extend to the imposition of penalties or other sanctions if any unit of the press violated laws that barred discrimination in employment based on race or religion or sex.
Pennsylvania has a regulatory regime designed to eliminate discrimination in employment based on sex; and the commission in charge of that program issues cease-and-desist orders against violators. There is no doubt that Pittsburgh Press would have no constitutional defense against such a cease-and-desist order issued against it for discriminatory employment practices.
But I believe that Pittsburgh Press by reason of the First Amendment may publish what it pleases about any law without censorship or restraint by Government. The First Amendment does not require the press to reflect any ideological or political creed reflecting the dominant philosophy, whether transient or fixed. It may use its pages and facilities to denounce a law and urge its repeal or, at the other extreme, denounce those who do not respect its letter and spirit.
Commercial matter, as distinguished from news, was
The want ads which gave rise to the present litigation express the preference of one employer for the kind of help he needs. If he carried through to hiring and firing employees on the basis of those preferences, the state commission might issue a remedial order against him, if discrimination in employment was shown. Yet he could denounce that action with impunity and Pittsburgh Press could publish his denunciation or write an editorial taking his side also with impunity.
Where there is a valid law, the Government can enforce it. But there can be no valid law censoring the press or punishing it for publishing its views or the views of subscribers or customers who express their ideas in letters to the editor or in want ads or other commercial space. There comes a time, of course, when speech and action are so closely brigaded that they are really one. Falsely shouting "fire" in a theater, the example given by Mr. Justice Holmes, Schenck v. United States, 249 U.S. 47, 52, is one example. Giboney v. Empire Storage Co., 336 U.S. 490, written by Mr. Justice Black, is another. There are here, however, no such unusual circumstances.
I therefore dissent from affirmance of this judgment.
I have no doubt that it is within the police power of the city of Pittsburgh to prohibit discrimination in private employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex. I do not doubt, either, that in enforcing such a policy the city may prohibit employers from indicating any such discrimination when they make known the availability of employment opportunities. But neither of those propositions resolves the question before us in this case.
That question, to put it simply, is whether any government agency—local, state, or federal—can tell a newspaper in advance what it can print and what it cannot. Under the First and Fourteenth Amendments I think no government agency in this Nation has any such power.
It is true, of course, as the Court points out, that the publisher of a newspaper is amenable to civil and criminal laws of general applicability. For example, a newspaper publisher is subject to nondiscriminatory general taxation,
But what the Court approves today is wholly different. It approves a government order dictating to a publisher in advance how he must arrange the layout of pages in his newspaper.
Nothing in Valentine v. Chrestensen, 316 U.S. 52, remotely supports the Court's decision. That case involved the validity of a local sanitary ordinance that prohibited the distribution in the streets of "commercial and business advertising matter." The Court held that the ordinance could be applied to the owner of a commercial tourist attraction who wanted to drum up trade by passing out handbills in the streets. The Court said it was "clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment." Id., at 54. Whatever validity the Chrestensen case may still retain when limited to its own facts,
So long as Members of this Court view the First Amendment as no more than a set of "values" to be balanced against other "values," that Amendment will remain in grave jeopardy. See Paris Adult Theatre I v. Slaton, ante, p. 49 (First and Fourteenth Amendment protections outweighed by public interest in "quality of life," "total community environment," "tone of commerce," "public safety"); Branzburg v. Hayes, 408 U.S. 665 (First Amendment claim asserted by newsman to maintain confidential relationship with his sources outweighed by obligation to give information to grand jury); New York Times Co. v. United States, 403 U.S. 713, 748 (BURGER, C. J., dissenting) (First Amendment outweighed by judicial problems caused by "unseemly haste"); Columbia
It is said that the goal of the Pittsburgh ordinance is a laudable one, and so indeed it is. But, in the words of Mr. Justice Brandeis, "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479 (dissenting opinion). And, as Mr. Justice Black once pointed out, "The motives behind the state law may have been to do good. But . . . [h]istory indicates that urges to do good have led to the burning of books and even to the burning of `witches.'" Beauharnais v. Illinois, 343 U.S. 250, 274 (dissenting opinion).
The Court today holds that a government agency can force a newspaper publisher to print his classified advertising pages in a certain way in order to carry out governmental policy. After this decision, I see no reason why government cannot force a newspaper publisher to conform in the same way in order to achieve other goals thought socially desirable. And if government can dictate the layout of a newspaper's classified advertising pages today, what is there to prevent it from dictating the layout of the news pages tomorrow?
Those who think the First Amendment can and should be subordinated to other socially desirable interests will hail today's decision. But I find it frightening. For I believe the constitutional guarantee of a free press is more than precatory. I believe it is a clear command
MR. JUSTICE BLACKMUN, dissenting.
I dissent substantially for the reasons stated by MR. JUSTICE STEWART in his opinion. But I do not subscribe to the statements contained in that paragraph of his opinion which begins on p. 402 and ends on p. 403.
Briefs of amici curiae urging affirmance were filed by Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Harriet S. Shapiro, John C. Hoyle, Julia P. Cooper, and Beatrice Rosenberg for the United States; by Evelle J. Younger, Attorney General of California, Robert H. O'Brien and Carl Boronkay, Assistant Attorneys General, and Judith T. Ashmann, Deputy Attorney General, for the California Fair Employment Practice Commission; by George F. Kugler, Jr., Attorney General, Stephen Skillman, Assistant Attorney General, and David S. Litwin, Deputy Attorney General, for the State of New Jersey; by Israel Packel, Attorney General of Pennsylvania, and Roy Yaffe and Michael L. Golden, Jr., Assistant Attorneys General, for the Pennsylvania Commission on the Status of Women et al.; by Norman Dorsen, Ruth Bader Ginsburg, and Jeffrey A. Kay for the American Civil Liberties Union et al.; by Phineas Indritz, Elizabeth Boyer, Marguerite Rawalt, Martha W. Griffiths, Margaret M. Heckler, and Donald M. Fraser for the American Veterans Committee, Inc., et al.; by Philip J. Tierney for the International Association of Official Human Rights Agencies; and by Rita Page Reuss and Jane M. Picker for the Women's Law Fund, Inc.
"5. The Pittsburgh Press permits the advertiser to select the column within which its advertisement is to be inserted.
"6. When an advertiser does not indicate a column, the Press asks the advertiser whether it wants a male or female for the job and then inserts the advertisement in the jobs—male interest or jobs—female interest column accordingly." Id., at 16a.
"Notice to Job Seekers"
"Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinances—local, state, and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination."
It suffices to dispose of this contention by noting that the Commission's commonsense recognition that the two are connected is supported by evidence in the present record. See App. 236a-239a. See also Hailes v. United Air Lines, 464 F.2d 1006, 1009 (CA5 1972). The Guidelines on Discrimination Because of Sex of the Federal Equal Employment Opportunity Commission reflect a similar conclusion. See 29 CFR § 1604.4.
"Now, I'm not prepared to answer whether the company makes money on [want ads] or not. I suspect it does. They charge for want-ads, and they do make a lot of their revenue in the newspaper through advertising, of course; and I suspect it is profitable." Tr. of Oral Arg. 10.