| Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations
(No. 72-419)
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| Syllabus
| Opinion
[ Powell ] | Dissent
[ Burger ] | Dissent
[ Douglas ] | Dissent
[ Stewart ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
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Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations
CERTIORARI TO THE COMMONWEALTH COURT OF PENNSYLVANIA
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, [p394] before each column heading, the newspaper prints the following "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.
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." [n1] Ante at 388. In any event, I believe the First Amendment [p395] freedom of press includes the right of a newspaper to arrange the content of its paper, whether it be news items, editorials, or advertising, as it sees fit. [n2] In the final analysis, the readers are the ultimate "controllers" no matter what excesses are indulged in by even a flamboyant or venal press; that it often takes a long time for these influences to bear fruit is inherent in our system.
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,
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.
Ante at 380. [p396] If Pittsburgh Press chooses to continue using its column headings for advertisements submitted for publication by exempted employer, it may well face difficult legal questions in deciding whether a particular employer is or is not subject to the Ordinance. If it makes the wrong decision and includes a covered advertisement under a sex-designated column heading, it runs the risk of being held in summary contempt for violating the terms of the order. [n3]
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 [p397] "unlucky" legal guess on a particular advertisement or for having failed to secure advance Commission approval of a decision to run an advertisement under a sex-designated column.
1. The Court and the opinions under review place great stress on the finding of the Pittsburgh Commission on Human Relations that the Pittsburgh Press "permits the advertiser to select the column within which its advertisement is to be inserted." That finding, however, does not disprove Pittsburgh Press' claim that it uses column headings for the convenience of its readers. In any event, the order under review, as the Court acknowledges,
does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.
Ante at 384. Thus, even if the newspaper became actively involved in selecting the appropriate column for each advertisement, presumably the Commission's order would still prohibit Pittsburgh Press from using the column headings.
2. There would be time enough to consider whether this principle would apply to the situation hypothesized by the Court, for example, where a newspaper gives "notice" of narcotics transactions by placing certain advertisements under a "Narcotics for Sale" caption. For now, I need only state that the two situations strike me as being entirely different. We do not have here, in short, such a blatant involvement by a newspaper in a criminal transaction.
3. The Court's statement that the "Commission is without power to punish summarily for contempt," ante at 390 n. 14, is hardly reassuring to me in a First Amendment setting. We are still left with no assurance that an enforcement action initiated at the request of the Commission will not be summary in nature. It is helpful that the Court expresses a caveat on this score. However, the weighty presumption of unconstitutionality of prior restraint of the press seems to be given less regard than we have traditionally accorded it.