Pittsburgh Press Company v. Pittsburgh Commission on Human Relations

PETITIONER:Pittsburgh Press Company
RESPONDENT:Pittsburgh Commission on Human Relations
LOCATION:Allegheny County District Court

DOCKET NO.: 72-419
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: State appellate court

CITATION: 413 US 376 (1973)
ARGUED: Mar 20, 1973
DECIDED: Jun 21, 1973
GRANTED: Dec 04, 1972

ADVOCATES:
Charles R. Volk
Eugene B. Strassburger, Jr. –
Marjorie H. Matson – for respondent The National Organization for Women, Inc

Facts of the case

To prevent gender discrimination, the Pittsburgh Commission on Human Relations (the Commission) created an ordinance that forbids newspapers to advertise employment opportunities in gender-designated column. The National Organization for Women, Inc. filed a complaint with the Commission alleging that the Pittsburgh Press Co. (Pittsburg Press) violated the ordinance by allowing employers to place advertisements in the male or female columns when the jobs advertised do not have occupational qualifications or exceptions. The Commission had a hearing and concluded Pittsburg Press violated the ordinance. The Pittsburg Press appealed and contended the ordinance violates the First Amendment by restricting its editorial judgment. The Commonwealth Court affirmed. 

Question

Does an ordinance that forbids newspapers to advertise employment opportunities in gender-designated columns violate the freedom of press guaranteed by the First Amendment? 

Warren E. Burger:

We will hear arguments next in 72-419, Pittsburgh Press Company against the Pittsburgh Commission on Human Relations.

Mr. Volk.

Charles R. Volk:

Mr. Chief Justice, may it please the Court.

The Pittsburgh Press Company has, as most newspapers in the country did have, a system and still do, I might add, a system of classifying its ‘Help Wanted’ advertisements under either male or female.

Some time after the passage of the Civil Rights Act and after EEOC guidelines which indicated that male and female as such might be proscribed and after the EEOC promulgated some alternative guidelines which have since been overturned again by the EEOC in one of their changes of guidelines, the Pittsburgh Press went to a system of male interest and female interest in a third column heading Male-Female.

Appropriately and prominently displayed in the want-ads themselves at the heads of the columns were a rather large disclaimer box entitled “Notice to Job Seekers” which pointed out that the classification was for reader interest only, and should not be construed as being a limitation since most laws — there were laws in most jurisdictions which proscribed discrimination on the basis —

Byron R. White:

Who made the decision just as a matter of fact as to which column heading each ad went in?

Charles R. Volk:

As to which column each ad went in?

The record is fairly complete on that Mr. Justice White.

The system is that the advertiser calls up and in essence says where he wants it.

If he does not express preference for placement of the ad, the newspaper will help him where most ads of this type ‘Secretaries Female’, ‘Truck Driver Male’ —

Byron R. White:

So that there are — in this case there are instances I suppose where we are talking about ads, a part of which the newspaper made the decision as to which column it went in.

Charles R. Volk:

Yeah the newspaper will help.

Byron R. White:

Well help, but it’s the one who makes the decision as to which column to put it in.

Charles R. Volk:

It makes the final — it reserves for itself the final determination, but I would be fatuous and untrue if I told this Court that that’s the way it happens in actual practice.

In actual practice the advertiser who is seeking an employee calls up and says —

Byron R. White:

Invariably then the advertiser is the one who finally says the newspaper, “Well after now that I have talked to you I would suggest to go into this column.”

Charles R. Volk:

Yes.

Yes sir that’s essentially the way it works.

And now we have male interest and female interest.

The City of Pittsburgh passed an Ordinance —

Byron R. White:

So this isn’t an independent judgment of the newspaper as to which — it isn’t its judgment as to whether this job is more attractive to males or females.

Charles R. Volk:

It isn’t its judgment in any specific case.

I would be fatuous if I say that.

However, we do contend that the newspaper gets into the act by making an editorial decision that there are jobs, there is a large body of differing interest between males and females as they relate to the job market, and it is the decision of the newspaper to run column headings appealing to this reader interest and permitting advertisers to place job in there.

Byron R. White:

But if the advertisers have said — if in each case the advertisers said to put it in the other column, the newspaper would put it in there?

Charles R. Volk:

Yes they would.

In this particular case —

Byron R. White:

It’s not its judgment in any case as to whether the job was more fitting for male?

Charles R. Volk:

Not on the record.

Charles R. Volk:

There could be oportunity — there could be, of course, occasions where the newspaper would nudge it into one or refuse to carry, refuse to carry perhaps a Go-Go Dancer in the Male section, but we can search throughout the record and not find any reference to that.

I don’t believe sir, we read the record very carefully prior to this hearing.

Potter Stewart:

Is there a — again as a matter of fact, is there any question about what the decision to set up the classified ads, the Help Wanted ads, under this format was exclusively the decision of your client, the newspaper.

Charles R. Volk:

Absolutely sir that’s why we are here.

Potter Stewart:

That’s what I thought.

Charles R. Volk:

It is the very strongly held opinion, Scripps-Howard Newspapers who have the controlling interest in the Pittsburgh Press and in the Pittsburgh Press that this does serve a legitimate reader and advertiser function in providing a — well similar to playing 20 questions.

The first question is always, is it animal, vegetable, or mineral?

And this makes a gross categorization from which you take off, and we feel that the cultural patterns or biological, we wouldn’t get into that debate I trust, for some reason men and women in this country prefer different types of jobs and it is a legitimate newspaper function to cater to these differences by putting the ads — by providing different columns wherein advertisers can place these ads.

Byron R. White:

And the proof is that advertisers utilize them.

Charles R. Volk:

Yes, and if one reads the record and the allegations of the original complainants in this case, one would assume that these are just placed there solely for the purposes of invidious discrimination that everybody who places an ad for a secretary is seeking to discriminate against male secretaries.

On the contrary, I think, when you take judicial notice in fact the average advertiser is merely seeking an employee and the idea of discrimination, one way or another doesn’t come into his mind.

He is looking for an employee, if he advertises for a truck driver, the odds of him getting a female truck driver are relatively limited, no matter where he puts the ad.

Therefore it is even for the reader, a service which permits maximum for the advertisers, I am sorry — for the advertisers it is a service which permits maximum reader response.

The complainants in this case in the city have made much that this is a service for the advertisers.

It is the service for the advertiser; it is the service for the reader.

It is an intention, a device to get maximum response to an ad.

Potter Stewart:

How about the — now these were all ads for ‘Help Wanted’.

How about ads for positions wanted, jobs wanted, that is job seekers advertisers?

Charles R. Volk:

Job seekers are neutered.

There aren’t very many of them in regard to number and they are merely placed in the ‘Help Wanted’ situation wanted ad.

Potter Stewart:

All are just neutered indiscriminately?

Charles R. Volk:

Yes sir.

Now —

Warren E. Burger:

Do you mean that they would reject an ad if it said ‘Middle aged women wants housekeeping job’?

Charles R. Volk:

Yes, they do that.

They don’t feel necessarily that they are compelled to, but the Press does in cooperation with the Pittsburgh Human Relation Commission engaged in a voluntary screening process on these ads.

It’s part of our contention here that the First Amendment does not require them to do so, that’s also the contention in the Hunter case which is —

Potter Stewart:

Well, surely the Chief Justice’s question — if it is a middle aged woman who wants a job, doesn’t she — and she wants to say she is a middle aged woman who wants a job, you wouldn’t reject her ad because of that, because she didn’t say she was a man.

Charles R. Volk:

I believe the City would attempt to get her to dissuade her from placing it because of their agreement with the Human Relations Commission.

Of course we reject all kinds of ads, I just got involved in massage parlors recently and rejecting ads for —

Potter Stewart:

That’s a different subject.

Charles R. Volk:

[Laughter Attempt] We do censor ad content voluntarily based on the editorial judgment of the newspaper.

Warren E. Burger:

But you see now a First Amendment problem in either rejecting or trying to control an ad ‘Middle aged woman wants housekeeping job’.

Charles R. Volk:

Yes sir, I see a First Amendment problem enforcing a newspaper to do it.

I think they have got the right to censor it if they wish, but I see a First Amendment problem if the newspaper wish to resist, which is precisely the case in Hunter case which of course is certainly companion to this one in which petition for rehearing on certiorari is pending before this court.

That was precisely the issue there.

William H. Rehnquist:

Mr. Volk, sometime in the last two or three weeks I remember seeing some sort of a statement from some paper that it was going to start publishing want ads for nothing, without charging people for them.

And that led me to wonder whether want ads from the newspaper point of view are an inducement to buy the paper to the readers as well as a way of raising revenues so far as the newspaper is concerned.

Yes, it’s part of our contention I would have it later in my argument, that a newspaper Mr. Justice Rehnquist, is a forum, a country market place if you will, a Roman Forum of the flow of information and ideas, and a very significant part of this is the Want ad columns.

They are used by the Department of Labor for example, as one of their indicators of economic health, the numbers of lines appearing in the accumulative Want ads throughout the country.

They are an interchange of people who have the right to a job, seeking a job and people who wish to hire people, trying to find these people who are seeking jobs.

It provides a very major community service.

Now I am not prepared to answer whether the company makes money on them or not, I suspect it does, they charge for want ads and they do make a lot of their revenue in their newspaper through advertising of course.

And I suspect it is profitable.

Now the Pittsburgh Press has a massive organization accepting, editing and setting up classified want ads, but it is and we are probably contending that it is a major community service and we further contend that’s why we are here, that the complainants find this to be a major throat through which job applications flow, the job seekers seeking employers, and if they can control, they discriminate what they feel to be a discriminatory aspect of this at that throat, then they can take a big step forward in eliminating discrimination without the difficulty of proving any individual active discrimination or any individual intent to discriminate.

They can get what they culturally seek which is broader job opportunities or broader job opportunities for women something which we do not necessarily disagree with editorially, but we feel that the place to battle is not in the want-ad pages of the newspaper particularly as it relates to the judgment of the newspapers as to how they are going to run those ads.

I hope that convoluted answer adequately addressed itself to your question Sir.

The Pittsburgh Press was after commission hearings eventually found to be violative of the Pittsburgh City ordinance in the way they place these ads, they were found specifically guilty of Section 8(J) which is aiding an employer in the act of discrimination.

It is important to note that no — in the findings of fact of the Commission, no act of discrimination on the part of any employer was found as a fact.

There was minimal testimony presented at the hearing on the basis of one potential discriminatee but no proof was ever addressed that this particular job situation was covered by the ordinance.

The ordinance has several exceptions, there can be a basic occupational qualification, a bona fide occupational qualification exemption.

It applies to only employers of five and more and it is limited to the City of Pittsburgh itself, and does not apply to domestic help.

So there was no indication in the one bit of evidence presented that admit any of these tests and the Commission did not so find that it was discriminatory.

When we appealed the case through Common Pleas and through the Commonwealth Court, we were arguing a) No discrimination was found; and b) It was a violation of the freedom of the press to impinge on its judgment of the newspapers to how it was going to arrange it’s classified editorial pages.

In both cases we were, to finally use colloquial left off, simply saying that it is the law of the land that commercial advertising is not subject to First Amendment Rights.

Now these, of course, are all contained in the opinions in the record.

The case usually cited was Valentine versus Chrestensen and we are here today to ask this Court to extend its concepts of what constitutes First Amendment Rights in a commercial context.

As Mr. Justice Douglas said in the concurring opinion in Cammarano versus the United States in speaking of Valentine versus Chrestensen, the ruling was casual almost offhand and has not survived reflection.

He also said the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion, which is precisely what we are talking about in this free flow of information here.

And I think very well put was a comment in an Harvard Law Review article on deceptive advertising in 80 Harvard Law Review article where the commentator said “Yet no court talking about Valentine versus Chrestensen, yet no court has undertaken to explain why commercial advertising does not deserve a title speech which enables and protects social and religious advocacy and he went on to call it the stepchild of the First Amendment.

William H. Rehnquist:

Now, we hold that in the developing line of cases in this Court that the Valentine decision which was referred to in the Circuit Court in the Hunter case as being an unbroken line of authority for Valentine on.

On the contrary it maybe unbroken but it is a hazy and indistinct line at best and in my reading of the cases occasionally, if not broken, certainly it disappears like a road line on a snowy day, and we feel that the concepts developing in this Court as annunciated in New York Times versus Sullivan and in dissents in Breard versus Alexandria and in all of the newspaper cases from Grosjean on indicate that the Valentine case was simplistic, that the words and phrases of the Circuit Court would set absolute prohibition of expression in the marketplace as illegal and is not be saved by any commercial thing, if that’s to the expression requires very serious redefinition by this Court and we are asking you to do so on a —

Byron R. White:

But you are not — does your case hang on that?

Charles R. Volk:

Does our case hang on that?

Our case hangs on two points; one is the freedom of the press argument and —

Byron R. White:

I know, but let’s assume Valentine survives, it just survives, do you lose?

Charles R. Volk:

If Valentine survives in some of its grosser language, its simplistic language, if no distinctions can be drawn, we may very well lose.

Byron R. White:

Because I would assume that you wouldn’t — if there is any way around Valentine that’s reasonable, you would suggest, we do that first as an overrule —

Charles R. Volk:

Yes, Valentine, as I am sure you know Mr. Justice White, is a two page opinion.

The Circuit Court I believe is two page, it could be three, it’s very short.

The Circuit Court opinion was a long and very closely reasoned opinion and Valentine just, as Mr. Douglas said, the opinion appears casual almost offhand and yet everybody who cited it for authority that commercial speech deserves no protection, has no First Amendment rights. This has been repeated so often in the authority citing Valentine that we find, that let’s say inverted pyramid.

Byron R. White:

Well, I thought a major part of your argument perhaps was that even if commercial speech isn’t protected, there is more to this speech here than commerce.

Charles R. Volk:

Oh, it certainly is, so there is the editorial —

Byron R. White:

Well, what about that part of it if — I suppose you say that we can decide the case in your favor without overruling Valentine at all.

Charles R. Volk:

Yes, you could by deciding — unless you take an extremely simplistic view of Valentine which is to say if it’s commercial, it has no protection.

I think you have already said in New York times versus Sullivan that merely because a matter is commercial, newspapers are bought and sold, wages are paid, money changes hands —

William O. Douglas:

Well the advertisement in Times was distinguished from Valentine, wasn’t it?

Charles R. Volk:

Yes, it was.

William O. Douglas:

That was an advertisement in New York Times versus Sullivan.

Charles R. Volk:

Yeah, it was a political advertisement.

William O. Douglas:

It was an verdict and it was said that it was in — Valentine had nothing — Valentine and Chrestensen had nothing to do with the First Amendment questions raised by that advertisement, that’s what Times and Sullivan held when —

Charles R. Volk:

Yes. Valentine versus —

William O. Douglas:

Are you suggesting you may make the same argument, perhaps for different reasons as to this —

Charles R. Volk:

Yes.

I am contending that as we begin to balance the various interests here, we can simply say that just because it’s commercial it has full First Amendment rights, just because — I am sorry.

William O. Douglas:

I just wonder then if the question Mr. Justice White put to you is when you ought to address yourself which is namely, assuming that Valentine and Chrestesen is not to be overruled.

Charles R. Volk:

Yes.

William O. Douglas:

Like the advertisement in New York Times and Sullivan ought not we agree that these two should be distinguished.

Charles R. Volk:

And we certainly think that you should.

William O. Douglas:

Why?

Charles R. Volk:

We feel that the Help Wanted arrangement, we have two points on that, both which can be distinguished from Valentine unless as you did in Sullivan.

As I said unless you would take an extremely rigid view of Valentine, that Help Wanted ads is editorial comment.

It is a statement, the way we arrange them, is a statement of the editor’s opinion as to how best service the readers and best appeal to the readers just the way he arranges his paper vis-à-vis placing of the television section vis-à-vis the placing of the sports pages and vis-à-vis rear editorial pages versus the front page where the average reader wouldn’t be too enthused.

To buy the paper, he puts in the middle.

One may make a social commentary that maybe it could be, should be on the front pages.

We say, how he arranges the newspaper is an editorial judgment and that this is not commercial. And secondly if it is, it is a mixed editorial and commercial policy.

Want-ads as I have pointed out in answer to your question are a basic community service, they are like the community billboard, and we feel that this is a forum that should be intruded upon only with great caution, as in New York Times versus the Sullivan.

I think it falls under Dr. Mitchell John’s Theory of Governing Importance.

As we know that theory is an extremely broad one, Governing importance is merely not politics as quoted in Harvard Law Review in their main article on Deceptive Advertising, Mitchell John’s concept of governing interest is very broad indeed including those forms of thought and expression within the range of human communication from which the voter derives the knowledge, intelligence, sensitivity values required to sanely and objectively judge the power and duty of self government.

Thurgood Marshall:

But isn’t there a great difference between somebody using its expertise and its political thought and its editorial policy as to Vietnam and as to somebody getting a job, his employment?

Charles R. Volk:

That argument has been made and has attractive merit until we realize that we are in a law explosion at — we are those of us who labor in this venue out there see every passage of every new act of Congress, we have new guidelines, new regulations, new rules that are imposed upon business and we find that the newspapers —

Thurgood Marshall:

Well business is not protected by the First Amendment.

Charles R. Volk:

Well I would think that business has some protections under the First Amendment Mr. Justice Marshall. I think a newspaper —

Thurgood Marshall:

Well I don’t think a plumbing business has any protection under the First Amendment.

Charles R. Volk:

Well I think the plumbing business, if he places a commercial advertisement in a newspaper, have certain First Amendment rights to express his — to put his ad, and I think that’s what our case is, to some degree, all about that the commercial context does not totally devoid of First Amendment protection.

And just because somebody buys it or sells it or offers a commercial product, does not leave him to tender mercies of the due process and Fifth Amendment alone, but does come under some First Amendment protection and it is the duty of the courts I think to balance the hazard involved, the harm to be remedy with the right to be expressed, and one of these is the right of the newspaper, a newspaper — I shouldn’t face that way of course.

The First Amendment doesn’t make it all freedom of the speech, it mentions the Press separately.

It says freedom of a speech and of the Press, the Press has been a peculiar institution in this country since the days of the framers of the constitution and John Peter Zenger and his trail.

Now, the press is a major complex business which provides a basic inter flow of communications and ideas and one of them is want-ads and one of the aspects here is the placement of those want ads and it may be a small chip as we say in our brief.

I would like to refer to it as the Lilliputians tying down Gulliver, he is a big giant, and every little rope that they put across him no bigger than a sewing thread eventually tied him to the earth and that’s what we have with the newspapers.

There are these guidelines proliferate and the newspapers become the enforcement arm of agencies seeking to produce meritorious or not meritorious, we don’t pass judgment on that here, I am not trying to readdress the ordinance but as these agencies attempt to use the newspapers of the country as enforcement arms as they have here and as they did in Hunter making them a screening agency, this impinges on the freedom of that newspaper to control its pages the way they prefer.

Thurgood Marshall:

The newspaper retains the right to take what they like of it?

Charles R. Volk:

I am sorry sir, I missed the first part of your question.

Thurgood Marshall:

The newspaper retains the right to take whatever regulations they like and reject those they don’t like, and with this the fact that you said that the middle age woman couldn’t put the ad in —

Charles R. Volk:

In the Pittsburgh Press?

Thurgood Marshall:

Yeah.

So you take what regulations you like and you discard what you don’t like.

Is that your position?

Charles R. Volk:

Our position is that those — well yeah, that was the voluntary act merely by committing a voluntary cooperation with the Humans Relations Commission, I don’t think it obligates us to take the whole law if it impinges on us in someway we wish to challenge in Court.

The Pittsburgh Press Committee decided that it had a commitment to civil rights and to certain social change and did indeed work with the City’s Human Relations Commission and with the State Commission on the content of ads, but it did not do so under compulsion of law where they were forced to do something which they, in their best judgment, did not think was proper, they fought and here we are.

Charles R. Volk:

Now I say that we can’t pick and choose those regulations which we find meritorious, but most certainly sir, we have the right to challenge those regulations which in our opinion impinge on the the freedom to run that newspaper in an efficient manner and conducting the inter flow of information in the way we see fit.

In that Hunter case the Circuit Court said the newspaper has no problem divining the intent of the ads that it publishes, and even though the HUD Guidelines under which they are working under the Civil Rights Act of 1968 say that the use of catch words, locations, which might indicate a discriminatory intent in housing or proscribed in the newspaper is a co-defendant in these cases.

And yet the Circuit Court says the newspaper has a duty to divide the intent of those ads that it prints.

Here we have exceptions to this ordinance.

The Commonwealth Court has found that the City of Pittsburgh cannot regulate the want-ad advertising of advertisers outside the city merely because the paper is printed there.

We have the under-five employment exemption; we have the domestic employment exemption, and yet we have to guess or find out whether the employer who is seeking an employee fits under one of these exemptions, and we do so at our peril.

Harry A. Blackmun:

Mr. Volk, some communities have an ordinance, for example, that prohibits a restaurant from employing waitresses between the hours of 2 a.m. And 6 a.m.

Do you have such a law in Pittsburgh?

Charles R. Volk:

No sir, not to my knowledge.

We used to have a Barmaid Law in Pennsylvania but that’s has been repealed.

Harry A. Blackmun:

If you did then the restaurant operator who wanted help for the graveyard shift what would be the attitude —

Charles R. Volk:

In our attitude, we could take the ad any way we wanted it.

The city’s attitude is he has got to go and get a bona fide occupational exemption certificate from the city and then when they present us the certificate, we can print it.

Harry A. Blackmun:

Incidentally, you did print a disclaimer in your newspaper.

Charles R. Volk:

Yes.

Harry A. Blackmun:

Are you placing much emphasis on this?

Charles R. Volk:

Oh, I wrote it. [Laughter]

Disclaimers have been challenged of course in civil rights cases for a long time, but I think where you have a record like this one and a legitimate body of desire for jobs, I think you can legitimately rely to some degree on a disclaimer.

It’s merely not a guise.

We say too that in publications of limited interests such as sports magazine, the magazine MS, the black newspapers that we have in most of our urban centers, if they take an ad, it is, in essence, an expression of a preference for the limited readers, the limited group of readers that they represent.

And that if our newspaper can’t take a job, put an ad under a female interest column, then it probably couldn’t put it under a society page, and we seriously doubt if you extend that that putting it in a special interest publication, it constitutes expression of a preference, we wonder what will happen to the FCC regulations and Affirmative Action Programs that forces government contractors to apply or to advertise for jobs in black newspapers, the Spanish speaking newspapers in appropriate areas and others, because those are definitely an expression of a preference.

And are those newspapers to be placed on their peril to be sure that the advertiser also advertises some place else to get a wide range or body of response to the ad.

Judge Crumlish of Commonwealth Court addressed himself to that very point.

He mentioned I believe Ms. Magazine and Ebony when he discussed, are we to really get in censor by making them aiders, which is what we were accused of and found guilty of here being an aider in discrimination, merely because the Ku Klux Klan Journal runs a — if they have such a thing, runs a want-ad section and I think that we can take judicial notice of the fact that if an employer placed the want-ad or an employee in Ku Klux Klan Journal, he is not likely to get too many employees who were not White Anglo-Saxon Protestants, and probably Southern.

I think we find that the newspapers are being impinged on with some significant degree and as one court said this maybe an idea whose time has come but we ask that it should be let come through the free interchange of ideas and through the interchange of advertisers and readers and through cultural change, if it will, but it not come through government fiat and the cultural predilections of local special interest groups or government officials.

Thank you Sir.

Warren E. Burger:

Mr. Strassburger.

Eugene B. Strassburger, Jr.:

Mr. Chief Justice and may it please the Court.

I represent the City of Pittsburgh and it’s Human Relations Commission.

The Commission like the EEOC and similar commissions in other states, many of which are represented by amicus briefs here today was created in an attempt to eliminate discrimination including employment discrimination.

Eugene B. Strassburger, Jr.:

A 1969 Amendment to the Human Relation Ordinance of the City of Pittsburgh, added a prohibition on the basis of sex to the other prohibitions on race, religion, national origin grounds.

The relevant section of the ordinance for our purposes is Section 8, Section 8 (e) makes it an unlawful employment practice to publish or cause to be published an advertisement indication any discrimination on the basis of sex.

Section 8 (j) prohibits any person, which is defined so as to include a newspaper from aiding or participating in the doing of an unlawful employment practice.

The National Organization for Women filed a complaint alleging that the Press had violated Section 8(j) in permitting advertisers to advertise in these sex segregated columns.

The Commission, after a hearing and then the Common Pleas Court and the Commonwealth Courts of Pennsylvania held that there were violations of the ordinance and that no constitutional rights of petitioner had been abridged.

There are two constitutional questions raised here: First Amendment question, which I will deal with and the due process question, which counsel for the National Organization for Women will discuss.

Respondents believe that there is no First Amendment violation in this case.

This Court has continually held that constitutionally protected speech is less than absolute and the courts have pointed out several ways.

Justice Harlan in the Konigsberg case mentioned two.

First, he said that speech in certain context do not have First Amendment protection, and secondly he said that general regulatory statutes not intended to control the content of speech, but incidentally, limiting its unfettered exercise were permissible so long as the laws were justified by an important governmental interest.

I think that to these two limitations we can add a third, which may just be a subcategory of the second and that is that conduct, even where there are some idea associated with it, does not have the First Amendment protection that pure speech has.

The petitioners’ activity in this case we believe fails to qualify for First Amendment protection on not just one of these basis, but on all three.

First of all it’s commercial speech and this is one of the context where this Court has held that the First Amendment does not apply.

Began in the unanimous decision of this Court in Valentine against Chrestensen in 316 U.S., where the Court said that while freedom of communicating information of course enjoys a high degree of protection, the constitution imposes no such restrain on government as respects purely commercial advertising.

We believe that Valentine is good law today; it’s been cited with approval by this Court in many cases which we point in our brief, and it’s been cited with approval in New York Times against Sullivan, which we find very surprising that the petitioner relies on.

That was a political advertisement in that case.

It recited grievances, it protested claimed abuses, it expressed opinion and the Court was very careful to distinguish that political advertisement from the commercial advertisement in Valentine against Chrestensen.

And I think that New York Times, the political advertisement there, can be distinguished from the advertisements involved in this case on the same basis.

This non-protection of commercial speech, we believe, makes a great deal of sense.

Professor Emerson has rationalized it as applying — commercial speech applying to a separate sector of economic activity, an area that involves economic interest rather than the interest of free expression, the production of goods and services.

The terms that this Court used in Chaplinsky against New Hampshire, we are not dealing with any essential part of exposition of ideas.

I, again, find it surprising that petitioner would rely on the Meiklejohn view of First Amendment applying to governing speech, because we feel that that’s a situation where, his theory says that Public affairs, speech that has to do with public affairs, is protected.

And I think that this Court indicated in New York Times that it was endorsing the Meiklejohn theory when it distinguished between public liable and private liable.

It would seem to me fairly obvious that this case falls on the private side of the public-private dichotomy.

The petitioner’s answer to this as well the advertisements themselves may not be ideas, but the column headings are ideas, they are different; they are —

Warren E. Burger:

We will pick that there after lunch counsel. [Luncheon Recess]

You may resume Mr. Strassburger.

Eugene B. Strassburger, Jr.:

Mr. Chief Justice, may it please the Court.

Before the luncheon break, I was indicating that these commercial advertisements are non-ideas and the petitioners’ response to this is to say that the ads themselves may not be ideas, but that the column headings are different, that they are abbreviated editorial comment that certain jobs are of more interest to men than to women.

However, this argument corresponds neither to the facts, nor the law.

Eugene B. Strassburger, Jr.:

In answer to the question that Justice White asked, the paper does not give the slightest thought to whether the advertised job interest men or women; it goes wherever the advertiser wants the ad to go, regardless of whether the newspaper might have thought that this is a female type job or a male type job.

Potter Stewart:

But the newspaper has in setting up this setup on its Help Wanted pages given advanced thought to the proposition that some jobs maybe of more interest to women and other jobs of more interest to men.

It has given thought to the basic idea and has conceptualize that idea in the setup of its classified advertising, hasn’t it?

And that was the newspaper decision, at least that’s what counsel answered to me.

Eugene B. Strassburger, Jr.:

Your Honor I don’t think that this is anymore an idea than to say that a violator of the Antitrust Law says that well, his violation of the Antitrust Law shows his idea that monopoly is beneficial to society.

Potter Stewart:

Well, but that doesn’t involve — perhaps you are quite right.

But you don’t — you are not contending here, that it’s the advertisers who have forced the newspaper to do this or have persuaded the newspaper to do this or that it’s the advertiser’s idea for the newspaper to set it up this way, are you, because I have understood the facts otherwise?

Warren E. Burger:

No, the newspaper sets up the framework but the advertiser, by placing an advertisement in this sex segregated column is discriminating.

I think Mrs. Matson will get into this in more detail, but the ordinance defines discrimination as any difference on the basis of sex and by placing an ad in the sex segregated column, the advertiser is discriminating and the newspaper is aiding that.

What about the hypothetical situation I put to your friend about the man or the woman who is middle aged that has no skill, except knows how to take care of a house; putting an ad in the paper, a middle aged women wishes housekeeping job living in.

No problem with that?

Eugene B. Strassburger, Jr.:

I completely disagree with the answer that Mr. Volk gave.

Warren E. Burger:

What would yours be?

Eugene B. Strassburger, Jr.:

Well first of all it’s not covered by the ordinance.

We are talking about Help Wanted and not jobs wanted.

The advertise — the ordinance speaks of an employer, an employment agency or a labor union, placing an add indicating discrimination.

Warren E. Burger:

Alright, let me turn it around the other way now.

Now, we have a man who has a wife, who is a semi-invalid and two small, at least adolescent children and he wants a housekeeper, who is a woman and he would like some stable middle aged women. Can he specify all of that in the ad?

Eugene B. Strassburger, Jr.:

He can do that, because number one, he is not covered by the ordinance either, because the ordinance excludes situations of five or a fewer employees.

Warren E. Burger:

Alright.

Now let’s move over and now it’s an employment agency doing this.

Eugene B. Strassburger, Jr.:

If the job is certified as a bona fide — as having a bona fide occupational qualification, then either an employer or an employment agency can place this type of ad.

This is why the screening argument that the petitioner makes is a complete red herring in this case.

There is no screening argument even if this were a situation where the speech allegedly being chilled as in Smith against California were protected speech; there wouldn’t be any screening argument, because it’s perfectly clear to the newspaper, whether this job has a bona fide occupation qualification.

It doesn’t have to guess whether there is a BFOQ for this job.

Section 7 (d) of our ordinance as well as a parallel provision in the State ordinance provides that if there is a — if the employer wants a bona fide occupation exemption, it can apply to the Commission and get that exemption.

So there is no problem in your —

William H. Rehnquist:

But the Commission isn’t required to give that exemption.

Isn’t that some judgment left with the Commission as to whether or not it will give such an exemption?

Eugene B. Strassburger, Jr.:

Well, certainly there is a judgment involved.

Eugene B. Strassburger, Jr.:

There is a judgment involved in all of these Commissions as to whether a job cannot be performed by a male or cannot be performed by a woman.

Perhaps, the exemption is somewhat broader than that, for instance, a man probably, could be a lingerie salesman, but probably it would qualify here for a bona fide occupation qualification under our present situation.

This type of job has been granted a BFOQ, even though there is some testimony in the record that shouldn’t qualify.

I don’t know what the Commission would necessarily do with that sort of case, but as far as the Pittsburgh Press is concerned, it doesn’t have any problem as far as screening these advertisements.

It knows because there either is an exemption or there isn’t.

William J. Brennan, Jr.:

Who has to get the exemption, the employer or employment agency or the newspaper?

Eugene B. Strassburger, Jr.:

The employer — the advertiser, whomever that maybe.

Now, in addition to the fact that the paper doesn’t consider whether this is a job that interest men and women, even if this setup were created so as to cater to the reader preference, that would not excuse this violation of the act and the Circuit Courts have so held in the Diaz case in the Fifth Circuit involving a stewardess.

The employer argue, well my customers prefer women as performing this job on airplanes, and the Court says that doesn’t excuse discrimination what your customers prefer and even if —

Potter Stewart:

Did that case involve a newspaper?

Eugene B. Strassburger, Jr.:

No Your Honor, it didn’t.

Potter Stewart:

Well, that’s the big difference here.

I mean that’s at least one of the two issues here, is the First Amendment and the First Amendment doesn’t protect airline companies.

Eugene B. Strassburger, Jr.:

Well, Your Honor, our first contention is that these —

Potter Stewart:

Unless they want to speak.

Eugene B. Strassburger, Jr.:

— that these are non-ideas and these headings can’t raise non-ideas to the level of ideas.

And I would like to point out that this statute, this ordinance that we are dealing with here is not an unusual statute.

There are — I think a holding in this case that the First Amendment was violated, would inferentially overturn many, many other statutes, all of which have been sustained by the courts on First Amendment grounds; for instance, the Civil Rights Act of 1964, which was held by the Fifth Circuit in the Hayes case to prohibit an employer from placing a want ad in a sex segregated column.

Potter Stewart:

That was one thing.

Excuse me.

William J. Brennan, Jr.:

Have those holdings been predicated in Valentine and Chrestensen?

Eugene B. Strassburger, Jr.:

Alright, most of them have, Your Honor.

Potter Stewart:

It’s one thing, it would occur to me, to prohibit an employer from discriminating in his hiring policies as among races or sexes or anything else and also to prohibit him from advertising that would indicate any discrimination, but that’s quite another thing from the government putting a restriction on a newspaper as to what it can print.

Eugene B. Strassburger, Jr.:

Well, Your Honor, as far as the in-advance a argument is concerned, this Court and other courts have held that the prior-restrain argument does not apply where the speech is not fully protected. For instance, in the Lorain Journal case —

William J. Brennan, Jr.:

That all gets us back to Valentine and Chrestensen.

Eugene B. Strassburger, Jr.:

No, Your Honor, it doesn’t necessarily.

First of all, we feel that this falls directly within Valentine against Chrestensen.

The case is interpreting the 64 Civil Rights Act, the 68 Civil Rights Act and various other statutes involving cigarettes, lotteries, corporate press releases, this sort of thing who all held that commercial speech is not protected.

But in addition to this, even if we were to assume that we are dealing with speech that, in some circumstances, might have been protected, this Court has also heralded general regulatory statutes which incidentally affect speech are permissible if there is a valid societal interest involved.

For instance, just last term in Branzburg against Hayes, which I am sure you are familiar with, with all the publicity recently; eight of the nine justices here said that we have to balance the First Amendment interest of newspaper reporters against the governmental interest and force testimony.

Eugene B. Strassburger, Jr.:

You didn’t all agree as to where that balance should be drawn, but you all said it had to be balanced.

Potter Stewart:

But that case didn’t either involve a government telling a newspaper what it could and could not put in its newspaper.

Eugene B. Strassburger, Jr.:

Well, there have been cases which have so held in this Court — it’s our feeling that what the petitioner says here is that we are entitled to special protection, because we are a newspaper, but in this economic area it’s not entitled to more protection just because it has editorial functions, than the ad in Valentine was entitled to protection because it was appended to the back of a political protest.

This Court in the cases involving the National Labor Relations Act, the Fair Labor Standards Act, Sherman Antitrust Act has held that newspapers are subject to those acts and in the Lorain Journal case, that was a case where the newspaper was refusing certain advertisements because it refused advertisements whenever the advertiser advertised in a competitor competing radio station, and this Court said that it was permissible to tell that newspaper that you have to accept advertisements from those advertisers.

Warren E. Burger:

Or at least you can’t refuse them on that ground, prohibit more narrowly than that?

Eugene B. Strassburger, Jr.:

I think that’s probably true.

I know this Court has before cases now as to whether various media have to accept certain advertisements as to whether they have the full freedom of contract there and I don’t think that’s involved in this case.

Warren E. Burger:

You seem to separate the First Amendment completely from the economic aspect, but could a newspaper survive if it just sold the newspaper to readers without any advertising?

Eugene B. Strassburger, Jr.:

Your Honor, we are not saying that the newspaper can’t have this advertising.

All they have to do is put it in a single column.

According to their argument, they are losing money by putting these in separate columns.

I don’t know whether that’s true or not but it’s clear from this record that there is not much difference one way or the other as far as money is concerned in this case.

This isn’t a situation like the Grosjean case, where there was an advertisement, excuse me, a statute aimed directly at a newspaper, and here it’s a situation where there is a general anti-discrimination statute.

A statute premised on an important governmental interest here; I think it’s an overwhelming reason here.

The vast amount of discrimination against women, the statistics are in the record here, Mrs. Matson will go into this and in addition to the overwhelming reason for this, the burden on the press is absolutely minimal.

If the Press, if the newspaper is expressing any kind of idea here —

William H. Rehnquist:

Mr. Strassburger, supposing that your Commission applied the regulations and ordinance that it now has and you felt that it just wasn’t getting far enough in eliminating employment discrimination, because there were still nuances in the want-ads that it just couldn’t seem to eliminate, and supposing, the City of Pittsburgh then decided that there will be no Help Wanted ads permitted in the newspapers, we are going to funnel them all through a public employment agency, where we can make sure that these nuances are eliminated, now would you think that was constitutional?

Eugene B. Strassburger, Jr.:

But then, you have a situation like the Grosjean case, where the newspaper is really being deprived of its lifeblood and I would think that that would be an entirely different situation than we have here.

I’d just like to say one other thing with regard to the fact that this Court, even the absolutist on this Court with regard to free speech, have said that conduct can be regulated, and that’s what we have here.

The newspaper isn’t prohibited from expressing its idea.

If all that we are doing was expressing an idea, it would be satisfied to express it in an editorial or a news column, but it said, “Well, we have to do it in the want ad headings.”

Potter Stewart:

What is the conduct?

Eugene B. Strassburger, Jr.:

The conduct is participating in this discriminatory scheme and again and again, just a last — few months ago in California against La Rue, Justice Rehnquist said that conduct does not have the protection that pure speech has.

Lewis F. Powell, Jr.:

Mr. Strassburger, in connection with the distinction you are now drawing between editorial and commercial advertising, may I put this hypothetical?

Suppose an employer who profoundly disagreed with the social utility of the ordinance in question, went to the newspaper and said I want to buy a full page ad, in which to express my disapproval of the ordinance and including a statement to the effect that I want to engage women only for whatever his business maybe and I want to state the reasons why I think they should be exempt from this law or that the law is invalid.

Would that be something that in your view the newspaper would be prohibited from publishing?

Eugene B. Strassburger, Jr.:

Your Honor, if we are dealing with just the editorial type advertiser, if they are not actually hiring people, then I think it’s a New York Times against Sullivan situation and this is protected speech under the First Amendment.

They could have this editorial advertisement.

If, on the other hand, this is just a subterfuge refused like Valentine against Chrestensen with protected speech on one side and unprotected speech on the other, then I feel that there is no protection for this and they are governed by the ordinance, they are violating the ordinance.

I would want to conclude by saying that both press and its amicus, the Newspaper Publishers Association, see much more concerned about future cases than this case and it seems to us that so long as this Court sits, it can prevent the intrusions on the First Amendment which petitioner fears and which we desire no more than they.

Eugene B. Strassburger, Jr.:

Thank you.

Warren E. Burger:

Mrs. Matson, your colleague Mr. Strassburger has used up some of your time, but in view of these arguments we will give you your full 10 minutes.

Marjorie H. Matson:

Thank You Chief Justice Burger, members of the Court.

I am representing in this proceeding, The National Organization for Women.

The National Organization for Women, as I am sure you must have heard and read in the newspapers with no hierarchy, is an organization, which is committed to the advancement of the rights of women to the elimination of discrimination based upon sex.

It has been in existence for a number of years and in this case, the original complaint was filed by a male member of NOW Gerald Gardner, the treasurer of the organization and an active member in the group.

The organization participated in offering testimony at the Commission and was instrumental in bringing in the Federal officials who testify in support of the policy which was adapted by the city ordinance and which was being, we contended, violated in terms of the want-ad classifications used in the Pittsburgh Press and the only other metropolitan newspaper the Post-Gazette.

The Commission found in our favor and made specific findings of fact, which were then affirmed by the higher state court to review this, the Commonwealth Court, should be fairly conclusive of the issues involved here, particularly in terms of the limitations which this Court has observed in recent years, as to the review of substantive due process questions.

Now, of course, the real thrust of this case is the attempt by women to abolish a very important, albeit it may seem subtle, attempt to keep women in the place that they have traditionally been.

And in fact, the argument for petitioner suggest this.

They talk about women being secretaries and apparently this is the basis for their whole classification system, that is that there are certain kinds of jobs which women have had traditionally and therefore they should ought to go on having in the future.

Now this is the kind of thing that is involved in this case.

The failing on the part of no doubt, some of the employers who advertise in the paper and certainly by their own admission on the part of the newspaper that women should be kept in their place and this is the issue involved here as to whether they may, in fact, to do that in view of the Equal Protection Clause, the Due Process Clause, the other aspects of the Federal Constitution which have served to bring Black people out of bondage, and which now we are calling upon to serve as a way of meeting the economic problems of women.

At the hearings before the Commission, and we have given you some statistics in our brief as well and other of the amicus briefs contain economic data here, which is of great significance in this case, because it does establish that women have been discriminated against job wise; that they have been deterred from applying for jobs, because they believe that they were not welcomed.

And at this point in the process, the deterrence from even applying for a job, that the Pittsburgh Press comes into the picture.

These classification had — as you now are very well aware, were set up by the press, but the place where the ad is to go, whether it is to go under female interest or male interest is determined, according to the testimony of the press employees who appeared, as being the decision of the employer himself.

Now the covered employer, who comes to advertise and who wants to discriminate against women, but knows that it’s against the law and that he can’t put in an ad saying Males Only or can’t put it under a Males Only heading, can turn from this euphemism which is now being used by the paper; the same headings that were used before — the headings that were used before were male jobs, female jobs, help wanted for a male or female.

Now they have changed that only slightly, only to say male interest, female interest, so that the same stress will look under female interest jobs and the tailor, who makes much more will look under the male interest jobs and this is such a —

Byron R. White:

Why wouldn’t it be enough for the State to move against the employer and forbid the employer from indicating to the paper any preference whatsoever unless he had a certificate?

Marjorie H. Matson:

Well, Your Honor, the ordinance itself provides for people to get a certificate, if they want — if there is a bona fide occupation qualification, but we are trying to break down the classification system.

Byron R. White:

Do you think the Press would ever — do you think the press would continue this if employer was forbidden when the paper asked him to specify a column?

Marjorie H. Matson:

Yes.

Byron R. White:

Let’s assume for the moment that no employer would ever break the law if it was forbidden to indicate a preference and that whenever they were asked, they say “Awfully sorry, we just couldn’t care less.”

Do you think the Press itself would then go on with the scheme?

Marjorie H. Matson:

Well, that question, I guess, would have to be addressed to the Press.

Byron R. White:

But don’t you have the answer to that question before you can justify putting a prohibition on the Press itself?

Marjorie H. Matson:

Well, Your Honor, the thing is that we could knock off one employment agency after another and go through all of those, that’s clearest cut case here.

I suppose get each of them enjoined from carrying the ad.

Byron R. White:

Alright, so in this case, it’s a conservation of resources, there is only one newspaper.

Marjorie H. Matson:

It’s a way — well, there are two but they are published together, so it’s the same difference, but what we are trying to do is to get at the advertising, which is the thing, which — the advertising headings, which are the message which is being conveyed to women that they should stay away from applying for a particular job.

Marjorie H. Matson:

And as the Solicitor General said in the amicus brief that was filed in this case, the only message meaningfully communicated by the headings is that employers advertising thereunder will discriminate and they will hire, and that thus it does serve as a deterrence you see to women applying.

It’s not anything that is said in the ad itself, rather it is the headings under which the ads appear, which deters women from applying jobs, for jobs for which they may very well be qualified.

Byron R. White:

Well, I take it that you concede that, don’t you that if you could get an injunction against the press you can also get an injunction against the employer for communicating with the press as to what column to put it in?

Marjorie H. Matson:

Well, then you see you would be left —

Byron R. White:

But could you or couldn’t you?

Marjorie H. Matson:

I don’t know that you could, and as a communication of that kind I shouldn’t think that we can reach that very readily, Your Honor.

Byron R. White:

Well not readily but legally, couldn’t you?

Marjorie H. Matson:

It seems to me that you would have to enjoin the individual employment agency or employer from advertising under a Male Help Wanted column or a Female as the case maybe.

And in that case, I suppose that those employers could resort to the male, female heading which is available, and which is practically not used at all, in terms of the column inches of spaces, only a 100 and in an average issue of Sunday paper, as compared with 1600 column inches of male ads and 400 for female ads.

So, that you would have immensely difficult problem of reaching each of the employers, and it is a job which really is not forced upon us when we have the ordinance which says that, anyone who aids in discrimination, and we say that these headings are an aid, can be reached directly, and this is what we are trying to do in this case Your Honor.

Warren E. Burger:

Thank you.

Mr. Volk you have about four minutes left.

Charles R. Volk:

I don’t think I will need that Mr. Chief Justice, may it please the court.

Mr. Strassburger said something I think needs to be corrected.

When he pointed out that the press is not called to do any screening; this is an error which was picked up by the Appellate Division Courts of New York in National Organization for Women versus the States Division of Human Right, which was just reported in the CCH Employment Practices Decisions service, wherein they distinguished the Pittsburgh Press case in one of their own where they did not permit a court to bar the the — that was a rule in our way in this particular given fact situation.

They permitted the sex segregated want-ads to continue.

They distinguished the Pittsburgh Press case in that the Pittsburgh Press had a ready screening device with this certificate, but that only applies to the one exemption; the bona fide occupational qualification exemption.

The Ordinance also excludes domestics and it excludes people who do not live in the City of Pittsburgh by Commonwealth Court order and it excludes employers of less than five, so that the Press would still have thrust upon it the burden of screening out these other criteria.

William J. Brennan, Jr.:

Mr. Volk if the Equal Rights Amendment is ratified, does your your First Amendment argument then (Inaudible)?

Charles R. Volk:

No, I don’t think so.

Pennsylvania has an Equal Rights Amendment to its own constitution and I apprehend the constitution as it reached today to provide equal protection to women.

I don’t hold myself out as a major constitutional scholar, but I have personal difficulty in seeing any rights to be granted to women by the Equal Rights Amendment that they don’t already have by our own glorious document that had served us so well for so many years.

I think they have all the rights that anybody else has.

And the only other one point I wanted to point out is that Mrs. Matson indicates that the Pittsburgh Press is, in essence, acting as a discourager of women.

Actually this is not the case, the Pittsburgh Press is not attempting to keep women in its place, whatever that maybe and I think that’s a ratio up that’s calculated to cause certain emotional reactions in the justices.

Pittsburgh Press is not engaged in any such action at all.

The Pittsburgh Press just simply wants to reflect in its want-ads the statuses that exists in job preferences, and whether the National Organization for Women likes it or not, they do not wish to be conscripted as unwilling janissaries in the fight for social change as the National Organization for Women foresee it.

Thank you gentleman.

Warren E. Burger:

Thank you Mr. Volk.

Thank you.

Warren E. Burger:

The case is submitted.