UPREME COURT OF THE UNITED STATES

~ . 'u 7'2-41P

Pittsburgh Press Compar1y.l PC'tJtrunPr On Wnt of CertiOrari to

1), / thP Commonwealth ThP P1ttsburgh Commission Court of Pennsylvania.

on Human Relations et al

[ .) l!IIP • f\.)73 j

MH. JnHTICE Pow~o;LL r!Plivered thE' opmwn of th ( 'ourt.

The Human Relatwns Ordwanc<> of the C1ty of P1tt~-·

burgh (the "Ordinance'') has been construed below by the courts of Pennsylvania as forbidding newspapers to carry "help-wanted" advertisements in sex-designated columns except where the employer or advertiser is free to rnake hiring or employmf'nt referral decisions 011 thP basis of sex. We are called upon to decide whPthcr th<' Ordinance as so construed violates the freedoms of speech and of the press guara11 terd by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understandiug of thr context in which it arsises is critical to its resolution .

r The Ordinance proscribes discrmunatwn in employ­

ment on thE' basis of racr. color, religion, ancestry, lla~

tiona] origin. place of birth. or RPx.' In relevant part.

1 The full tPxt of the• Orc!Inanc·c· and the H){)\J amendment adclmg ~c·x to th<' II~t of pro~rnlwd cla~:<Ification;; 1~ rPprodurPCi 111 the· AppPnclix App., pp 410a-4:~tiu

7:2-419-0PINION

2 PTTTSBURCH PHESS CO. I! HUMAN REL. COMl'vi'N

~ 8 of the Ordinance declares Jt to be unlawful employ­ment practice, ''except where based upon a bona fide occupational exemption certified by the Commission'' :

"(a) For any employer to refuse to hire any per­ROll or otherwise discriminate against any persoll with respect to hmng because of sex.

;,( t>) .For any 'employPr, ' employment agency or labor orgamzation to publish or cirru late, or to cause to be published or circulated, any notice or adver­tisement relating to 'employment' or membership which indicates any discrimination because of . sex.

" ( .1) For any person, whether or not an employer. Pmployment agency or labor orgalllzatwn, to a1d . Ln the doing of any act declared to b<-' unlawful by this ordmance

The present proceedings were lllltiated on October \1,

1969, when the National Orgamzatwn for Women. ln(' .. (NOW) filed a complamt with the Pittsburgh Commis­sion on Human Relatwns (the "Comnussion "), which 1s charged with Implementing the Ordinance. The com­plamt alleged that the Pittsburgh Press Co. ("Pittsburgh Press'') was violating ~ 8 ( j) of the Ordinance by "allow­mg employers to place advertisements m the male or· femalt' columns, when the .Jobs advertised obvwusly do not hav€' boua fide occupatiOnal qualificatiOilS or excep twns . . .Fin(hng probable cause to believe that Pittsburgh Press was vwlating the Ordinance. the Com­missiOn held a hearing, at whiCh It received evidence and heard argument from the parties and from other Ill­terested orga1uzatwns. Among the exhibits mtroduced at the hearing were clippings from the help-wa11ted ad­vertil:)ements earned HJ the January 4. 1970, edition ot

7:2-419- 0 PINIO X

PlTTSBURGH PHESS ('0 v. HU:VIAN BEL. COMM'N ;{

thC' Sunday Pittsburgh PrC'ss, arranged by column ." In many cases. the advertisements consisted simply of the job title. tht' salary, and the employment ageucy car­rying the listing, while others included somewhat more extensive job descriptions."

On October 23. 1970. the Cornmisswn Issued a Decision and Order.' It found that during HJ69 Pittsburgh Press earned a total of 248,000 lwlp-wanted advertisements; that its practice bC'fore October. 1969. was to use columns captwned "Male Help Wanted," "Female Help Wanted.'' and "MalC'-Fernale Help Wanted II; that it thereafter used the captions "Jobs-Male Interest, II "Jobs-Female Interest." and "Male-Female" ; and that thC' advertise­ments were placed 111 the respective columns according to the advertiser's wishes. either volunteered by the ad­vertiser or offered 111 response to mquiry by Pittsburgh Press." The CommJsswn first cone] uded that ~ 8 (e) of the Ordinance forbade employers, employment agencies. ami labor organizatwns from submitting advertisements for placement in sex-designated columns. It then held that Pittsburgh Press. 111 violatwn of ~ 8 ( J), a1ded the advertisers by maintaming a sex-designated classificatiOn system. After srwcifically consHlermg and re.wctmg the

2 Till'~<' <'Xhib1t~ :trr reproduc·r<l in the· Append1x. App .. pp

" For rxnmp!P~ oft IH'H(' wnnt-nd~. ~rr t hr Appt>n(bx to th1~ opmwn , PI> 15- Hi

'Th<· full tpxt of thr Connu1~~~on ~ U<·eJ~IOll aud Ord!'r 1:-- ~<'1

forth 111 th<' App!'nd1x to tlw J>Ptitwn for C'!'rtwran Prt . App .. pp lu- l~a

·· Th<' Comtni~~IO!l ~ Jlt't'lheally lound that ','> T!w 1'1tt:<burgh Pn·~~ pc•rmn., tlw advertlH'I' to o<Plrct tht·

column witlnn wh1ch 1t~ advrrtJ~<·mrnt ~~ to I><' m~rrted •·fi Wh<·n an adv('f'tJ~rr do<'" not md1catl' a column, thr Pn'""

a;;k:, tlw advPrtl~c·r wlwther It want~ a male· or frmale for tlw JOb and tlwn m~rrt::; tlw advrrll::;t:' l11<'llt Ill thr .]ob"-male mtrmst or ,1ob~-frmalP ultrn·Ht (·olumu areording!Y " Prt. App., p, Uia .

7'1-41 0-0PU\TO

4 PTTTSBUTIGH PTIESS CO 11 . HUMA~ HEL. < 'OiVIMX

argument that the Ordinauce vwlated the First Amend­ment. the Commission ordered Pittsburgh Press to cease and desist such violatwns and to utilize a classification Hystem with no reference to sex. This order was affirnwd in all relevant respects by the Court of Common Pleas!;

Ou appeal 111 the ('ommonwralth Court. the seopP of the order was narrowed to allow P1ttsburp;h Press to carry advertisements tn S(~x-drsiguatt'd columns for .JOb~ exempt from the antidiscrmunatwu proviSIOtlS of the Ordinance. As pointE'd out 111 that court's otwtwn. th Ordinance dot's not apply to employers of fewer thau fiw 1wrsons, to employers outside the City of Pittsburgh. or

to rehgwus. fratemaJ, chantable or sectanao orgatuza­tions. uor does It apply to employment Ill domestw servH·<~ or tJJ .JObs for which tlw Comnussm has certified a bona fide occupatiOnal <'xceptwn. fhc modified ordPr barR ''all referencE' to sex ut employment aclvertismg colum11 headings, except as may be exempt under said Ordwanc<-. or as may be certified as exempt by said Comnu~::>swu .'

4 Pa. Cormnw .. 448. 470. 287 A. 2d 161, 172 (1!:172) The Pennsylvania Supn•nw Court dellled revww. aud wv·

granted certwran to deCJde whether. as Pittsburgh Pres~:, con tt>mls. the modified order viOlates the F1rst Amend­ment by restnctmg Its Pditonal .JUd~meut . 4mJ {' :-, 1 036 (1972). 7 W P affirm ,

'· Sl'e l'<·t . App ., p. iva i P1tt::<burgh Pre:;~ :1!:-.u argut·~ that tht· Urdwanee \'iolatP~ dnt­

prores>< Ill that tlwre I::< 110 ratwllal eomwetwn bl'twE'en ~t·x-d<>:;JgnatPd colum11 lwadn1g» and :;px di>'rruumat 1011 Ill <·ruploymt'llt. It draw~ attrnt1011 tu a dJ;;chumpr winch 1t r1111~ at thE' begmmng of Pac!J of the " .Job~-Mal<· llltl'rP~t ' and ",Jobs- F'<•maiP lntt·r<'~t" !'oltunn~

'• NoTIN' to ,Job S<><·ker::;

.Job~ art> arranged undPr :\Jalt· ami Frwall' cla~;;Jheatwn~ for till' convemt•neP ol our l'<'acl<'r~ Tin~ ~~ dam• b<•eau~P moHt .JOb:::. gt>ll rrall~· appt•al more to pPrHoll~ of onP ;;('X than tlw otll('r. \ ' anou~

IHwt-o and ordJ(UlC~·s-loral, ~tate <tll<i frdernl. proh1bit du;rriminutlon J . ~r-L----

I:2-4Hl- OPIN101\

hTTSIHTTWH PHESS ('() , v HlJ:VlAN HEL. ('()\1:\J'X 5

IT Ther(' is little nerd to reiterate that the freedoms of

sperch and of the prrss rank among our most cht>rislwd libertit>s. As Mr. Justice Black put it. "In the First Am('ndnwnt the Founding Fathers gave> the frt~e press thi: proteetwn It must havP to fulfill its PSS<'ntlal rok 111 uur· riPuwcracy ." Yew }'ork 'l'unes v ( 'mted Stales, 40:5 l ' . ~ - 713, 717 ( H)71 J ( cuncurrmg opiniOn). Tlw dura,. h1lity of our syst('lll of self-~overnnH'nt hin~<'R upo11 thl' l>rPSPrvatiOil of theR<' fret-doms

"I~ J 111Ct' mformed public opu1wn I~:> the most pot<'llt uf all rC'stralll ts upou lliiSI-!,UV<'rillllPilt, thl' suppn't'i" SIOil u1 abndg<'HH'nt of the publ1c1ty affordl•d by u free pri:'SS cannot tw r('ganled otherwise than \\'ItJ1 gra V<' <'OllCt'ril A fret' JH'l'SS stands as oiH of tlw great interpreters betwl'en the govemme11t and the people. To allol\ It Lo bt' f('ttered ts to f<'LtPt oursel vrs. · Gros]ea11 v .-lmen.co '' Pre88 ( 'o .. :w7· r :-~. 233. 25o ( Hlan l

The repeated Plllphasrs aecordPd tll1:s themt' in the d<· <·1sions of th1s Court St'rves to undPrhn<' tlH' narrowill'i:>i-­of thP recogmzed exe<>ptwns to tlw pruwipl<• that the pn·ss

itt Pmplo.l··nH'IIt IJl'l'all~<· ut ~<·:-- unl<·~~ ~<'-' i~ ;1 [)()ll<t hd<· u<'l'llj)<tttullai l'l'{JliiTPtn<·nt Unl<'~~ tiH• adv(']'tJ~<'IlH'tJI 1t~rlf "JlPCJfi!'~ OJH' ~!'X 01

tltt· othr1 . Job ~P<·hr~ ,;hould a,;~lllll!' that tb<• adn•rtl"!'l' 1nll ('011 -

"HI!'f applH•ant~ of t•trlwr ~! '\ 111 c·ompham·c· w1th tiH· law~ agHIII~t dJ~('J'IJTIIJlH t!Oil '

It "ullict'" to dt~]H>st· of th1,., <·onlt'JltJOII that rlw C'ommt~stoll ~ <'UIIl tton-~rn:-,c · rPcognttton that tlw two arr c·ontH'<'t<•d ts ~upport!'d h.1 <'vHI<'n<'<' 111 t lw prPs<·nt n·<·ord t't•t· App .. pp. :.:?:~(ia-:2:m;~ . SPP ;t bo //aile~ 1 ( 'ruted A1r Dill£'~ . .J.(i.J. F . :.:?d lOOfi, 1009 (CA5 l!J/2) Tlu ( :utdrlmP~ Otl DtscruntnatJon Bt•eau"!' of SPx of tlw Frd!'ral Equ;tl Emplo~·nwut Opportumt1 ( 'ommts~lon rPHPrt a "llmla r <'onrht"ion

:-It·< · ·.W < 'FH & I fiO.J. ~ .

't2-4l!=I- OPT'-. Tl , ,~

Q PITT~B1 l llGH PliE:-;S CO ,. HT\JA~ HEL. C:U\IM ':!\

Jllay 11ut be n·gulated b:v the Covc·rnme11t . Our iuquiry­IUUI:'t therefore be 11·hethl'r the <"hallenged order fall~:>

WIthin any of thPse cxcrptious At the out.set. how(•ver, 1t IS nnportanL to .identjfy with

~ome care the 11aturt' of tlw alh•g<·<i abnd~meut. Tht~

'i~ 110t a case lll wh1eh the c:ha llt'llgl'<i Jn \\ arguahly dJs­

abJes the press ily UIJdermiiiillg 1t~ Illstltutwnal vwbihty . . \:-; thc pn·::;:,; has c·,·olvt·u fru111 1:111 assortm£'ut ot ~>mali

priiltl'rs 111to a dJVen:;p aggn•gatwn lllC'ltidl!lg large pulJ~

lishlllg elllpi!'('S a:-; 11 vii. th<• parallel gruwth a1HJ eum~

pi<'XJty of tlw eeOJJollly havl' led to cxtclli:'Jve regulatory l<'gislation froltl wl11ch "It I he pubhslwr ut a uewspaper has 110 srweiaJ LinlliUillt,Y .·lssonated Press V. NLRB . :~01 l- . ~- lo:-~. 1:):! il\l37) Accordl11gly. tlwi C'ourL ha:,. upheld applJcatw11 t.o till· pn·ss of tlH· ~atJUIJal Labur H.elatiuns Act. id .. tlte Fa1r Labor :-)tandardE: Act. M ubec

l·fh1te Plrnns Pul111shwy Cu .. :tti l . :::-l. 178 (HJ4ti) ; Oklahoma Press fJubhsh.inr; ( 'u. '. Wallwy , ;)~7 U. ~. 18b ( l!:l4t:i!. and the t>herman Aut1trust Act. Assonated Pres8

v Cniled States, 326 LT ;-; , 1 ( 1\145), C·it~zen Publishwy Co . " · ( 'nited ,)t.aLes, 3\J4 1'. ~ - L:H ( Hl6~l). Sel' alDo Hranzburg v. Hayes, 40~ 1·. ~. ()(-i5 11\17:2). Yet thl ' < 'ourt haf; recug1w:C'd on S<'V<'ral Ul'<'WilOtl::- Llw spt>cwl 1 t IStJ tu tJOtla I tH•ed:-; uf a v1goruu~ JH't'Dti i)y DLnkmg dow u la\\s taxing til<' ach-ertlslllg revenut' of newspapers w1th Ctrculatwm; Ill exe<·~:-; of :20.000. Gros)ea11 \. Atnertcut'

flress Co ., supro, reCJL!lring a IICen::-:e fur the distributw11 uf pnnted matter. Lovell v. Unffin, 303 l'. t> . 444 (1\)3~1 .

and proh1b1t111g Lh<~ duor-to~door distnbutiUil of leafiPt:-. 1\llart?:n v. SLruther8, 31V lJ. S. 141 (1\143;'

But Ilo sugw·stw11 II' made 111 th1s cas<' that the .P1tt::;~

burgh OrdlllaiH·e ,,-a:,. passed \\'Ith a1ty purpoi:'l' of muz­tling or eurbmg thP prt>R:-. \jot doe:-. P1t.tsburgl1 Pr<•:-;f'

':-'t·e ; liH> Jo/1(' -' 1 Upl:' ltku, -~ IH l ~ I(J;i I I\-l4.il 1)1/l 'r/ul'h '•.

!'r>li 'i'-'!Jiuu.ll?.ll, ;)J~I I . ~ l(),'i (lH4:i.t,

·t ',

. . ,

"'·

7'2-41 9-0Pll'\JO;\

PlTTSBUHOH 1-'HESS CO. 11 , HTJMAN REL. COMM'N 1

argue that the Ordinance threatens its financial viability !J'

or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a con~ tention would not be supported by the record.

TIT T11 a limitPd way. howevPr. the Ordlllance ae co11strue(!"

does affect the makeup of the help-wanted section of tht· newspaper Under the modified order. Pittsburgh Press will be reqmred to abandon its present policy of providing sex-designated columns and allowing advertisers to select the columns in whwh their help-wanted advertisements will be placed. l11 additlOll , the order does not a!Jov. Pittsburgh Press to substitute a polwy uuder 'Nl11ci1 i( would make a11 mdepPndeut decJsJOn regarding placenwut in sex-designated column::, .

Respondents rely pnncipally 011 the argument that this regulatiou is permissible because the speech is cumrner• ciaJ speech unprotected by the First Amendmeut. fhe commercial speech doctrme 1s traceable to the bnef opin ~

J.on in Valen t·ine v. C hrestenseu, Jlo U. ti. 52 ( Hl4:2) , sustaining a City ordmance whwh had been Interpreted to ban the d1stnbutwn by ltandb1ll of au aJvertlsenH:~HL

soliciting customers to pay adnnsswu to tour a sub­marine. Mr. Justwe Roberts. speakmg for a unanimous C\"1rt . ~ai d :

" We arp rlear that the Constitution lmpu8e~ uo such res tram t ou goverumen t as respect~

purely 0omtuerCJal advertlslllg .' :·Ht\ l l :-l .. at, .14 .

" ln n·~pon~l' to qul',;tionmg ill 1>l'iil nr~LJlll('llt . couu~d for l'ltt~ ­tJIIrgh f'rp~" ,-:t;Jt<'d onl:- ·

'' ;\low , l 'm uot prl'parl'd lo <Jn~wt·r wbl'tlH•r tiH· eompall:'o uJ:tl\1":-mmw:-· on Jwiint-adsj or not l ~U~Jll'Ct rt doe::; . Tlwy cllilq~;l ·

fur wnllt-iid:,; , and tht':'o' do makC' 11 lut ol' thC'II' rE'vPJJlll' in tlH' J H'W~

p <lflt'J through adv<" rti~IJJg, ol' cour,;p ; and I ,,IJsjwct 11 II:' pr·ofiudJi<· ' rr ul Om/ A t·g ., 11 I 0,

n -±HI- OPTN10 -

PTTTSBOIWI-T PHES8 CO. 11 f-I(f:V1AN" REL. ('O:VL\I'i\

Mubsequenl case:; have demont>trated, bowPver, that peech 1s not rendered commercial by the mere' fact that

Jt relates to an advertisement . In Sew York Times v Sull1"va11, :-37() l ' ~ . 254 ( 1904), a mty official of Mout gomery, Alabama, brou!!h t a libel actwn agamst four elergymen and the Nc•w York Times. The names of tht• clergynwn had appeared 111 an advertisement. carnrd lll

thP Timc•s. enticizmg polleE' actwn chrf'cted agawst mcm­t)ers of the CJvil nghts mowmeut. In holdwg that tl11s political aclvertisemf'lll wai:i Pntltled to the same Jegrre ~f proteet1011 aR ordlllary speech. the Court stated

"That the Tune~ was paid for publishwg thrs ad­vertisemen L IS as unmatenal Ill this c:onnect1011 al­Ii,; tlw fact that newspapf'ri:i alld books arr sold .37() l ' ~ .. at 2ob

~ee also ::itmth v. Caltfurma, 3o1 U. t). 147 ( HJ59), Uwz­qurg v. l 'ntted States, 383 U. S. 463,474 (l\:i66). If a newspaper 's profit motive were deterrmnative. all aspects of rts operatwns-from the selectwn of news stones to the choice of editonal posJtwn- V\-ould be subJeCt to rt'g­ulatiOIJ 1f 1t could be established that they were eou ductecl With a VIeW toward lllCreaseJ Sales. ;:::iuch a baSIS

for regulatw11 dearly would he' IIH:ompatihl<' wrth tlw First A.memlmen t

The cntJCal featun• of the advertisemellt 111 Valentine v Chreste n~>e n was that. 111 the Court 's view, It did no more than proposE' a commt•rcial transactiOn, the sale of admisswu to a submaru!P. lu S e w York Tune~> v. ,'iul­lwan , MH. J Ut:lTICE BHEN NAN for the Court found tlw I 'hrestf:'nsen advert1senw1lt Pasily distlll!!;UUdrabk

"The publrcatwu iJpn· was not a 'commereiaJ advertisement 111 the sense Jil whiCh the word wa:,; used 111 (' hresLelJSell . 1 t communicated mformatwu . t>xpressed opulJOtl . remtt'd gnevances, protPsted <'lanned abusP~. and i:iOught financ,Ial svpport on b(-'•·

72-419-0PINIO::t\

PITTSBURGH PRESS CO. v , HUMAN REL. COMM'N 9

half of a movement whose existence and objectives are matters of the highest public interest and con­cern.'' 376 U. S., at 266.

ln the crucial respects. the advertisements in the present r·ecord resemble the C hrestensen 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 criticiz;e the Ordinance or the Commisswn's enforcement practices. Each is no more than a pro­posal of possible employment. The advertisements are thus classic examples of commercial speech .

But Pittsburgh Press contends that Chrestensen IS not applicable, as the focus m this case must be upon tht> exercise of editorial Judgment by the newspaper as to where to place the advertisemeut rather than upon 1ts commerical content. The Commisswn made a fiuding of fact that Pittsburgh Press defers m every case to the advertiser 's wishes regardmg the column 111 which a want-ad should be placed. lt is nonetheless true, how­ever, that the newspaper does make a Judgment whether or not to allow the advertiser to select the column. We rnust therefore collsider whethl'r th1s degree of .1 udg­mental discretio11 by the newspaper with respect to a ]mrely commercial aJvert1seme11t is disti11guisha.ble, for the purposes of First Ameudmen t analysis, frorn the cuu­tent of the advertisement itself. Ur, to put the questiOll. d1fferently, 1s the couduct of the newspaper w1th respect. to the employmeu t wan t-ad entitled to a protection under the F1rst Amendment whiCh the Court held w ( 'hrestensen was uot a variable to a connnerClal advertiser'?

Under some circumstauces, at least. a uewspaper 's e<.h­tonal .1 udgments u1 eounectwn w1th au advertisement t,ake on the character of the advertisement and, lll thosP cases. thP :"Cope of the newspappr's First Amendment pro-

.. \

i2-.J:l!t-OPINlON

10 PITTSBUHClH PRESS CO v. HUMAN HEL. COMM'T\

trction may be affected by the content of the advertise­ment. 1 n thP context of a libPlous advertisement, for example, this Court has held that thP First Amendment does not shield a newspaper from punishment for libel when with actual malicE' it publishes a falsely dPfamatory aclvPrtisemeu t. X e·w )' ork Times v Sullivan, supra, :~76 P. ~ .. at 27\::l-280. Assumlllg the requisite state of nund. then. nothing w a newspaper 's editorial decision to accept au advertisement changes the character of thE> falsely defamatory statPments. The newspaper may not defend a libel suit on the ground that thP falsely d<>fama­tory statements are 1wt Its owu

:-:lunilarly. a commercial advertisement remain~ com­mercial 111 the hands of the media, at least uuder soml:' circumstances. 1

" ln Capital Broadcasttn(J Cu. v. Acttnq Attorney General, 405 U. ~. 1000 ( 1972), aff'g 333 F. 8upp. 582 ( DDC H)71), thiS Court summarily affirmed a clistnct court deCisiOn sustaining the constitutionality tlf 15 V. R. C. ~ 1335, whiCh prohibits the electromc rnedm from carrymg cigarette advertisements. The Distnct Court there fouucl that the advertising should be treated as commercial speech, even though the F1rst Amend­ment challengl:-' wa~ mounted by radw broadcasters rather tha11 by advertisers. Because of the peculiar character­IStiCs of the electronic media, National Broadcasting Co. \ . United ::Jtates, 31\::l l'. ~. 190, 226-227 (1943), Capttal Hroadcastw(J IS not dispositive here on the ultimate question of the constitutwnahty of the Ordinance. Lts sigmficance lies, rather, m 1ts recogmtion that the exer-

10 lu /lead v Neu· Aie.ncu Board, :l74 l r S. 424 (196:3), tlu~

Court upheld an UlJUnetioll prohibJtlllg a llt'w~paper and a radio ~tat1on from <'a n~·mg optonwtn~t~· advrrti:oem<•nt;; wh1rh vwlatrd Nrw .\l<'XJCO law. But IH'cau~r tbr 1s.~ur had not br<:'n rai~ed 111 tlw lowt•r rourt~, tlu~ ( 'ourt did not con~IdPr tlw partir::< ' Fm<t AmPndmt·nt challl'ng<' :374 {1 8., at 4:{2 n. L2

7:2--419-0 PIXIO:\

PITTSBURC:H PHJ.::-;::; CO. v. Hr::vJA\ llEL. CO:VJM'N 11

cisc of this kind of cdi to rial .i udgment docs not necessarily strip comtnercial ad VPrtif'ing of its commercial character .ll

As for the preE=ent casr. we are not persuaded that either the dPcision to accept a commercial advertisement which the advt'rtiser directs to b<' plael'd in a sex­designat<•d column or the actual placrrnent there lifts the tl<'wspapn's actions from tht' category of commrrcial speech. By implication at least. art adwrtiser whose• \\·ant-ad appC'ars in tlH' "Jobs-l\tlale lnt<'n'st" column is likely to cliscriminat<' against II'Omen in hiR hiring de­C'lSJOtlS. Xuthiug in a Rex-desigrtated column h<'ading sufficiPntly dissociates the dt'signation from the want­ads placed berwath it to make the• placem<'ttt severable for First Amendment purpos<'S from the want-ads thern­seh·es. Tht' combinatwn. which conwys ess<'tttially thr same messag<' as an overtly discriminatory \\'ant-ad. is Ill practical effect art mt<'gratecl comnwrical statcmen t.

Pittsburgh Press gors on tu 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. lnststittg that the exchang<' of informatiou is as Important in th<' comnwre1al realm as in auy otht•r. th<' newspaper here would have us abrogatP the distlllctwn ))('tween commrreial and other speech.

Whatl'v<·r the nwrits of thi~ cotttf>ntiott may[)(' in other cottkxts. it 1s unpPrsuasive in this cas<'. Discrimination

11 St'<' :tl~o Netc }'ork .'itale l3roadco8tl'rs A880f'Wiwn , .. l 11ited Stoles. -il-t V. :2d \1!:10 (CA:2 191i\.J). eert . d<'lll<'d. :W6 l". 8. 1061 (1~170) ( rE'fii~JIIg 1 o ·"' rik(' down :1 b:111 on hroadC"a:ot~ promo I ing a lottPr~ · ).

1" Srr \ot(•, Frredom of Lxprr~~ion in a Comm!'retal ( 'untrxi ,

'i~ Han· . 1. HrY. 1191,119.5-1191i (l!:lH51. Cf. Capital Broadcastmu Co. Y. Ar·tillQ Attomey Ge11erol. supra, :3:);) F. Supp .. :1l 59:) n. 4:! (Wnght. J .. di~~E'nting) ; ('amp-oj-the-Pilles Inc. "· Nell' York Tunes Co., 1~-t :\.Ii~<·. ;)X9, 5:l .:\ . Y. 8 . :2cl..J:7.1 (1945).

i

72-119-0PINTO~

12 PITTSBURGH PRESS CO 1' H11MAN REL. COMl\I'~

in pmploymeHt is uot only commercial activity, it is illeyal commercial acti v1ty umlrr thP Ordwance. W P

have no doubt that a newspaper constitutionally could be forbidden to publish a wa11t-ad proposing a sale of Jlarcotics or sohcitillg prostitutes. Nor would the result be different If th<.> nature of the transactiOn were mdi­cated by placement under columns captioned "Narcotics for :-:lale" and "Prostitutes Wanted" rather than stated within the four corners of the advertisement

The illegality w this case may be less overt, but we sPe no difference Ill pr111ciple here. Sex discrimmatwn 111 nonexempt employnl('nt has been declared illegal under ~ 8 (a) of the Ordinance, a provisiou not challenged here. And ~ 8 (e) of the Ordiuance forbids a11y employer, employment ageucy. or labor u nwn to publish or cause· to be published any advertisement "wchcating'' sex dis~ cnmmatwn This, too, Is unchallenged. Moreover, the Commission specifically concluded that It is an unlawful employment practice for an advertiser to cause an em­ploynwn t ad vertisenu'n t to be publishf'd Ill a ::wx­dPsignated column .

Rectwn 8 (J) of th(• Ordma11ce, tbe only provision whiCh Pittsburgh Press was found to have vwlated and tlw only proviSIOll under attack here, 111akes 1t unlawful for "any per~:>on . . to aid . . . in the doing of any act declared to bP unlawful by Llus ordlllance." The Comnusswn and the courts below concluded that tht> practiCe of placwg want-ads for nonexempt employment iu sex-desigiJated column:s did mdeed ''aid" employers to mdicatc illegal sex prefereuces. Tlw advertisements, as embroidered by their placemeu t, signaled that the advertisers wt>re likely to sho'A- a11 1llegal sex preference in their hinug deciswns. A11y First Amendment wterest whiCh nugh t be served by advertiSing an ordinary COill­

tnPretal proposal and wluch llll!l;h t arguably outwe1~h thP'

72-419-0PINION

PITTSBURGH PRESS CO. v. HUMAN REL. COIVIM'N 13

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.

IV Tt is suggested, in the brief of ai1 amicus curiae, that

apart from other considerations, the Commission's order snould be condemned as a prior restraint on expression."' As described by Blackstone. the protection against pnor restraiut at common law barred only a system of admin-1stratiw censorship :

"To subject the press to the restrictive power of a licenser. as was formerly done, both before and smce the revolution, is to subject all freedom of senti­ment to the prejudices of one man, and make him the arbitrary and infallible .1 udge of all controverted points in learning, religwn. and government." 4 Bl. Comm. 152.

While the Court boldly stepped beyond this narrow doctrine m Near v. Minnesota, 283 U. S. 697 (1931), in striking clown an wjunction against further publication of a newspaper found to be a public nuisance, 1t has uevel' held that all injunctiOns are impermissible. See Lorain Journal ro. v. United States, 342 U. S. 143 (1951). Tht' special vice of a prior restrawt IS that commumcation will be suppressed, either directly or by inducing exces­sive caution 111 the speaker, before an adequate deter­minatiou that It 1s unprotected by the First Amendment.

The present order does not e11clauger arguably pro­tected speech. Because the order is based on a contmu­ing coursP of repetltlvP conduct. this IS not a ease 111

' '' Brwf for Arnicu8 Cunae Thf' Amf'riran ~ew~papPr Publt~her~ A~80('IHIIOll, p. ~'2 ll . ;{~ .

\ wh~ -1 ~~f" cJ {'

~1\ "fl"l'l 'I 0,..

lo.'lov--1 )

72-419-0PINION

14 PITTSB1TRGH PRESS CO. 11 . HUMAN R.EL. CO::VL\f'N

whid1 the Court is asked to speculate as to the dlect of llublication . Cf. New York Tirnes v . United States , supra . 1\lfort>over, the order is clear and swt>eps no more broadly than necessary . And because no internn relief was grantt>d, thE' ordf'r will not have gonE' into efi"f'ct until it was finally dt>termi1wd that the actions of Pitt:-s:-· burgh Pn-'ss WE're unprotf'eted .

V\'"(' emphasize that nothlllg in our holding allows gov­crnmen tat any level to forbid Pittsburgh Prt>ss to publish and distribute advertisements commenting on the Ordi ­ttance. thE' t>nforcemt>n t practices of the CommissiOn. or the propriety of sex prpfercnces in employmcut. ;\;or. 11 fortwn, does our deciswn authonzp any restnctwn whatevPr~on stones or commentary onginated by Pitts­lUrgh Prt>ss. its columnists. or its contributors. On th<·

('Oil trary . we reaffirm unequivocally the prote<'twn a f forded o the free expression of viewi' on thc:sc and other tssues. however con trovers1al. We hold only that tiH' Commission 's modified order. narrowly drawn to pro­hibit placement Ill sex-Jesignat<•cl columns of aJvertJSe­llH'lltS for nonexempt .JOb opportumties, Joes not infnngP th<~ First Amendment nghts of Pittsburgh Press.

f 1 ffir me d ..

APPE}{DIX:

Among I br <ldv<'rti~E'llll'nt ~ earrit•cl JD thr Sunday PittHburgh PrPtio un January 4, 1970, was the following onr, submitted by <Ill emplo:-·­.ilH•nt agt>ncy ami placed in thC' "JOBS- :VIALE INTEREST" column :

ACAD. lNSTHlJCTOHS .. . ...... . ACCOUi\'TAl\TS ............ .. . AD:Vl. ASS'T , CPA .. .. . . ADVEHTISlNCi \Hin .... BOOKKEEPER F- C' .. . . . . . .... . FINAl\ClAL CO:"JSULTANT ..... . \lAlU\.ETI.NO ;\IANACiEH . . .\W l\IT. THAI NEE . .. .. . . . .... . OFFICE :VlGH . THAlNEE . ...... . LA:\'D DEVELOil:VfENT .. PRODUCT. :\IANACEH .. .. . .. . .. . l'EHSOi\':\'EL :VIAl\ACEH ... . .... . SALES-ADVEHTISI;-.;C . . . . . .... . SALES-COi\'SU.\1 EH SALES-IN D USTRJ AL . . . . . SALES<vJACHil'\EH Y HETAlL :\JGH . . . . . . .

$13,000 10 ,000 15.000 10,000 9,000

12 ,000 15 ,000

1-1 ,~00 7,:200

:30 ,000 18.000

OPE:0.' N..!OO ~J,6()(} 12 ,000 1'.400

J 5,000 l\Iost .Pos1t ionH Frr Pmd

E.\IPLOY.\IENT SPECIALISTS :2:24H OlivPr Bldg. :.!fil- :2:250

Emplo~· ment Agc·ne:-·

App ., p. 811n . Ou the ~ame day . the tiamP agc•nt·:-··~ advPrtJHemrnt iu tlw ",JOBS­

FEMALE INTEHEST" column was a1:1 followt> :

ACAD. IXSTR UC'TOHS ACCOP:\TA:\'TS . . . . AUTO-IXS. U:\f DEHWHlTEH . ... . BOOKKEEPEH -1:\S ..... . <'LEHK-TYPlST . ........ . ...... . DHAFTSMAN . . . ...... .. ........ . KEYPUNCH D. T ... . .. . ..... . I<EYPU:\CH 13EUIN N EH PIWOFH EADEH . . l~ECEPTIO l\' lST-· :\liitltn· I l . T .. , EXEC . SEC . :::l.ECBETAHY . 8ECHETAHY . Equal Oppor . SECHETAH Y D. T . TEACHEH8-Pt . Tmw ... TYPlST-Staii~tH·al . .

::iil:3,000 !i.OOO

OPEl'\" .5 .000 4,:200 (i,OOO !l,7:20 4,500 -+.900

OPEl'\ (j ,;)()()

4.1'00 (i ,000 5.400

da ,. :):) 5.oou

\Io~t Po~ ti'JOII ~ Fr t> l'a1d E\lPLOY:\IE~T SPECIALISTS

:2:2~S Obwr Bid!!: :Z!il - :2250 Employmt·llt Agl'IH'\

App , p :HI :t. Ui

i2- Jl9-0PIXIO.

16 PLTTSBPRGH PHESS CO. 1'. lJ trMA\" H EL. CO:\nf'~

Chn ractrn~t 1r of I ho:-w ofi'rrin~ fullrr job !ll'~cnpt 1011~ wa~ (]w

followiiig adv<•rtJ:<<'ID<'Ill . carnrd in thP •·.JOR~-.\IALE I~TEREST"

column :

8TAFF .\!At\AGE:\JE:'\T TLV\1.\"EE TO ::i\1:2.000

H you ha v<· bnd bnck~round Ill t lw mn1l:tl!:<'­m('llt of ;;mall bu"lll<'~~ tlwn th1~ could hr thl' "t<•ppmg; "to1H' ) "0\1 havP lwrn wHiting; fo1 You will b<· Your own ho:<:< with no !':i:<h ontln1 . ( 'all or writ.<' toda_,. .

<\ pp p d l :{a,

2~d DRAFT

SUPREME COURT OF THE UNITED STATES

o. 72-419

Pittsburgh Press Company, Petitioner, On Writ of Certiorari to

v. the Commomvealth The Pittsburgh Commission C'ourt of Pennsylvania.

on Human Relations et al.

[June - , 1973]

MR. JuSTICE PowELL cleliver('d the op1mon of the Court.

The Human Relations Ordinance of the City of Pitt::,­burgh (the "Ordinance") has been construed below by the courts of Pennsylvania as forbidding newspapers to carry "help-wanted" advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the· basis of sex. We are called upon to decide whether the Ordinance as so construed violates the freedoms of spe('ch and of the press guaranteed by the Fir t and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the contrxt in which it arsis('S is critical to its resolution.

I The Ordinance proscribes cliscnminatwn in employ­

ment on the basis of race, color, religion, ancestry, na­tional origin, place of birth, or sex. 1 In relevant part,

~The full text of thr Ordinance and the 1969 amrndment adding sex to the list of pro~rribrd cla~sifiration~ ll:l reproduced m t h<' Appendix. App., pp. 410a-43Ga.

72-419-0PINION

2 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

§ 8 of the Ordinance declares it to be unlawful employ­ment practice, "except where based upon a bona fide occupational exemption certified by the Commission" :

" (a) For any employer to refuse to hire any per­son or otherwise discriminate against any person with respect to hiring . . . because of . . . sex.

"(e) For any 'employer, ' employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or ad vcr­tisement relating to 'employment' or membersl11p which indicates any discrimination because of . sex.

"(.i) For any person, whether or not an employer, employment agency or labor organization, to aid .. . in the doing of any act declared to be unlawful by this ordinance .. .. "

The present proceedings were initmted on October 9, 1969, when the National Organization for Women, lne. (NOW) filed a complaint 'vith the Pittsburgh Conums­sion on Human Relations (the "Commisswn '),which is charged with implementing the Ordinance. The com­plaint alleged that the Pittsburgh Press Co. ("Pittsburgh Press") was violating ~ 8 ( j) of the Ordinance by "allow­ing employers to place advertisements in the male or female columns, \vhen the jobs advertised obviously do not have bona fide occupational qualifications or excep­tions . . . . '' Finding probable cause to bell eve that Pittsburgh Press was violating the Ordinance, the Com­mission held a hearing, at which it received evidence and heard argument from the parties and from other in­terested organizations. Among the exhibits introduced at the hearing were clippings from the help-wanted ad­vertisements carried in the January 4, 1970, edition ot

72-419-0PINION

PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N S

the Sunday Pittsburgh Press, arranged by column.2 In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency car­rying the listing, while others included somewhat more extensive job ~escriptions. 3

On October 23, 1970, the Commission issued a Decision and Order.' It found that during 1969 Pittsburgh Press carried a total of 248,000 help-wanted advertisements; that its practice before October, 1969, was to use columns captioned "Male Help Wanted," "Female Help Wanted,'' and "Male-Female Help Wanted"; that it thereafter used the captions "Jobs-Male Interest," "Jobs-Female Interest," and "Male-Female''; and that the advertise­ments were placed in the respective columns according to the advertiser's wishes, either volunteered by the ad­vertiser or offered in response to inquiry by Pittsburgh Press. 5 The Commission first concluded that ~ 8 (e) of the Ordinance forbade employers, employment agencies , and labor organizations from submitting advertisements for placement in sex-designated columns. It then held that Pittsburgh Press. in violation of ~ 8 (j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering anrl reJecting the

2 These exhibit::; are reproduced in the Appendix. App. , pp. 299a-333a.

3 For example~ of the::;e want-ad::;, ::;e!' the Appcnd1x to t h1::; opinion, pp. 15-16.

4 The full text of tlw Commi~::;wn'~ DecJ~JOn and Order is set forth in the Appendix to the Petitwn for Certioran Pet App., pp. la-18a.

~ The Commis ·ion specifically found that . "5. The Pittsburgh Pre:ss permit~ the advcrti~cr to select the

column within wh1ch ito; advertisf'ment is to be inserted . 1 '6. When an advertiser doc~ not ind1cate a column, the Press

a ·ks the advcrti~cr whether It want~ a male or female for the Job and then mserts the advertJ~ement m tlw JObs-male intrre;;t or Jobs-female intere:st column accordingly." Prt. App., p. lfia ,

72-419-0PINION

4 PITTSBURGH PRESS CO. v. HUMAN TIEL. COMM'N

argument that the Ordinance violated the First Amend­ment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed in all relevant respects by the Court of Common Pleas.'1

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 m that court's opimon. the Ordinance docs not apply to employers of f<'wcr than five persons, to employers outside the city of Pittsburgh. or to religious, fraternal, charitable or sectanan orp:aniza­tions, nor does It apply to employment in domestw ~erv1ce or in jobs for which the Commissin has certified a bona fide occupational exception. The modified order bars "all reference to sex in employment advertismg colum11 headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission.' ' 4 Pa. Commw .. 448, 470. 287 A. 2d 161. 172 ( 1972) . The Pennsylvania Supreme Court dellied review. and we granted certiorari to decide whether, as Pittsburgh Press contends, the modified order viOlates the First Amend­ment by restricting its eclitonal judgment. 40n (' ::-, 1036 (1972).7 We affirm.

0 See Pet. App., p. 19a. 7 PittHbmgb Pn·~~ abo nrgm·~ that th(' Ordmnnrr Yio!ntPf. dul'

proreH:< in that thrrr 1::: no rat10nnl ronneetwn brtwrrn ~ex-ciP:<tgnatPd column headings and Sl'X di~rriminntion in emplo~·mC'nt. It draw~ attention to a disclaimer whtch tt run~ at the beginmn11: of each of the ".Job"-:\1nle Intrr~t " nnd "Joh~-Frma]p 1ntere:it" columns · "NoticC' to Job SC'ekC'r::: '

"Jobs nrc arranged under :\IaiP nnd Frma[(' rla~:::!11rntions for thC' convenimcc of our reader~. Thi~ i::; clone brrnu~e most job~ grn­erally npprnl more to per:<on:< of on(' :<c•x than thr othrr Variou;. law" and ordinanrP~-loral. ~tat<· and fpdrral, prohih1t di:;enmtnation

72-419-0PH\ION

PITTSBURGH PRESS CO. v. HU:\1AN REL. COl\IM'N 5

II

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 1t, "In the First Amendment the Founding Fathers gavC' tl10 frC'c press the protection it must have to fulfill its essential rol<• in our democracy." New York Times v. ['nited Slates, 403 U. S. 713, 717 (1971) (concurring opinwn). The dura·· bility of our system of self-government hingC's upon thl i)reservation of these freedoms.

"[S]ince informed public opimon is tlw most pot<'tlt of all restraints upon nusgovernllll'nt , tlw suppr!·t;·

1011 or abridgement of the publicity afforded by _a. free press cannot be regarded otherwise than w1th grave concern . . A free press stands as om' of the great interpreters between the govemment and the people. To allow l.t to be fettered is to fettPr ourselves." GrOSJean v. American Press ro., 297 U. S. 233, 250 (1936) .

The repeated emphasis accorded this them<:' in the de' cisions of this Court serves to underlmP the IJarrowit PS~ of the recognized exceptions to the pnuciple that the press

in rmplormrnt i>t•t·nu~t· ol ~rx unll·~~ "<'X i~ 11 bon;t fid<• oerupnuonal rrquirrmrnt . lJn](·"~ IIH' advrrt i"rrnrnt it~f'lf ~prC'ifir" one :>rx or !hr otlwr. JOb "rrkrr;: ;:hould a~~umr that thr ach·rrti:>er will con oiclrr npplif'Hlll~ of rithrr ~rx in rompli:tiH'<' with thf' law~ aga1n~t di:::;crimination .''

It sufficr" to cli~po:-;r of thi~ contention that the Commt~"ion 'l:' com­non-srm;r recognition that thr two arr connrrtrd i:-; ~upportrd by evidence in thr prP~<·nt !Word. Srr App. , p]l. 2:35a-2:39a. Srr al~o IIailes v. United Air Line~ . -!G.f F . 2d 1000, 1009 (CA5 1972) The Guidelines on Di~(·riminat ion B('Cau~r of Srx of I he .Frdcral Equal Employmrnt Opportunity Commi,~ton rdlret ;t "1milar ('Onr!u~iotJ . Sec 29 n·H § 150-!,4.

72-419-0PINION

6 PITTSBURGH PRESS CO. v. HUMAN TIEL. COMM'N

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 evolvrd from an assortment of small printers into a diverse aggregation including large pub­lishing empires as \veil. the parallel growth and com­plexity of the economy have led to extenstve regulatory legislation from which " [ t] he publisher of a newspaper has no special immunity." Associated Press v. Y 0RB, 301 U. S. 103, 132 ( 1937). Accordingly, this Court ha~ upheld application to the press of the r\ational Labor• Relations Act, id., the Fair Labor Standards Act, Mabe(:, v. White Plains Publishmg Co., 327 U.S. 178 (1946); Oklahoma Press Publishing Co. v. Walling, 327 U. :::l. 186 ( 1946), and the Sherman Antitrust Act. Associated Press v. United States, 326 U. S. 1 (1})45); Citizen Pubhshi1tg Co. v. United States, 394 U. S. 131 (Hl6!:J) . See also Branzburg v. Hayes, 408 U. S. 665 (197:2). Yet the Court has recognized on several occaswns the special institutional needs of a vigorous press by striking Jowu laws taxing the advertising revenue of newspapers with circulations in excess of 20,000, Gros}eau v. A merica11 Press Co., supra, requiring a license for the distribution of printed matter, Lovell v. Griffin, 303 U. ~- 444 ( 1938) , and prohibiting the door-to-door distribution of leaflets Martin v. Struthers, 319 U.S. 141 ( 1943)."

But uo suggestion is made in this case that the Pitts­burgh Ordinance was passed with any purpose of muz­zling or curbing the press. Nor does Pittsburgh Press

R See also Jones \'. Owlika. 319 r s l();~ ( 1 94:l) 111 urdock \ ' Pennsylvanw, 319 0 . S 105 (194:l),

72-419-0PINION

PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N 1

argue that the Ordinance threatens its financial viability 0

or impairs in any significant way its ability to publish and distribute its newspaper. In any event, such a con­tention would not be supported by the record .

III

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 sex-designated columns and allowing advertisers to select the columns in which their help-wanted advertisements will be placed. In addition, the order does not allow Pittsburgh Press to substitute a policy under which it would make an independent decision regarding placement in sex-designated columns.

Respondents rely principally on the argument that thi regulation is permissible because the speech IS commer~

cial speech unprotected by thr First Amendment. ThP commercial speech doctrine is traceable to the bnef 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:

"We are .. . clear that the Constitution imposes no such restraint . . on government as respects purely commercial advertising.' 31() C. :::l .• at 54.

0 In re~ponHe to qnc;:;tioning at oral argument , roun~el for Pitts­burgh Pres:-; ~ tated only :

"Now, I 'm not prepared to answer wlwther thr company make;; money on l wnnt-ads] or not. I ~U~Jwrt it docs. They charge for want-ads, and they do make a lot of thrir rrYrnur in the news­paprr through adverti:;ing, of com;:;!' ; and I ~usprrt it ~~ profitahl<'. Tr. of Oral Arg., p . 10.

72-419-0PINION

8 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

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 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 ·

"That the Times was paid for publishing this ad­vertisement is as immaterial in this connection a&

is the fact that newspapers and books are sold .'' 376 U. S., at 266.

See also Smith v. California, 361 U.S. 147 ( 1959); Ginz­burg v. United States, 383 U. S. 463, 474 ( 1966). If a qewspaper's profit motive were determinative, all aspects of its operations-from the selection of news stones to the choice of editorial position-would be subject to rpg­ulation if it could be established that they were COIJ ­

ducted with a view toward increased sales. ~uch a basts 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 110

more than propose a commercial transaction, the sale of admission to a submarine. In .\' ew York Tunes v. Sul­livan, MR. JusTICE BRENNAN for the Court found tile C hrestensen advertisement easily distinguishable :

"The publication here was not a 'commercial advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sou!£ht financial support on be~

72-419-0PINION

PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N 9

half of a movement whose existence and objectives are matters of the highest public interest and con­cern." 376 U. S., at 266.

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 docs 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.

But Pittsburgh Press contends that Chrrstense11 is uot applicable, as the focus in this case must br upon the exercise of editorial judgment by the newspaper a~::. to where to place the advertisement rather than upoll 1ts commerical content. The Commission made a findmg of fact that Pittsburgh Press defers in every case to the advertiser's wishes regarding the column in which a want-ad should be placed. It is nonetheless true, how­ever, that the newspaper does make a judgment wheth<'r or not to allow the advertiser to select the column. We must therefore consider whether tins degree of judg­mental discretion by the newspaper with respect to a purely commercial advertisement is distinguishable, for the purposes of First Amendment analysis, from the con­tent of the advertisement itself. Or, to put the question differently, is the conduct of the newspaper with respect to the employment want-ad entitled to a protection under the First Amendment which the Court held in Chrestensen was not available to a commercial advertiser ?

Under some circumstances, at least, a newspaper 's edi­torial judgments in connection with an aclvPrtisement take on the character of the advertisement and, in those qases, the scope of the newspaper 's First Amendment pro-

72-419-0l'INION

10 PITTSBURGH PRESS CO. v. HUMAN REL. COl\IM'N

tection 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. l\T ew York Times v. Sullivan, supra, 376 U. S., at 270-280. 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.

Similarly, a commercial advertisement remains com­mercial in the hands of the media, at least u ncler some circumstances.10 In Capital Broadcasting Co . v . Acttng Attorney General, 405 U. S. 1000 ( 1D72). aff'g 333 F. Supp. 582 (DDC 1971), this Court summarily affirmed a district court decision sustaining the constitutionality of 15 U. S. C. § 1335, which prohibits the electronic media from carrying cigarette advertisements. The District Court there found that the advertising should be treated as commercial speech. even though the First Amend­ment challenge was mounted by radio broadcasters ratlwr than by advertisers. Because of the pecuhar character­istics of the electronic media, XaUonal Broadcasting Co. \'. United States, 319 G. S. 100. 226- 227 ( 1D4:3), Capital Broadcasting is not dispositive here on the ultimate question of the constitutionality of the Ordiuance. Its significance lies, rather, in its recognition that the exer-

10 In Ileac! v. Neu· llfexito Board, .'374 U. S. 424 (196:3). thi~

Court uphrld an injunction prohibiting a nrw:<p;qwr and a racho tihlt ion from carrying optomrtri;;t~' ndH'rt i~rmrnt~ wlmh violatrd ~ew Mrxiro law. But brrau>;r thr J;;.~uc had not brrn rai ~rd m the !owN romts, thi:s Court did not ron~idcr tlw par!Jr,.:' Fir;;t Amrnclmrnt chnllrng<'. :374 U. S., at 43:2 n, J:{

.. \. ,

72-!19-0PINION

PITTSBURGH PRESS CO. v. HUMAN TIEL. COMM'N 11

cise of this kind of editorial judgment does not necessarily strip commercial advertising of its commercial character. 11

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 sex­designated column or the actual placement there lifts the newspaper's actions from the category of commercial speech. By implication at least, an advertiser \vhose want-ad appears in the "Jobs-Male Interest' ' column is likely to discriminate against women in his hiring de­CISIOns. Nothing in a sex-designated column heading sufficiently dissociates the designation from the want­ads placed beneath it to make the placement srvcrabk for First Amendment purposes from the want-ads them­selves. The combination, which conveys essentially tlw same message as an overtly discriminatory want-ad, is 111

practical effect an integrated commencal statement. 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 lllformatwn is a1> important in the commercial realm as in any other, the newspaper here would have us abrogate the distmctwn between commercial and other speech.

Whatever the merits of this conteutwn may be in othm contexts, it is unpersuasive in this case. Discriminatiou

11 See abo New Vork State Broadcaster~ As.wnation \. C mted States. 414 F. 2cl 990 (CA2 19Ci9) , rert. drt11rcl , :l9fi ll. S. JOfil (1970) (rcfu~ing to :;trike down a ban on broaden:;!~ promoti11g a lottery) .

12 Sre Xotr, Frrrdom of Exprr~l:'ion in a Commercial Context, 78 Harv. L. Rrv. 1191 , 1195-1196 (19Ci5). Cf. C'apital Broadcastmg Co. \' . Acting Attorney Grnpra/, suwa. :333 F . Supp., nl 593 n . 42 (Wright. J .. di~~rnling); ramp-of-the-Pines Inc . v New York TimPs Co., 184 :\li:<r. a89, 5,'3 I'\ . Y S 2d 475 (Hl45).

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lZ PITTSBURGH PRESS CO. v. HUl\IAN REL. CO:\IM'N

in employment is not only commercial activity, it is illegal commercial activity under the Ordinance. We have no doubt that a newspaper constitutionally could be forbidden to publish a want-ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indi­cated by placement under columns captioned "Narcotics for Sale" and "Prostitutes Wanted" rather than stated within the four corners of the advertisement.

The illegality in this case may be less overt, but "ve see no difference in principle here. Sex discrimination in nonexempt employment has been declared illegal UIJder § 8 (a) of the Ordinance, a provision not challenged here . And § 8 (e) of the Ordinance forbids any employt>r , employment agency, or labor union to publish or cause to be published any advertisement "indicating" sex dis­crimination. This, too, is unchallenged. Moreover, the Commission specifically concluded that it is an unlawful employment practice for an advertiser to cause an em­ployment advertisement to be published in a sex­designated column.

Section 8 (.J) of the Ordinance, the only prov1sioll which Pittsburgh Press was found to have vwlatect and the only provision under attack here, makes it unlawful for "any person ... to aid ... in the doing of any act declared to be unlawful 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

PITTSBURGH l)RESS CO. v. HUMAN REL. COMJ\J'N 13

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.

IV 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.' 8

As described by Blackstone, the protection against prior restraint at common law barred only a system of admin~ istrative censorship:

"To subject the press to the restrictive power of a licenser , as was formerly done, both before and since the revolution, is to subject all freedom of sentt · ment to the prejudices of one man, and make h11n the arbitrary and infallible judge of all controverted points in learning, religion, and government." 4 Bl. Comm. 152.

While the Court boldly stepped beyond this narrow doctrine in Near v. Minnesota, 283 U. S. 697 (1931), iu 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. rr nited States, 342 r. S. 143 (1951). ThE' special vice of a prior restraint is that communication will be suppressed, either directly or by inducing exces~ sive 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 con tinu­ing course of repetitive conduct, this is not a case m

13 Brief for Amicus Curiae The Americ·nn New8paper Pubii~hrr;,

Association, p. 22 n . 32.

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14 PITTSBURGH PRESS CO. v. HUMAN REL. C01IM'N

which the Court is asked to speculate as to the effect of publication. Cf. New York Times v. United States , supra. Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relic?f was granted, the order \Vill not have gone into effect until it was finally determined that the actions of Pitts­burgh Press were unprotected.

v We emphasize that nothing in our holding allows gov­

ernment at any level to forbid Pittsburgh Press to pubbsh and distribute advertisements commenting on the Ordi­nance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. ~or,

a fortiori, does our decision authorize any restriction whatever, whether of content or layout. on stones or } commentary originated by Pittsburgh Press. its eolum­nists, 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. docs not infringe the First Amendment rights of Pittsburgh Press.

Affirmed.

APPENDIX

Among thr advrrli~rmrnt::; carried in the Sunda~· Pitt ~burgh Prr::;::; on .January 4, 1970, wn~ thr following one, submittrd by an employ" ment agency and Jllacccl in thr ·'JOBS-MALE INTEREST" column;

-----ACAD. I~STRUCTORS . . .. ... ..... SI:3,000 ACCOC\'TAXTS . . . . .. . . . . . . . . . .. 10.000 AD:\J. ASS'T, CPA.. .... . .. . . . ... . 15,000 ADVERTISil\'C'r :\ICm. .. . .. . .. . . . . 10,000 BOOKKEEPER F -C. . . . . . . . . . . . . . . 9.000 FE\A:\CIAL CO~StTLTAXT ... . .. . 1~.000 :'IIARKETIXC: :\IAXAC'rER ... . . . .. 15,000 :\IG:\fT. TRAINEE.. . . .... . .. .. . . S.400 OFFICE :\fGR. THAIXEE.... . .. . . 7,:200 LAXD DEVELOP:\IE\'T . . . . . . . . . . :30,000 PRODFCT. :\IAXAC:ER . .... .. ... . l.S.OOO PERSO;'\\'EL ?lfAXAGER . .. . . ... OPEX SALES-ADVERTISIXG . . . . . . . . . . . 8.400 SALES-COXSP:\fER . . . . . . . . . . . . . . 9,GOO SALES-I:\DllSTHIAL . . . . . . . . . . 1:2,000 SALES-:\IACHIXEHY . . . . . . . . ,-,,.+00 RETAIL :\IC:.H . . . . . . . . L5.000

App. , p. 311a.

l\Io~t .Po~ition~ Frr l';ml E:\1PLOY:\IEXT SPECIALISTS

22-1:8 Oliver Bldg. 261-22.50 Employment Agency

On the same day , the ~amc agcnc~··~ advertisem<'nt in the ".JOBs­FEMALE INTEHEST" column was a~ follows:

---ACAD. I~STRUCTORS . . . . . 813,000 ACCOLTXTANTS . . . . . . . . . 5,000 AFTO-IXS. CXDEHWIUTER . . OPE:\ BOOKKEEPEH -I~S . . . . . . . . . . . . ,),000 CLERK-TYPIST . . . . . . . . . . . . . . . . . -J- ,200 DRAFTS:\IAX . . . .. .. .. . . .. . . .. .. . 6,000 KEYI'Pl\CII D. T . . . . fi,720 KEYI ' PXCH BECTXXElL . . . . . . . 4,500 J'ROOFHEADEH . . . . . . . 4.900 REC EPTIOXTST- :\laturc D. T OPEN EXEC. SEC . .. .. . .. .. . .. . .. .. 5.300 SECHETARY . .. .. .. .. .. .. .. .. 4,HOO SECRETARY. Equal Oppor . . . . . . 5,000 SECH ETARY D. T . . . . . . . . . . . . . . . . 5,400 TEACHERS-Pt . Time . . . . . . dn~· :33 TYPIST-Stati~t1cal . . . . 5,000

App ., p . 31la.

l\Io~t Po~itwn~ Fcc Pmd E:\IPLOY:\IENT SPECIALISTS ~2-lR Olivrr Bldg. 251-2250

Emplo~·ment Agrnc~

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Characteristic of those offering fuller job descriptions was the following advertisement, carried in the "JOBS-MALE INTEREST"

' column:

STAFF MANAGEMENT TRAINEE TO $12,000

If you have had background in the manage­ment of small business then this could be the stepping stone you have been waiting for. You will be your own bm;~ with no cash outlay Call or write today.

App., p. 313a.

.f. I 'i To: The Chief Jus tice Mr . Justice Douglas Mr . Justice Bronn'ln Mr . Justice Stewart Mr . Justice White

ind DRAFT.

Mr. Jllstico r,:a1·shall Mr . Justice Blac.~mun Mr . Justice Rchnquis t

SUPREME COURT OF THE UNITED ~!TE~owcn , J ·

CirculatGl: ------No. 72-419

~rcirc·.:l'J.ted : _.,......._....·· 2 19~-Pittsburgh Press Company,

Petitioner, v.

The Pittsburgh Commission on Human Relations et al.

On Writ of Certiorari to the Commonwealth Court of Pennsylvania.

[June - . 1973]

MR. JusTICE PowELL delivered the opmwn of the Court.

The Human Relations Ordinance of the City of Pitts­burgh (the "Ordinance") has been construed below by the courts of Pennsylvania as forbidding newspapers to carry "help-wanted" advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral dec1sion s on the basis of sex. We are called upon to decide whether the Ordinance as so construed violates the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments. This issue is a sensitive one, and a full understanding of the context in which it arsises is critical to its resolution.

I

The Ordinance proscribes discnminatwn m employ­ment on the basis of race, color , religion, ancestry, na­tional origin, place of birth, or sex. 1 In relevant part,

1 The full text of the Ordinance and the 1969 amendment addmg sex to the list of proscrib('d claHsification~ Js reproduced m thr Appendix. App., pp. 410a- 436a.

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2 PITTSBURGH .PRESS CO. v. HUMAN REL. COMM'N

§ 8 of the Ordinance declares it to be unlawful employ­ment practice, "except where based upon a. bona fide occupational exemption certified by the Commission" :

" (a) For any employer to refuse to hire any per­son or otherwise discriminate against any person with respect to hiring . . . because of . . . sex.

"(e) For any (employer, ' employment agency or labor organization to publish or circulate, or to cause to be published or circulated, any notice or adv<.'r­tisement relating to (employment' or membership which indicates any discrimination because of . sex.

" ( .i) For any person, whether or not an employer, employment agency or labor organization, to aid .. . in the doing of any act declared to be unlawful by this ordinance .. .. "

The present proceedings were initmted on October 9, 1969, when the National Organization for Women , lll e. (NOW) filed a complaint \vith the Pittsburgh CommiR­sion on Human Relations (the "CommissiOn ') , which is charged with implementing the Ordinance. The com­plaint alleged that the Pittsburgh Press Co. ("Pittsburgh Press") was violating ~ 8 ( j) of the Ordinance by "allow­ing employers to place advertisements in the male or female columns, when the jobs advertised obviously do not have bona fide occupational qualifications or excep­tions . . .. '' Finding probable cause to believe that Pittsburgh Press was violating the Ordinance, the Com­mission held a hearing, at which it received evidence and heard argument from the parties and from other in­terested organizations. Among the exhibits introduced at the hearing were clippings from the help-wanted ad­vertisements carried in the January 4, 1970, edition o{

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PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N g

the Sunday Pittsburgh Press, arranged by column.2 In many cases, the advertisements consisted simply of the job title, the salary, and the employment agency car~

rying the listing, while others included somewhat more extensive job ~escriptions.3

On October 23, 1970, the Commission issueCI a Decision and Order.' It found that during 1969 Pittsburgh Press carried a total of 248,000 help-wanted advertisements; that its practice before October, 1969, was to use columns captioned "Male Help Wanted," "Female Help \Vanted," and "Male-Female Help Wanted"; that it thereafter used the captions "Jobs-Male Interest," "Jobs-Female Interest," and "Male-Female''; and that the advertise­ments were placed in the respective columns according to the advertiser's w1shes, either volunteered by the ad­vertiser or offered in response to inquiry by Pittsburgh Press. 5 The Commission first concluded that ~ 8 (e) of the Ordinance forbade employers, employment agencies, and labor organizations from submitting advertisements for placement in sex-designated columns. It then held that Pittsburgh Press. in violation of ~ 8 (j), aided the advertisers by maintaining a sex-designated classification system. After specifically considering and reJecting the

2 These exhibits are reproduced in the Appendix. App., pp. 299a-333a.

3 For exampl(•s of thc::;e want-ad::;, ::;rr thr Appendix to tht::; opinion, Pl1. 15-16.

4 The full text of tlw Commi::;~ion'H Dectswn and Order is set forth in the Appendix to tho Petitwn for Certioran P<>t App .. pp. 1a-18a. ~The Commission specifically found that . "5. The Pittsburgh Prrss permits the aclvrrtiHrr to select the

column within wll!Ch it;; advertisrmcnt is to be insrrted. ?'6. When an advertiser does not indwttc a column, the Press

asks the advrrti::;rr whcthrr 1t want::; a malc or frmale for the JOb and then mscrt;; thr advrrtt~ement m thr JObs-male intrrr::;t or Job::;-female interest column accordingly." Prt. App., p. Hla,

..

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4 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

argument that the Ordinance violated the First Amend­ment, the Commission ordered Pittsburgh Press to cease and desist such violations and to utilize a classification system with no reference to sex. This order was affirmed ii1 all relevant respects by the Court of Common Pleas."

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 frwer than five persons. to employers outside the city of Pittsburgh, or to religious, fraternal, charitable or sectarian organiza­tions, nor does 1t apply to employment in domestiC !'rrvice or in jobs for whiCh the Commissin has certified a bona fide occupational exception. The modified order bars "all reference to sex in employment advertising colunlll headings, except as may be exempt under said Ordinance, or as may be certified as exempt by said Commission.'' 4 Pa. Commw., 448, 470, 287 A. 2d 161. 172 ( 1072) . The Pennsylvania Supreme Court denied review, and '"e granted certiorari to decide whether, as Pittsburgh Press contends, the modified order violates the First Amend­ment by restricting its editonal judgment. 409 C ~

1036 (1972).7 We affirm .

0 Sec Pet. App., p . 19a. 7 Pitt~burgh Pn·~~ al~o argue·~ that lhC' Ordmnnrr ,·iolatl'~ <lur

prorc~:; in t hnt t herr I:> no rn t 10n:tl connectiOn bet wrrn ~rx-dl'~tgnat l'd column headings and sex di~rrimi11ation in rmplo~·mc•nt. It draw~

attrntion to a diHclaimrr wlnrh It run:-; at tlw lwgmnmg of each of thr ".Job:;-:\1nlr Intrre,;t" and "Job~-Frma]p lnterr~t " column~

''Noticr to Job Scckc•r,;"

"Job::: nre arranged undrr :\!ale and FrmalP cln~~If1ratiOn8 for thr convenience of our reader~. Thi~ i::: done brcau:;r mo:::t job~ grn­rrally appeal more to pPr:::on~ of otw ,;px than thr other . Vanoti~

law;; and ordinancr:;-loral. ;;tntc• and frdernl , prohibit di~enmmation

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PITTSBURGH PRESS CO. v. HUMAN REL. C'Ol\ll\l'N 5

II

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 rok in our democracy." l\'ew York 1'imes v. ['nited SLates, 403 U.S. 713, 717 (1971) (concurring opinion). ·The dura·· bility of our system of self-government hinges upon tlw preservation of these freedoms.

"[S]ince informed public opinwn is tlw most potent of all restraints upon nusgovernnwn t , tlw su pprP1' swn or abridgement of the publicity afforded by .~ .

free press cannot be regarded otherwise than w1tll grave concern . . . . A free press stands as om; of the great interpreters between the government and the people. To allow 1t to be fettered is to fetter ourselves.'' GrosJean v. American Press Co ., 297 u. s. 233, 250 (1936) .

The repeated emphasis accorded this tlwme in the ' fe:

cisions of this Court serves to unc!PrhiH' thr llUfl'OWII PS:-­

of the recognized exceptions to the pnnciple that the press

iu rmplo~·nH•nt h<·c:lii~< · ol ~<· :-. unlr~~ ~C':-. ~~ <1 houa fid<· O<'rupauonal rrquirrmrni . l l nl<·~~ thr adnrll~rmrnl ii~Pif' ~Jl<'<'Ifir~ onr ~rx or lhr otlwr. JOb ~Prker:< ~hould a><~umr that thr ach·erti~er will eon ~idrr applicant~ of ritll<'r ::;r.\ in rompli:lllcr with tlw lnll':< again::;! di~<·rimination ."

It ~ufficr,; to di~po~e of thi" contention that the Comm1::;~ion '~ com non-~rn~r recognition that thr two arr connected i~ ~upportrd by evidence in thr prP~ent n•corcl. Ser App. , pp. 286a-2B9n. Ser also lfailes v. United Air Line11. -!64 F. 2d 1006, 1009 (CA5 1972) The Guidelinrs on Di~criminal ion Rt•ratlse of Sex of I he Frd<'rnl Equal Employmrnt Opport unit\' C'ommi~~1on r<'fl<'<'t :l ~nnila r conrlu~iolj . Rce 29 C'FH ~ 160-i,4.

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6 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

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 v1ability As the press has evolvrd from an assortment of 8mall printers into a diverse aggregation including large' pub­lishing empires as ,.,·ell. the parallel gro·wth 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. :YLRB, 301 U. S. 103, 132 (1937) . Accordingly , th1 Court har:­upheld applicatJOn to the press of the ~a tiona] Labor' Relations Act. id., the Fair Labor Standards Act, M abe( v. White Plains Publislnng Co., 327 C'. S. 178 (1945), Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 ( 1946), and the Sherman Antitrust Act, Associated Press v. United States, 326 U. S. 1 (1945); Citizen Publlshiny Co. v. United States, 394 U. S. 131 ( Hl6U). See also Branzburg v. Hayes, 408 U. S. 665 ( 1\:)72). Yet the Court has recognized on several occaswns the special institutional needs of a vigorous press by striki11g Jowu laws taxing the advertising revenue of newspapers with circulations in excess of 20,000, Gros]ea11 v. American Press Co., supra, requiring a license for the distribution of printed matter, Lovell v. Griffin, 303 U. S. 444 ( 1938) , and prohibiting the door-to-door distribution of leaflets Martin v. Struthers, 319 U. S. 141 (1943) ."

But no suggestion is made in this case that the Pitts­burgh Ordinance was passed with any purpose of muz­zling or curbing the press. Nor does Pittsburgh Press

R See also Jones \' . Opelika. 319 r S. I ();3 ( 194;3) M urctock I '

Pennsylvama, 319 0 . S 105 (194~).

7~-419-0PIN'ION

PITTSBURGH PRESS CO. v. HUl\IAN REL. COMM'N 1

argue that the Ordinance threatens its financial viability 0

or impairs in any significant way its ability to publish and distribute its newspaper. In any event. such a con­tention would not be supported by the record .

III

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 providlllg sex-designated columns and allowing advertisers to sclC'ct the columns in which their help-wanted advC'rtisements will be placed. In addition, the order does not allow Pittsburgh Press to substitute a policy under which It would make an independent decision regarding placenwnt in sex-designated columns.

Respondents rely principally on the argument that this regulation is permissible because the speech IS commer· cial speech unprotected by the First Amendment. The commercial speech doctrine is traceable to the bnef opin ­ion in Valentine v. C hrestensen, 316 G. S. 5~ ( HJ42) . 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:

"We are . . . clC'ar that the Constitution imposes no such restraint . .. on goverumcnt as respects purely commercial advertislllg. ' 316 U. :::l., at 54.

0 In respon~r to qtH':>tioning nt ornl argument, coun,cl for Pitt::>­burgh PrrsH "tatrd only :

"Now, I'm not prepared to answer whrther the company mnke::. monr~· on l want-ad::;] or not. I ~u~prct it clor::;. Thr~· charge for want-nels , and thrr do makr a lot of thrir rt'\'Cl1LH' in the new::;­paprr through advcrti:;ing, of COll!'t;;('; and f " ll~]l<'('t it I~ profit a h)('. Tr. of Oral Arg., p. 10.

..

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8 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

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 v. Sullivan, 376 U. S. 254 (1964), a city official of Mont­gomery, Alabama, brought a libel action against four olergymen 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 :

"That the Times was paid for publishing this ad­vertisement is as immaterial in this connection as is the fact that newspapers and books are sold ." 376 U. S., at 266.

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 stones to the choice of editorial position-\vould be subject to reg­ulation if it could be established that they were coit­ducted with a view toward increased sales. ~uch a basts for regulation clearly would be incompatible with the First Amendment.

The critical feature of the advertisement in T1 ale1dine v. Chrestensen was that. in the Court's view, tt did uo more than propose a commercial transaction, the sale of admission to a submarine. In ,\ ew York Tunes v. Sul­livan, MR. JusTICE BRENNAN for the Court found the C hrestensen advertisement easily chstingmshablt> .

"The publication here wa not a 'commercial advertisement in the sense .in which the word was used in Chrestensen. It communicated mformatw11 , expressed opinion, recited grievances, protested claimed abuses, and sought financial support on be ....

72-419-0PINION

PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N 9

half of a movement whose existence and objectives are matters of the highest public interest and con­cern." 376 U. S., at 266.

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 advertisemeuts are thus classic examples of commercial speech.

But Pittsburgh Press contends that Cllrestensen Is 11ot

applicable, as the focus in this case must be upon thE' exercise of editorial judgment by the newspaper as to where to place the advertisement rather than upon Its commerical content. The Commission made a finding of fact that Pittsburgh Press defers in every case to the advertiser's wishes regarding the columu in which a want-ad should be placed. It is nonetheless true, how­ever, that the newspaper does make a judgment whether or not to allow the advertiser to select the columll . \\ e must therefore consider whether llus degree of .i udg­mental discretion by the nevvspaper with respect to a purely commercial advertisement is distinguishable, for the purposes of First Amendment analysis, from the con­tent of the advertisement itself. Or, to put the question differently, is the conduct of the newspaper with respect to the employment want-ad entitled to a protection under the First Amendment which the Court held in Chrestensen was not available to a commercial advertiser?

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 Qases, the scope of the newsl?aper's First Amendmeut prQ-

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10 PITTSBURGH PRESS CO. v. HUl\lAN REL. COMM'N

tection 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. /\' ew York Times v. Sullivan, supra, 376 U. S., 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.

Similarly, a commercial advertisement remains com­mercial in the hands of the media, at least under some circumstances.1

" In Capital Broadcasting Co. v. Actwg Attorney General, 405 U. S. 1000 (1\:l72), aff'g 333 F. Supp. 582 (DDC 1971), this Court summarily affirmed a district court decision sustaii1ing the constitutionality of 15 U. S. C. § 1335, which prohibits the electronic media from carrying cigarette advertisements. The District Court there found that the advertising should be treated as commercial speech. even though the First Amend­ment challenge was mou11ted by radio broadcasters ratlH't' than by advertisers. Because of the prcuhar character­istics of the electronic media. Xat?'onal Broadcasting Co. v. United States, 319 F S. 190, 226-:227 ( 1!)4:3), Capital Broadcasting is not dispositive here on the ultimate question of the constitutionality of the Ordinance. lts significance lies, rather, in its recognition that the exer-

ltl In ]lead v. Nnt• Me.'Cico Board, :374 U. S. 4:24 (196;3) , thi8 Court uphrld nn injunction prohibiting a nr\\'~PHJll'l' and a radw stat ion from ca n~·ing optomrtri~t:,:' adn' rt i~rment::; wlneh violated New Mrxiro law. But brcau~r thr Is::;ue had not brrn rai~rd m the lowPr court~, thi::; Court did not ronHidrr thr partir::;' Fir~\ Amrndment rhallrng<'. 374 U. S., at 432 11 , I:{

..

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PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N 11

cise of this kind of editorial judgment does not necessarily strip commercial advertising of its commercial character. 11

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 sex­designated 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 is likely to discriminate against women in his hiring cle­CislOns. Nothing in a sex-designated column heading sufficiently dissociates the designation from the want­ads placed beneath it to make the plact'ment severable for First Amendment purposes from tlw want-ads them­selves. The combination, which conveys E'ssentially the same message as an overtly discriminatory want-ad, is 111

practical effect an integrated commencal statement. Pittsburgh Press goes on to argue that if th1s 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 wformatwn is ab

important in the commercial realm as in any other, tlw newspaper here would have us abrogate the distwctwn between commercial and other speech.

Whatever the merits of this contentwn may be in othe1 contexts, it is unpersuasivE' in this case. Discrimination

33 See al::;o New Yor~· State Broadcasters Assonation 1 . { lllted States. 414 F. 2d 990 (CA2 1969), rcrt. drn1rd, ;3\:)(j ll. S. JO()l

(1970) (refu;;ing to i:itrike down a han on broadrn:;ti:i promoting a lottery) .

3 ~ Sec Xotr, Frerdom of Expre~~<ion in a Commrrrwl Contrxt, 78 Harv. L. Rev. 1191, 1195-1196 (1965). Cf. C'apital BroadcOJ3ting Co. v. Arting Attonze.IJ Gl'neral, supra, a:r3 F. Supp., nt 59:3 n. 42 (Wright, J.. di~~cnting); C'amp-of-the-Pines Jnr " Netn York TimPs Co ., 184 l\Ii~e. 8~9, 5;3 N . Y. S 2cl 475 (19-15) .

,,

71-419-0PINION

lZ PITTSBURGH PRESS CO. v. HUl\IAN REL. COl\fM'N

in employment is not only commercial activity, it is illegal commercial activity under the Ordinance. We have no doubt that a newspaper constitutionally could be forbidden to publish a want-ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indi­cated by placement under columns captioned "Narcotics for Sale" and "Prostitutes Wanted" rather than stated within the four corners of the advertisement.

The illegality in this case may be less overt, but we see no difference in principle here. Sex discrimination in nonexempt employmeut has been declared illegal under § 8 (a) of the Ordinance, a provision not challenged here. And ~ 8 (e) of the Ordinance forbids any employer, employment agency, or labor union to publish or cause to be published any advertisement "indicating" sex dis­crimination. This, too, is unchallenged. Moreover, the Commission specifically concluded that it is an unlawful employment practice for an advertiser to cause an em­ployment advertisement to be published in a sex­designated column.

Section 8 (.J) of the Ordinance, the only prov1sio11 which Pittsburgh Press was found to have vwlatcd and the only provision under attack here, makes It unlawful for "any person . . . to aid . . . in the doing of any act declared to be unlawful 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

PITTSBURGH l)RESS CO. v. HUMAN REL. COMM'N 13

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.

IV 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.' 8

As described by Blackstone, the protection against prior restraint at common law barred only a system of admin~ istrative censorship:

"To subject the press to the restnctive power of a licenser, as was formerly clone, both before and since the revolution, is to subject all freedom of senti­ment to the prejudices of one man, and make hun the arbitrary and infallible judge of all controverted points in learning, religion, and government." 4 Bl. Comm. 152.

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 newr held that all injunctions are impermissible. See Lorain Journal Co. v. [rnited States, 342 T.J. S. 143 ( 1951). The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing exces~ sive 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 casf' m

13 Brief for Amicus Curiae The American ~ew:::pap<'r Pub!J::;h<'r~

Association, p. :22 n. 32.

72-419-0PINION

14 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

which the Court is asked to speculate as to the effect of publication. Cf. New York Times v. United States, supra. Moreover, the order is clear and sweeps no more broadly than necessary. And because no interim relief was granted, the order "vill not have gone into effect until it was finally determined that the actions of Pitts­burgh Press were unprotected.

v We emphasize that nothing in our holding allows gov­

ernment 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. ~or,

a fortiori, does our decision authorize any restrictwn whatever, whether of content or layout. on stones or / commentary originated by Pittsburgh Press, its colum­nists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial .i uclg­ment 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 nonexernpt job opportunities, does not infnnge the First Amendment rights of Pittsburgh Press.

Affirmed,

APPENDIX

Among the advrrh;rmrnts carrird in the Sunday Pitt::;burgh Prr:;s on January 4, 1970, wa:; thr following onr, :;ubmittrd b~· an employ" ment agency and placed in thr "JOBS-MALE INTEHEST" columnl

ACAD. I~STRUCTORS . . . .... .... . ACCOU?\TA:--;TS .. .... ... ..... . . . AD:\I. ASS'T, CPA .......... .... .. . ADVEHTISING :\1Cm . . .. . .. ..... . BOOKKEEPER F -C ..... ... . . . . . . . FIXAXCIAL CO?\SULTAXT . . . . . . . :'IJARKETIXG -:'llAl\"AGER ... .. . . . :.\IG :\IT. TH A INEE .... .. . . .. ..... . OFFICE :\ICH. THAIXEE . . .. .... . LAXD DEVELOI\\IEXT ... . . .... . PHODlTCT. :\JAXAGEH ... ... .... . PERSOl\"XEL MA?\AGER . ... . . .. . SALES-ADVERTISH\G . .. .. .... . . SALES-CO:'\SP:\JER . . ....... . ... . SALES-IXDVSTHIAL . . ......... . SALES-\ IACHINERY RETAIL :\JGH ............ ..

;:)1:3,000 10 .000 15,000 10,00(\ 9.000

12 .000 15,000 8,400 7,200

:30,000 18.000 OPE:\

S..J.OO 9,()00

1:2 ,000 1\,..J.OO

15,000 l\Io~t Po~ition~ Frr Paid

E:\1PLOY:\ lE~T SPECIALISTS 2248 OliYer Bldg. 261-2250

Employment Agency

App., p . 311a. On the same day , the 8amr agency'::; ndvertisemPnt in the "JOBS~

FEMALE INTEREST" column was a::; follows: - - -

ACAD. INSTRUCTORS ...... ~1~,000 ACCOPXTANTS . . . . . . . . . . f\.000 AFTO-IXS. CXDEHWHITEH OPE0:' BOOKKEEPER-INS . . . . . . 5,000 CLEHK-TYPIST . . . . . . . . . . . . . . . . . 4,200 DHAFTS:\IA:'\ . . . . . . . . . . . . . . . . . . . . 6,000 l\E'iTP(1"0:'CII D. T. . . . fi ,720 KEYI'( i \'CH BEGH\NER . .. .. .. . 4,500 PHOOFREADEH . . . . . . . . . . . . . . . 4.900 RECEPTIOXIST-:\lature D. T ... OPEN EXEC'. SEC . .. .. . .. .. .. .. .. .. 6.300 SECHI~TAHY . .. . .. .. .. . .. .. . 4,800 SECHETAHY. Eq11al Oppor . . . . . . . 6,000 SECHETAHY D. T ......... . . . . . . 5,400 TEACHERS-Pt. Tunr . . . . . . . . dn~· :33 TYPIHT-Statl~tlcal . . 5,000

App., p . 311a.

Mo~t Po~itwn~ Fee Paid @IPLOY:\IENT SPECIALISTS

22-lS Oli\'Pl' Bldg. 261-2250 Emplo~·ment Agrnc~

lq

,,

72-419-0PINION

16 PITTSBURGH PRESS CO. v. HUMAN REL. COMM'N

Characteristic of those offering full er job descriptions was the following advertisement, carried in the "JOBS-MALE INTEREST"

' column:

STAFF l\IANAGEMENT TRAINEE TO $12,000

If you have had background in the manage­ment of small business then this could hr the stepping stone you have been waiting for. You will be your own boss with no ca~h outlay. Call or write today.

App., p. 313a.

CHAMBERS OF"

THE CHIEF ..JUSTICE

.Ju:.prmu ~ourl of tqt 'Jttittb .Jtatts Jfas!p:ttghtn.. ~. <!f. 211,?~~

June 12, 1973

Re: No. 72-419 - Pittsburgh Press Company v.

Dear Lewis:

The Pittsburgh Commission on Human Relations, et al.

Please note at the end of your opinion that I dissent. Given all the pending problems I will not try to articulate my reasons although I may refer to a citation. Until we conclude the bounties that government gives the press, e. g., special anti-trust immunity and favored mail subsidies, render their acts "governmental action," I think government cannot deal with the content of a newspaper.

Regards,

Mr. Justice Powell

Copies to the Conference

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F' ., I •

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Ju~tice

")uglas • u, rennon

OJ &towart -C White

ctice .Marshall u.stice Powell ~ r~stioe Rennquiat

• Lick .u.n, J.

t d: ~~13ifJ3 I

l e..c ~· .... at&d~

No. 72-419 - Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations

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 the bottom of page 3 •

' '