Linmark v. Willingboro
Decided on May 2, 1977; 431 US 85

A township ordinance prohibiting the posting of real estate 'For Sale' and 'Sold' signs for the purpose of stemming what the township perceived as the flight of white homeowners from a racially integrated community held to violate the First Amendment.



A. Issues Discussed: Freedom of speech, commercial speech

B. Legal Question Presented:

Does the First Amendment permit a municipality to prohibit the posting of "For Sale" or "Sold" signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community?

A. Background:

"Petitioner Linmark Associates, a New Jersey corporation, owned a piece of realty in the township of Willingboro, NJ. Petitioner decided to sell its property, and on March 26, 1974, listed it with petitioner Mellman, a real estate agent. To attract interest in the property, petitioners desired to place a 'For Sale' sign on the lawn. Willingboro, however, narrowly limits the types of signs that can be erected on land in the township.

Although prior to March 1974 'For Sale' and 'Sold' signs were permitted subject to certain restrictions not at issue here, on March 18, 1974, the Township Council enacted Ordinance 5-1974, repealing the statutory authorization for such signs on all but model homes.

Petitioners brought this action against both the township and the building inspector charged with enforcing the ban on 'For Sale' signs, seeking declaratory and injunctive relief.

The District Court granted a declaration of unconstitutionality, but a divided Court of Appeals reversed."

On certiorari, the US Supreme Court reversed the judgment of the US Court of Appeals for the Third Circuit judgment.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
"This kind of commercial speech is protected by the First Amendment. The township has been unable to show that the ordinance furthers any significant governmental interest in order to justify infringing on First Amendment rights. The sign prohibition does not merely restrict time, place and manner, but censors. The record does not support the need for the ordinance."
"It is a legitimate municipal interest to keep white members of the township in the township, in order to maintain an integrated community. Municipal interests which are sufficient to justify the prohibition of commercial activity in residential neighborhoods also justify the prohibition of commercial signs in residential neighborhoods. Commercial speech may be regulated as to time, place and manner. 'For sale' and 'sold' signs create an aspect of commercialism in otherwise quiet residential neighborhoods. Speech represented by these signs does not need to be constitutionally protected when the actual result of this speech is creation of fear of resegregation."
Opposing Side
John P. Hauch, Jr., argued the cause for petitioners. With him on the brief was Thomas L. Earp. Joel M. Gora filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal. Myron H. Gottlieb argued the cause and filed a brief for respondents. Briefs of amici curiae urging affirmance were filed by Jack Greenberg, Charles Stephen Ralston, and Melvyn R. Leventhal for the N.A.A.C.P. Legal Defense & Educational Fund, Inc.; by Paul R. Donaldson and Donald K. Barclay for the cities of Shaker Heights and Cleveland Heights, Ohio; by Burton R. Shifman for the city of Oak Park, Mich.; and by Housing Advocates, Inc.

"The ordinance cannot be sustained on the ground that it restricts only one method of communication while leaving ample alternative communication channels open. The alternatives (primarily newspaper advertising and listing with real estate agents, which involve more cost and less autonomy than signs, are less likely to reach persons not deliberately seeking sales information, and may be less effective) are far from satisfactory. And the ordinance is not genuinely concerned with the place (front lawns) or the manner (signs) of the speech, but rather proscribes particular types of signs based on their content because the township fears their 'primary' effect - that they will cause those receiving the information to act upon it.

Moreover, despite the importance of achieving the asserted goal of promoting stable, integrated housing, the ordinance cannot be upheld on the ground that it promotes an important governmental objective, since it does not appear that the ordinance was needed to achieve that objective and, in any event, the First Amendment disables the township from achieving that objective by restricting the free flow of truthful commercial information."

The US Supreme Court reversed the United States Court of Appeals for the Third Circuit judgment.

Justice Vote: 8 Pro vs. 0 Con
  • Marshall, T. Pro (Wrote majority opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Powell, L. Pro (Joined majority opinion)
  • Stewart, P. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Blackmun, H. Pro (Joined majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • Rehnquist, W. Took no part in decision

    The ACLU, as amicus curiae, urged reversal of the judgment of the United States Court of Appeals for the Third Circuit; the Supreme Court reversed in a 8-0 vote, giving the ACLU an apparent win.