Pittsburgh Press Co. v. Human Relations Commission
Decided on June 21, 1973; 413 US 376


Newspaper challenged for allowing "help wanted" section to list job ads by gender

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Civil Rights (gender), 1st amendment

B. Legal Question Presented:

Does a city ordinance, forbidding newspapers from carrying "help wanted" advertisements in gender designated columns, violate the freedoms of speech and of the press guaranteed by the 1st Amendment?

II. CASE SUMMARY:

A. Background:

The City of Pittsburgh had a Human Relations Ordinance (the Ordinance), which prohibited newspapers from carrying "help-wanted" advertisements under headings designating job preference by gender.

The National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations (the Commission) for violating the Ordinance. The complaint alleged that the petitioner, Pittsburgh Press Company, violated the Ordinance by using an advertising system in its newspaper that allowed employers to list employment opportunities under columns designating job preference by gender.  The jobs advertised did not have "bonafide occupational qualifications or exceptions" which would exempt them from the Ordinance.

Respondent, Pittsburgh Commission on Human Relations, held a hearing and concluded that Pittsburgh Press had violated the Ordinance.  The Commission rejected petitioner's argument that the Ordinance violated the First Amendment. It also ordered petitioner to cease and desist their violations and to revise their "help wanted" advertisements section by omitting reference to gender. The Court of Common Pleas affirmed the Commission's order.

Petitioner appealed to the Commonwealth Court, which narrowed the order to allow petitioner to carry advertisements in gender designated columns for certain jobs that were not subject to the Ordinance's prohibition against discrimination. The Pennsylvania Supreme Court denied review, and the US Supreme Court granted certiorari to decide whether, as petitioner argued, the modified order violates the First Amendment by restricting the newspaper's editorial judgment.
B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Eugene B. Strassburger III argued the cause and filed a brief for respondents Pittsburgh Commission on Human Relations, et al.

Marjorie H. Matson argued the cause for respondent National Organization of Women, Inc. With her on the brief was Sylvia Roberts.
Charles R. Volk argued the cause for petitioner.  With him on the briefs was Ralph T. DeStefano
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable  
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Norman Dorsen, Ruth Bader Ginsburg, and Jeffrey A. Kay filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.

Briefs of amici curiae urging affirmance were filed by Solicitor General Griswold, Assistant Attorney General Pottinger, Deputy Solicitor General Wallace, Harriet S. Shapiro, John C. Hoyle, Julia P. Cooper, and Beatrice Rosenberg for the United States; by Evelle J. Younger, Attorney General of California, Robert H. O'Brien and Carl Boronkay, Assistant Attorneys General, and Judith T. Ashmann, Deputy Attorney General, for the California Fair Employment Practice Commission; by George F. Kugler, Jr., Attorney General, Stephen Skillman, Assistant Attorney General and David S. Litwin, Deputy Attorney General, for the State of New Jersey; by Israel Packel, Attorney General of Pennsylvania, and Roy Yaffe and Michael L. Golden, Jr., Assistant Attorneys General, for the Pennsylvania Commission on the Status of Women et al.; by Phineas Indritz, Elizabeth Boyer, Marguerite Rawalt, Martha W. Griffiths, Margaret M. Heckler, and Donald M. Fraser for the American Veterans Committee, Inc., et al.; by Philip J. Tierney for the International Association of Official Human Rights Agencies; and by Rita Page Reuss and Jane M. Picker for the Women's Law Fund, Inc.
Arthur B. Hanson and Ralph N. Albright, Jr., filed a brief for the American Newspaper Publishers Association as amicus curiae urging reversal.
IV. THE SUPREME COURT'S DECISION:

"Section 8(j) of the Ordinance, the only provision which Pittsburgh Press was found to have violated and the only provision under attack here, makes it unlawful for 'any person... to aid... in the doing of any act declared to be an unlawful employment practice by this ordinance.' The Commission and the courts below concluded that the practice of placing want ads for non-exempt employment in sex-designated columns did indeed 'aid' employers to indicate illegal sex preferences. The advertisements, as embroidered by their placement, signaled that the advertisers were likely to show an illegal sex preference in their hiring decisions. Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity...

The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. Moreover, the order is clear, and sweeps no more broadly than necessary...

We emphasize that nothing in our holding allows government at any level to forbid Pittsburgh Press to publish and distribute advertisements commenting on the Ordinance, the enforcement practices of the Commission, or the propriety of sex preferences in employment. Nor, a fortiori, does our decision authorize any restriction whatever, whether of content or layout, on stories or commentary originated by Pittsburgh Press, its columnists, or its contributors. On the contrary, we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on these and other issues, however controversial. We hold only that the Commission's modified order, narrowly drawn to prohibit placement in sex-designated columns of advertisements for nonexempt job opportunities, does not infringe the First Amendment rights of Pittsburgh Press. Affirmed."
Justice Vote: 5 Pro vs. 4 Con
  • Powell, L. Pro (Wrote majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Marshall, T.  Pro (Joined majority opinion)
  • Rehnquist, W. Pro (Joined majority opinion)
  • Burger, W. Con (Wrote dissenting opinion)
  • Stewart, J. Con (Wrote dissenting opinion)
  • Blackmun, H. Con (Wrote dissenting opinion)
  • Douglas, W. Con (Wrote dissenting opinion, joined Stewart's dissent)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus curiae affirmance, the US Supreme Court affirmed the judgment of the Commonwealth Court of Pennsylvania in a 5-4 vote, giving the ACLU an apparent win.