Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations
413 U.S. 376 (1973)
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Rule of Law:
The First Amendment does not protect commercial speech that promotes an illegal commercial activity. Therefore, a government may prohibit a newspaper from publishing help-wanted advertisements in sex-designated columns when sex discrimination in employment is illegal.
Facts:
- The City of Pittsburgh enacted a Human Relations Ordinance making it illegal for employers to discriminate based on sex.
- The ordinance also made it unlawful for any person to aid an employer in committing such discriminatory practices.
- The Pittsburgh Press Co. (Pittsburgh Press) published a newspaper that categorized its help-wanted advertisements into columns titled 'Jobs—Male Interest' and 'Jobs—Female Interest.'
- Advertisers would choose in which of the sex-designated columns to place their job listings.
- Many of the jobs advertised were not for positions where sex was a bona fide occupational qualification, meaning sex-based hiring for them was illegal under the ordinance.
- The National Organization for Women, Inc. (NOW) filed a complaint with the Pittsburgh Commission on Human Relations, alleging the newspaper's practice aided illegal sex discrimination.
Procedural Posture:
- The National Organization for Women (NOW) filed a complaint against Pittsburgh Press with the Pittsburgh Commission on Human Relations (the Commission).
- After a hearing, the Commission found that Pittsburgh Press was violating the ordinance and issued a cease-and-desist order.
- Pittsburgh Press appealed to the Court of Common Pleas (the trial court), which affirmed the Commission's order.
- Pittsburgh Press, as appellant, appealed to the Commonwealth Court of Pennsylvania (an intermediate appellate court).
- The Commonwealth Court affirmed the order but modified it to permit sex-designated columns for jobs legally exempt from the ordinance.
- The Pennsylvania Supreme Court (the state's highest court) denied review.
- The U.S. Supreme Court granted certiorari to review the decision of the Commonwealth Court.
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Issue:
Does a city ordinance that forbids a newspaper from publishing 'help-wanted' advertisements in sex-designated columns violate the freedoms of speech and press guaranteed by the First and Fourteenth Amendments?
Opinions:
Majority - Justice Powell
No. The ordinance does not violate the First Amendment because it restricts commercial speech that is related to illegal activity. The advertisements in question are classic examples of commercial speech, as they do no more than propose a commercial transaction. Unlike the political speech in New York Times Co. v. Sullivan, these ads do not express any position on social policy. The newspaper's editorial judgment in creating the column layout does not transform the ads into protected speech; the placement and the ad itself form an 'integrated commercial statement.' Crucially, the underlying commercial activity proposed by the advertisements—discriminatory hiring—is illegal under the ordinance. The First Amendment provides no protection for advertising that proposes an illegal transaction, just as a newspaper could be constitutionally forbidden from publishing ads for illegal narcotics. Therefore, the commission's narrowly drawn order, which only prohibits aiding illegal discrimination and does not affect the newspaper's ability to report on or editorialize about the ordinance, is permissible.
Dissenting - Chief Justice Burger
Yes. The Court's holding represents a disturbing enlargement of the 'commercial speech' doctrine and a serious encroachment on freedom of the press. The newspaper's decision to organize its classified ads with sex-designated columns, especially with an explicit disclaimer notice, falls within its protected journalistic discretion. The Commission's order is effectively a prior restraint, as it is an outstanding injunction against certain publications. This forces the newspaper to make difficult and risky legal judgments about whether a potential advertiser is exempt from the ordinance, with the threat of contempt proceedings for a wrong guess, creating a significant chilling effect on the press.
Dissenting - Justice Douglas
Yes. While a newspaper can be held accountable for its own discriminatory employment practices, the First Amendment protects its right to publish what it pleases without censorship. The 'commercial speech' doctrine from Valentine v. Chrestensen, which denies First Amendment protection to commercial materials, is incorrect. All speech, including commercial advertising, should have First Amendment protection. The government can punish an employer for illegal discrimination, but it cannot censor a newspaper for publishing an advertisement that expresses that employer's preference.
Dissenting - Justice Stewart
Yes. The central issue is whether any government agency can tell a newspaper in advance what it can print and how it must arrange its pages, and under the First Amendment, it cannot. This case is not about regulating a newspaper as a business, but about the government dictating the layout and makeup of the newspaper's pages. This is the first time a court has permitted a government agency to enter a newspaper's 'composing room' and dictate its layout, setting a dangerous precedent. If the government can dictate the layout of classified ad pages today to achieve a socially desirable goal, there is nothing to prevent it from dictating the layout of the news pages tomorrow.
Dissenting - Justice Blackmun
Yes. The dissent is based substantially on the reasons stated in Justice Stewart's opinion, but does not subscribe to the paragraph critiquing the Court's 'balancing' approach in other recent First Amendment cases.
Analysis:
This decision solidified the 'commercial speech' doctrine, establishing that advertising receives less First Amendment protection than core political speech. It created the 'illegality exception,' a bright-line rule that speech proposing an illegal transaction is unprotected. This ruling had a profound practical impact, effectively ending the common practice of sex-segregated help-wanted ads in American newspapers. While the Court would later expand protections for truthful advertising of legal products and services, this case established a durable principle that the First Amendment does not shield advertising for illegal conduct from government regulation.
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