Commonwealth v. Pittsburgh Press Co.

396 A.2d 1187, 483 Pa. 314, 99 A.L.R. 3d 144, 4 Media L. Rep. (BNA) 2109, 1979 Pa. LEXIS 436, 19 Empl. Prac. Dec. (CCH) 8964, 18 Fair Empl. Prac. Cas. (BNA) 1709

• Court: Supreme Court of Pennsylvania
• Decided: January 24, 1979
• Docket: 42
• Status: Published

Opinions

OPINION

MANDERINO, Justice.

This appeal is from the order of the Commonwealth Court reversing the order of the Pennsylvania Human Relations Commission (Commission), and declaring unconstitutional that portion of Section 5(g) of The Pennsylvania Human Relations Act, 43 P.S. § 955(g). Section 5(g) prohibits the publication of advertisements for employment expressing the race, color, religious creed, ancestry, age, sex, or national origin of the advertiser. Pittsburgh Press Co. v. Comm., Human Relations Commission, 31 Pa.Cmwlth. 218, 376 A.2d 263 (1977).

The circumstances surrounding this appeal are as follows. On March 15, 1975, the Commission charged the Pittsburgh Press Company (Press) with “maintainpng] a pattern and practice of aiding and abetting the doing of an unlawful discriminatory act” in violation of Section 5(e) of The Pennsylvania Human Relations Act. According to the Commission, the Press violated Section 5(e) of the Act by publishing “situation wanted” advertisements alleged to be unlawful under Section 5(g) because the ads identified the advertiser’s sex, race, religion, or age.

The Pittsburgh Press is a newspaper of general circulation throughout the greater Pittsburgh metropolitan area. The “situation wanted” section of the Press’ classified advertisements provides a vehicle for persons seeking employment to describe themselves, their job qualifications, and the kind of employment they are seeking. The Press accepts and publishes these ads exactly as submitted by the advertisers.

On June 27, 1975, following an investigation from which the Commission determined that there was probable cause to credit the allegations contained in the complaint referred to above, the Commission issued a final order requiring the Press to cease and desist from publishing “situation wanted” advertisements, the contents of which are prohibited by Section 5(g).

On appeal, the Commonwealth Court reversed the Commission’s final order, and ruled that Sub-section 5(g) was unconstitutional. We granted the Commission’s petition for allowance of appeal, and this appeal followed.

The Pennsylvania Human Relations Act, Act of October 27,1955, P.L. 744, § 1, as amended 43 P.S. §§ 951, et seq., establishes it as

. . the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their race, color, religious creed, ancestry, handicap or disability, use of guide dogs because of blindness of the user, age, sex, or national origin, and to safeguard their right to obtain and hold employment without such discrimination, to assure equal opportunities to all individuals and to safeguard their rights at places of public accommodation and to secure commercial housing regardless of race, color, religious creed, ancestry, sex, handicap or disability, use of guide dogs because of blindness of the user or national origin.”

To further this public policy, Section 5 of the Act makes certain discriminatory employment practices unlawful. 43 P.S. § 955(a) through (j). Among other things, in 5(g), the Act makes it unlawful employment discrimination

“[f]or any individual seeking employment to publish or cause to be published any advertisement which specifies or in any manner expresses his race, color, religious creed, ancestry, age or national origin, or in any manner expresses a limitation or preference as to the race, color, religious creed, ancestry, age, sex or national origin of any prospective employer.” 43 P.S. § 955(g).

Section 5(e) also makes it unlawful

“[f]or any person, whether or not an employer, employment agency, labor organization or employe, to aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice,

The Commission found that by accepting and presenting “situation wanted” advertisements which included references to the criteria declared unlawful by Section 5(g), the Press had “aided and abetted” the unlawful employment practice proscribed by that section, the Press was therefore found to be in violation of Section 5(e).

The Commonwealth Court recognized that the advertisements which formed the basis of the Commission’s complaint clearly violated Section 5(g):

“An indication of the type of advertisement found by the Commission to violate Section 5(g) can be ascertained from the specific examples set forth in the Hearing Panel’s findings of fact. These examples were drawn from stipulated exhibits which included the Press’ ‘Situation Wanted’ columns from Sunday, June 1, 1975 to Thursday, June 26, 1975:

‘COLLEGE GRAD — Born again Christian with Bachelor’s Degree and seven yrs. sales and marketing mgmt. experience seeking work with Christian business or organization . . ..’

‘White woman — desires day work, office cleaning.’

‘Parolee — White needs employment to be released. Licensed steam boiler and engineer . . .

‘Salesman — Age 30, looking for career in Pittsburgh, start immediately, 15 years sales experience . . .

‘What can I do for you? Recent college grad, good looking, twenty-five years old, B.S. in Business Administration, seeks entry level management position.’

‘Man — mature, accounting, bookkeeping, office management, desires position in these or related fields.’

It is obvious at a glance that the contents of these advertisements are in contravention of the letter of Section 5(g).”

(Footnotes omitted.) 31 Pa.Cmwlth. at 223, 376 A.2d at 265.

The Press did not contend otherwise before the Commonwealth Court, nor does it so contend here. The Press argues, however, that Section 5(g) unlawfully infringes on First Amendment rights. We agree with the Commonwealth Court that the advertiser’s rights, as guaranteed by the First Amendment to the United States Constitution, are improperly restricted by the prohibition of Section 5(g). We therefore affirm the order of the Commonwealth Court.

The Press did not contend before the Commonwealth Court that the state may not prohibit discriminatory employment practices. It argued, however, that the restriction on freedom of expression contained in Section 5(g) is not necessary to promote that legitimate state objective. We agree with the Press that the Commission has not shown that the prior restraint of Section 5(g) is necessary to promote this legitimate state interest. The Commission argued that this case is controlled by Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973) (Press I). The Press argues that in light of more recent pronouncements of the United States Supreme Court, Press I is no longer viable law. We need not decide this point, however, because unlike the situation in Press I, what the Commission seeks to do in this case is to restrict the expression of the advertiser itself, rather than to restrict the unlawful activity of employment discrimination. While it held that legitimate regulation of an unlawful activity may incidentally effect an advertiser’s right to freedom of expression, Press I does not stand for the proposition that prior restraint may be imposed on commercial speech even though that speech does not propose an illegal transaction.

The United States Supreme Court has, of course, said that it is permissible to regulate commercial advertising in some ways: “[advertising that is false, deceptive, or misleading ... is subject to restraint” Bates v. State Bar of Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810, 835 (1977); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976); as is purely commercial advertising concerning transactions that are themselves illegal, Bates v. State Bar of Arizona, supra; Press I, supra. Similarly, reasonable restrictions may be placed upon the time, place, and manner, of advertising Virginia Pharmacy Board, supra; and special restrictions may be allowable with regard to advertising on the electronic broadcast media, cf. Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (D.C.1971), aff’d sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972).

The restriction imposed by Section 5(g), however, goes directly to the advertiser’s right to freely express his or her job qualifications, abilities, personal experience, or educational history. In Press I, the employer’s placement of “Help-wanted” containing sex preference designations constituted an act of illegal sex discrimination in the hiring of personnel. As a result, the Supreme Court said in Press I, that

“[a]ny 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.” 413 U.S. at 389, 93 S.Ct. at 2561, 37 L.Ed.2d at 679.

In contrast to the advertising employer’s illegal, sex-based, employment discrimination in Press I, in the instant case the advertisers are prospective employees proposing commercial transactions — their own employment — which are not illegal. By its terms, the Act applies to employers, and those who aid and abet employers to practice employment discrimination. In Press I the Act clearly proscribed the underlying activity — sex based discrimination by the employer — and by providing sex-designated Help-wanted columns in its classified advertising section, the Press directly aided and abetted such employers’ practice of sex based employment discrimination. Indeed, the Press did not challenge the illegality of the underlying acts in Press I. In the present case, the “situation wanted” ads proposed no illegal transactions, they simply ask that prospective employers hire the respective individual advertisers. The prospective employees’ use of prohibited employment criteria in an advertisement cannot reasonably be said to aid an employer who might be predisposed to utilize such forbidden criteria. Knowledge of such forbidden criteria — age, sex, race, color, etc., — is readily obtainable by the employer simply by scheduling a pre-employment interview, or by requesting submission of an employment resume. Any effect that enforcement of Section 5(g) might have on reducing employment discrimination made illegal by Section 5(e) is thus too speculative to justify Section 5(g)’s direct restriction on the advertiser’s freedom of expression.

As was stated by the United States Supreme Court in Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 fn. 6, 97 S.Ct. 1614, 1618, fn. 6, 52 L.Ed.2d 155, 161 fn. 6 (1977):

“After Virginia Pharmacy Bd. [v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)] it is clear that commercial speech cannot be banned because of an unsubstantiated belief that its impact is detrimental.”

In Linmark, the record failed to support the township’s assumption that proscribing the placement of “for sale” signs in front of township homes would reduce public awareness of realty sales and thereby decrease public concern over selling. Likewise, in the instant case, the record fails to establish the statutory assumption contained in 5(g) that because of the revelation of supposed illegal employment criteria contained in the prohibited “situation wanted” ads, employers would be more likely to base their hiring decisions on such illegal criteria.

Order of the Commonwealth Court is affirmed.

POMEROY, former J., did not participate in the decision of this case. ROBERTS, J., filed a concurring opinion. NIX, J., filed a dissenting opinion.