Facts
- A city ordinance prohibited employment discrimination based on sex, subject to a narrow bona fide occupational qualification (BFOQ) exception, and prohibited aiding or abetting unlawful discrimination.
- A newspaper organized employment classifieds under sex-based headings (e.g., “Help Wanted—Male” and “Help Wanted—Female,” later framed as “Male Interest” and “Female Interest”).
- Employers were permitted to place ads under sex-based headings even when sex was not a lawful job qualification.
- The newspaper added a disclaimer stating the headings were for readers’ convenience and that, unless an ad specified otherwise, both sexes were encouraged to apply.
- A complaint was filed alleging the headings violated the ordinance by facilitating sex discrimination in hiring.
- After hearings, the city human relations commission found the newspaper had aided unlawful discrimination and issued a cease-and-desist order barring sex-designated headings except for jobs where sex was a lawful BFOQ.
- State courts upheld the order, with clarification that sex-designated headings were allowed only for exempt (BFOQ) job opportunities.
- The newspaper sought review, claiming the order violated the First and Fourteenth Amendments by interfering with editorial discretion and imposing an unconstitutional restraint on speech.
Issues
- Whether applying a municipal anti-discrimination ordinance to forbid sex-designated classified-ad headings for non-BFOQ jobs violates a newspaper’s First Amendment rights.
- Whether restricting sex-designated headings in employment classifieds is an impermissible prior restraint when imposed through an administrative cease-and-desist order.
- Whether a newspaper’s organization and labeling of classified ads constitutes protected editorial judgment immune from regulation aimed at unlawful discrimination.
Decision
- The Court affirmed the order as applied, holding that prohibiting sex-designated headings for non-exempt job opportunities did not violate the First Amendment.
- The Court treated the affected content as purely commercial advertising rather than news, commentary, or other protected editorial expression.
- Because the ordinance permissibly barred discriminatory hiring, the city could also restrict advertising practices that directly furthered that unlawful conduct.
- The newspaper remained free to publish news and editorials about employment practices, sex discrimination, and the ordinance itself.
- The administrative order was not an impermissible prior restraint because it was clear, limited to non-BFOQ job advertising headings, and directed at commercial advertising tied to illegal conduct.
Legal Principles
- Commercial advertising may receive reduced First Amendment protection, particularly when it facilitates unlawful commercial activity.
- Government may regulate advertising that materially aids or abets illegal discrimination where the underlying discriminatory conduct itself may be prohibited.
- Regulation of classified-ad format and headings can be permissible when it targets discriminatory effects in employment markets and does not restrict editorial content or public debate.
- A narrowly limited cease-and-desist order directed to unlawful commercial advertising practices is not automatically invalid as a prior restraint.
Conclusion
The Court held that a city could bar sex-segregated job-classified headings for non-BFOQ positions because the headings functioned as commercial advertising that furthered unlawful employment discrimination, while leaving the newspaper’s editorial and news expression unrestricted.