## Facts

- Black individual plaintiffs seeking housing in the New York metropolitan area, and a nonprofit fair-housing organization, sued a newspaper publisher for publishing real estate advertisements.
- The complaint alleged that over roughly twenty years the paper ran real estate ads using human models in which virtually all models were white.
- It further alleged that the few Black models appeared mainly in non-consumer, service roles (e.g., building staff) or in connection with housing in predominantly Black areas.
- Plaintiffs claimed that, to an ordinary reader, the ads communicated that white people were preferred occupants and Black people were not.
- Plaintiffs brought claims under the Fair Housing Act (including 42 U.S.C. § 3604(c)), 42 U.S.C. §§ 1981 and 1982, and the Thirteenth Amendment, seeking declaratory and injunctive relief and damages.
- The district court dismissed the Thirteenth Amendment, §§ 1981 and 1982, and § 3604(a) claims, but denied dismissal of the § 3604(c) advertising claim.
- The publisher took an interlocutory appeal under 28 U.S.C. § 1292(b) challenging the denial of its Rule 12(b)(6) motion as to § 3604(c), arguing lack of statutory coverage plus First Amendment, vagueness, and press-burden objections.

## Issues

1. Whether 42 U.S.C. § 3604(c) reaches real estate advertisements that allegedly indicate a racial preference through images and model selection, even without explicit racial wording.
2. Whether the complaint plausibly alleged, under the Rule 12(b)(6) standard, that the published ads would indicate a racial preference to an ordinary reader.
3. Whether applying § 3604(c) to a newspaper’s publication of real estate advertisements violates the First Amendment.
4. Whether § 3604(c), as applied using an “ordinary reader” standard, is unconstitutionally vague or imposes an unconstitutional burden on newspapers.

## Decision

- The Second Circuit affirmed the order denying dismissal of the § 3604(c) claim.
- The court held the complaint plausibly alleged that the advertisements, viewed in context, could indicate a racial preference to an ordinary reader.
- The court rejected the First Amendment challenge, treating the advertisements as commercial speech connected to unlawful housing discrimination and therefore subject to prohibition.
- The court rejected vagueness and press-burden arguments, concluding the “ordinary reader” standard provides adequate notice and that requiring newspapers to screen discriminatory housing ads is not unconstitutional.
- The case was remanded for further proceedings on the § 3604(c) claim.

## Legal Principles

- Fair Housing Act § 3604(c) prohibits making, printing, or publishing housing advertisements that indicate any racial preference, limitation, or discrimination.
- An advertisement may violate § 3604(c) through implicit messages communicated by images and presentation, not only explicit racial terms.
- The “ordinary reader” test governs whether an ad indicates a prohibited preference: the question is what the ad conveys to an ordinary reader in context.
- Commercial speech that furthers or proposes illegal discrimination in housing may be restricted consistently with the First Amendment.
- Section 3604(c) is not void for vagueness merely because it requires contextual assessment under the ordinary reader standard, and applying it to newspapers is not an unconstitutional burden on the press.

## Conclusion

The Second Circuit allowed the Fair Housing Act § 3604(c) claim to proceed, holding that housing ads can unlawfully indicate racial preference through imagery and that enforcing § 3604(c) against a newspaper publisher is constitutionally permissible at the pleading stage.


Ragin v. N.Y. Times Co., 923 F.2d 995 (2d Cir. 1991)