413 U.S.

376
93 S.Ct. 2553
37 L.Ed.2d 669

PITTSBURGH PRESS COMPANY, Petitioner,

v.
The PITTSBURGH COMMISSION ON HUMAN
RELATIONS et al.
No. 72419.
Argued March 20, 1973.
Decided June 21, 1973.
Rehearing Denied Oct. 9, 1973.

See 414 U.S. 881, 94 S.Ct. 30.

Syllabus
Following a complaint and hearing, respondent Pittsburgh Commission on
Human Relations held that petitioner had violated a city ordinance by
using an advertising system in its daily newspaper whereby employment
opportunities are published under headings designating job preference by
sex. On appeal from affirmance of the Commission's cease-and-desist
order, the court below barred petitioner from referring to sex in
employment headings, unless the want ads placed beneath them relate to
employment opportunities not subject to the ordinance's prohibition
against sex discrimination. Petitioner contends that the ordinance
contravenes its constitutional rights to freedom of the press. Held: The
Pittsburgh ordinance as construed to forbid newspapers to carry sexdesignated advertising columns for nonexempt job opportunities does not
violate petitioner's First Amendment rights. Pp. 381391.
(a) The advertisements here, which did not implicate the newspaper's
freedon of expression or its financial viability, were 'purely commercial
advertising,' which is not protected by the First Amendment. Valentine v.
Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 921, 86 L.Ed. 1262. New
York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686,
distinguished. Pp. 384 387.

(b) Petitioner's argument against maintaining the Chrestensen distinction

between commercial and other speech is unpersuasive in the context of a
case like this, where the regulation of the want ads was incidental to and
coextensive with the regulation of employment discrimination. Pp. 387
389.
(c) The Commission's order, which was clear and no broader than
necessary, is not a prior restraint endangering arguably protected speech.
Pp. 389390.
4. Pa.Cmwlth. 448, 287 A.2d 161, affirmed.
Charles Richard Volk, Pittsburgh, Pa., for petitioner.
Eugene B. Strassburger, III, Pittsburgh, Pa., for respondents The
Pittsburgh Commission on Human Relations and others.
Marjorie H. Matson, Pittsburgh, Pa., for respondent The National
Organization for Women, Inc.
[amici curiae information on Page 377 intentionally omitted]
Mr. Justice POWELL delivered the opinion of the Court.

The Human Relations Ordinance of the City of Pittsburgh (the Ordinance) has
been construed below by the courts of Pennsylvania as forbidding newspapers
to carry 'help-wanted' advertisements in sex-designated columns except where
the employer or advertiser is free to make hiring or employment referral
decisions on the basis of sex. We are called upon to decide whether the
Ordinance as so construed violates the freedoms of speech and of the press
guaranteed by the First and Fourteenth Amendments. This issue is a sensitive
one, and a full understanding of the context in which it arises is critical to its
resolution.

* The Ordinance proscribes discrimination in employment on the basis of race,

color, religion, ancestry, national origin, place of birth, or sex.1 In relevant part,
8 of the Ordinance declares it to be unlawful employment practice, 'except
where based upon a bona fide occupational exemption certified by the
Commission':

'(a) For any employer to refuse to hire any person or otherwise discriminate
against any person with respect to hiring . . . because of . . . sex.

'(e) For any 'employer,' employment agency or labor organization to publish or

circulate, or to cause to be published or circulated, any notice or advertisement
relating to 'employment' or membership which indicates any discrimination
because of . . . sex.

'(j) For any person, whether or not an employer, employment agency or labor
organization, to aid . . . in the doing of any act declared to be an unlawful
employment practice by this ordinance . . ..' The present proceedings were
initiated on October 9, 1969, when the National Organization for Women, Inc.
(NOW) filed a complaint with the Pittsburgh Commission on Human Relations
(the Commission), which is charged with implementing the Ordinance. The
complaint alleged that the Pittsburgh Press Co. (Pittsburgh Press) was violating
8(j) of the Ordinance by 'allowing employers to place advertisements in the
male or female columns, when the jobs advertised obviously do not have bona
fide occupational qualifications or exceptions . . ..' Finding probable cause to
believe that Pittsburgh Press was violating the Ordinance, the Commission held
a hearing, at which it received evidence and heard argument from the parties
and from other interested organizations. Among the exhibits introduced at the
hearing were clippings from the help-wanted advertisements carried in the
January 4, 1970, edition of the Sunday Pittsburgh Press, arranged by column.2
In many cases, the advertisements consisted simply of the job title, the salary,
and the employment agency carrying the listing, while others included
somewhat more extensive job descriptions.3

On July 23, 1970, the Commission issued a Decision and Order. 4 It found that
during 1969 Pittsburgh Press carried a total of 248,000 help-wanted
advertisements; that its practice before October 1969 was to use columns
captioned 'Male Help Wanted,' 'Female Help Wanted,' and 'Male-Female Help
Wanted'; that it thereafter used the captions 'JobsMale Interest,' 'Jobs
Female Interest,' and 'Male-Female'; and that the advertisements were placed in
the respective columns according to the advertiser's wishes, either volunteered
by the advertiser or offered in response to inquiry by Pittsburgh Press.5 The
Commission first concluded that 8(e) of the Ordinance forbade employers,
employment agencies, and labor organizations to submit advertisements for
placement in sex-designated columns. It then held that Pittsburgh Press, in
violation of 8(j), aided the advertisers by maintaining a sex-designated
classification system. After specifically considering and rejecting the argument
that the Ordinance violated the First Amendment, the Commission ordered
Pittsburgh Press to cease and desist such violations and to utilize a classification
system with no reference to sex. This order was affirmed in all relevant respects
by the Court of Common Pleas.6

On appeal in the Commonwealth Court, the scope of the order was narrowed to
allow Pittsburgh Press to carry advertisements in sex-designated columns for
jobs exempt from the antidiscrimination provisions of the Ordinance. As
pointed out in that court's opinion, the Ordinance does not apply to employers
of fewer than five persons, to employers outside the city of Pittsburgh, or to
religious, fraternal, charitable, or sectarian organizations, nor does it apply to
employment in domestic service or in jobs for which the Commission has
certified a bona fide occupational exception. The modified order bars 'all
reference to sex in employment advertising column headings, except as may be
exempt under said Ordinance, or as may be certified as exempt by said
Commission.' 4 Pa.Cmwlth. 448, 470, 287 A.2d 161, 172 (1972). The
Pennsylvania Supreme Court denied review, and we granted certiorari to decide
whether, as Pittsburgh Press contends, the modified order violates the First
Amendment by restricting its editorial judgment. 409 U.S. 1036, 93 S.Ct. 515,
34 L.Ed.2d 485 (1972).7 We affirm.

II
8

There is little need to reiterate that the freedoms of speech and of the press rank
among our most cherished liberties. As Mr. Justice Black put it: 'In the First
Amendment the Founding Fathers gave the free press the protection it must
have to fulfill its essential role in our democracy.' New York Times Co. v.
United States, 403 U.S. 713, 717, 91 S.Ct. 2140, 2143, 29 L.Ed.2d 822 (1971)
(concurring opinion). The durability of our system of self-government hinges
upon the preservation of these freedoms.

'(S)ince informed public opinion is the most potent of all restraints upon
misgovernment, the suppression or abridgement of the publicity afforded by a
free press cannot be regarded otherwise than with grave concern. . . . A free
press stands as one of the great interpreters between the government and the
people. To allow it to be fettered is to fetter ourselves.' Grosjean v. American
Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).

10

The repeated emphasis accorded this theme in the decisions of this Court serves
to underline the narrowness of the recognized exceptions to the principle that
the press may not be regulated by the Government. Our inquiry must therefore
be whether the challenged order falls within any of these exceptions.

11

At the outset, however, it is important to identify with some care the nature of
the alleged abridgment. This is not a case in which the challenged law arguably
disables the press by undermining its institutional viability. As the press has

evolved from an assortment of small printers into a diverse aggregation

including large publishing empires as well, the parallel growth and complexity
of the economy have led to extensive regulatory legislation from which '(t)he
publisher of a newspaper has no special immunity.' Associated Press v. NLRB,
301 U.S. 103, 132, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937). Accordingly, this
Court has upheld application to the press of the National Labor Relations Act,
ibid.; the Fair Labor Standards Act, Mabee v. White Plains Publishing Co., 327
U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946); Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); and the Sherman
Antitrust Act, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89
L.Ed. 2013 (1945); Citizen Publishing Co. v. United States, 394 U.S. 131, 89
S.Ct. 927, 22 L.Ed.2d 148 (1969). See also Branzburg v. Hayes, 408 U.S. 665,
92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). Yet the Court has recognized on several
occasions the special institutional needs of a vigorous press by striking down
laws taxing the advertising revenue of newspapers with circulations in excess
of 20,000, Grosjean v. American Press Co., supra; requiring a license for the
distribution of printed matter, Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82
L.Ed. 949 (1938); and prohibiting the door-to-door distribution of leaflets.
Martin v. Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).8
12

But no suggestion is made in this case that the Ordinance was passed with any
purpose of muzzling or curbing the press. Nor does Pittsburgh Press argue that
the Ordinance threatens its financial viability9 or impairs in any significant way
its ability to publish and distribute its newspaper. In any event, such a
contention would not be supported by the record.

III
13

In a limited way, however, the Ordinance as construed does affect the make-up
of the help-wanted section of the newspaper. Under the modified order,
Pittsburgh Press will be required to abandon its present policy of providing sexdesignated columns and allowing advertisers to select the columns in which
their help-wanted advertisements will be placed. In addition, the order does not
allow Pittsburgh Press to substitute a policy under which it would make an
independent decision regarding placement in sex-designated columns.

14

Respondents rely principally on the argument that this regulation is permissible

because the speech is commercial speech unprotected by the First Amendment.
The commercial-speech doctrine is traceable to the brief opinion in Valentine v.
Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), sustaining a city
ordinance which had been interpreted to ban the distribution by handbill of an
advertisement soliciting customers to pay admission to tour a submarine. Mr.

Justice Roberts, speaking for a unanimous Court, said:

15

'We are . . . clear that the Constitution imposes no such restraint on government
as respects purely commercial advertising.' Id., at 54, 62 S.Ct., at 921.

16

Subsequent cases have demonstrated, however, that speech is not rendered

commercial by the mere fact that it relates to an advertisement. In New York
Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a
city official of Montgomery, Alabama, brought a libel action against four
clergymen and the New York Times. The names of the clergymen had appeared
in an advertisement, carried in the Times, criticizing police action directed
against members of the civil rights movement. In holding that this political
advertisement was entitled to the same degree of protection as ordinary speech,
the Court stated:

17

'That the Times was paid for publishing the advertisement is as immaterial in
this connection as is the fact that newspapers and books are sold.' Id., at 266, 84
S.Ct., at 718.

18

See also Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959);
Ginzburg v. United States, 383 U.S. 463, 474, 86 S.Ct. 942, 949, 16 L.Ed.2d 31
(1966). If a newspaper's profit motive were determinative, all aspects of its
operationsfrom the selection of news stories to the choice of editorial
position would be subject to regulation if it could be established that they were
conducted with a view toward increased sales. Such a basis for regulation
clearly would be incompatible with the First Amendment.

19

The critical feature of the advertisement in Valentine v. Chrestensen was that,

in the Court's view, it did no more than propose a commercial transaction, the
sale of admission to a submarine. In New York Times Co. v. Sullivan, Mr.
Justice Brennan, for the Court, found the Chrestensen advertisement easily
distinguishable:

20

'The publication here was not a 'commercial' advertisement in the sense in

which the word was used in Chrestensen. It communicated information,
expressed opinion, recited grievances, protested claimed abuses, and sought
financial support on behalf of a movement whose existence and objectives are
matters of the highest public interest and concern.' 376 U.S., at 266, 84 S.Ct., at
718.

21

In the crucial respects, the advertisements in the present record resemble the

Chrestensen rather than the Sullivan advertisement. None expresses a position

on whether, as a matter of social policy, certain positions ought to be filled by
members of one or the other sex, nor does any of them criticize the Ordinance
or the Commission's enforcement practices. Each is no more than a proposal of
possible employment. The advertisements are thus classic examples of
commercial speech.
22

But Pittsburgh Press contends that Chrestensen is not applicable, as the focus in
this case must be upon the exercise of editorial judgment by the newspaper as to
where to place the advertisement rather than upon its commercial content. The
Commission made a finding of fact that Pittsburgh Press defers in every case to
the advertiser's wishes regarding the column in which a want ad should be
placed. It is nonetheless true, however, that the newspaper does make a
judgment whether or not to allow the advertiser to select the column. We must
therefore consider whether this degree of judgmental discretion by the
newspaper with respect to a purely commercial advertisement is
distinguishable, for the purposes of First Amendment analysis, from the content
of the advertisement itself. Or, to put the question differently, is the conduct of
the newspaper with respect to the employment want ad entitled to a protection
under the First Amendment which the Court held in Chrestensen was not
available to a commercial advertiser?

23

Under some circumstances, at least, a newspaper's editorial judgments in

connection with an advertisement take on the character of the advertisement
and, in those cases, the scope of the newspaper's First Amendment protection
may be affected by the content of the advertisement. In the context of a libelous
advertisement, for example, this Court has held that the First Amendment does
not shield a newspaper from punishment for libel when with actual malice it
publishes a falsely defamatory advertisement. New York Times Co. v. Sullivan,
supra, at 279280, 84 S.Ct., at 725726. Assuming the requisite state of
mind, then, nothing in a newspaper's editorial decision to accept an
advertisement changes the character of the falsely defamatory statements. The
newspaper may not defend a libel suit on the ground that the falsely defamatory
statements are not its own.

24

Similarly, a commercial advertisement remains commercial in the hands of the

media, at least under some circumstances.10 In Capital Broadcasting Co. v.
Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472
(1972), aff's 333 F.Supp. 582 (D.C.1971), this Court summarily affirmed a
district court decision sustaining the constitutionality of 15 U.S.C. 1335,
which prohibits the electronic media from carrying cigarette advertisements.
The District Court there found that the advertising should be treated as

commercial speech, even though the First Amendment challenge was mounted
by radio broadcasters rather than by advertisers. Because of the peculiar
characteristics of the electronic media, National Broadcasting Co. v. United
States, 319 U.S. 190, 226227, 63 S.Ct. 997, 1014, 87 L.Ed. 1344 (1943),
Capital Broadcasting is not dispositive here on the ultimate question of the
constitutionality of the Ordinance. Its significance lies, rather, in its recognition
that the exercise of this kind of editorial judgment does not necessarily strip
commercial advertising of its commercial character.11
25

As for the present case, we are not persuaded that either the decision to accept a
commercial advertisement which the advertiser directs to be placed in a sexdesignated column or the actual placement there lifts the newspaper's actions
from the category of commercial speech. By implication at least, an advertiser
whose want ad appears in the 'JobsMale Interest' column is likely to
discriminate against women in his hiring decisions. Nothing in a sex-designated
column heading sufficiently dissociates the designation from the want ads
placed beneath it to make the placement severable for First Amendment
purposes from the want ads themselves. The combination, which conveys
essentially the same message as an overtly discriminatory want ad, is in
practical effect an integrated commercial statement.

26

Pittsburgh Press goes on to argue that if this package of advertisement and

placement is commercial speech, then commercial speech should be accorded a
higher level of protection than Chrestensen and its progeny would suggest.
Insisting that the exchange of information is as important in the commercial
realm as in any other, the newspaper here would have us abrogate the
distinction between commercial and other speech.

27

Whatever the merits of this contention may be in other contexts, it is

unpersuasive in this case. Discrimination in employment is not only commercial
activity, it is illegal commercial activity under the Ordinance.12 We have no
doubt that a newspaper constitutionally could be forbidden to publish a want ad
proposing a sale of narcotics or soliciting prostitutes. Nor would the result be
different if the nature of the transaction were indicated by placement under
columns captioned 'Narcotics for Sale' and 'Prostitutes Wanted' rather than
stated within the four corners of the advertisement.

28

The illegality in this case may be less overt, but we see no difference in
principle here. Sex discrimination in nonexempt employment has been declared
illegal under s 8(a) of the Ordinance, a provision not challenged here. And
8(e) of the Ordinance forbids and employer, employment agency, or labor
union to publish or cause to be published any advertisement 'indicating' sex

discrimination. This, too, is unchallenged. Moreover, the Commission

specifically concluded that it is an unlawful employment practice for an
advertiser to cause an employment advertisement to be published in a sexdesignated column.
29

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 nonexempt
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.

IV
30

It is suggested, in the brief of an amicus curiae, that apart from other

considerations, the Commission's order should be condemned as a prior
restraint on expression.13 As described by Blackstone, the protection against
prior restraint at common law barred only a system of administrative
censorship:

31

'To subject the press to the restrictive power of a licenser, as was formerly
done, both before and since the revolution, . . . is to subject all freedom of
sentiment to the prejudices of one man, and make him the arbitrary and
infallible judge of all controverted points in learning, religion, and government.'
4 W. Blackstone, Commentaries *152.

32

While the Court boldly stepped beyond this narrow doctrine in Near v.
Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in striking down
an injunction against further publication of a newspaper found to be a public
nuisance, it has never held that all injunctions are impermissible. See Lorain
Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951).
The special vice of a prior restraint is that communication will be suppressed,
either directly or by inducing excessive caution in the speaker, before an
adequate determination that it is unprotected by the First Amendment.

33

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. Cf. New
York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822
(1971). Moreover, the order is clear and sweeps no more broadly than
necessary. And because no interim relief was granted, the order will not have
gone into effect before our final determination that the actions of Pittsburgh
Press were unprotected.14

V
34

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.

35

Affirmed.

APPENDIX TO OPINION OF THE COURT

36

37

Among the advertisements carried in the Sunday Pittsburgh Press on January 4,

1970, was the following one, submitted by an employment agency and placed
in the "JOBS--MALE INTEREST" column:
ACAD. INSTRUCTORS.................... $13,000
ACCOUNTANTS........................... 10,000
ADM. ASS'T, CPA....................... 15,000
ADVERTISING MGR....................... 10,000
BOOKKEEPER F-C......................... 9,000
FINANCIAL CONSULTANT.................. 12,000
MARKETING MANAGER..................... 15,000
MGMT. TRAINEE.......................... 8,400
OFFICE MGR. TRAINEE.................... 7,200
LAND DEVELOPMENT...................... 30,000
PRODUCT. MANAGER...................... 18,000
PERSONNEL MANAGER....................... OPEN
SALES-ADVERTISING...................... 8,400

SALES-CONSUMER......................... 9,600
SALES-INDUSTRIAL...................... 12,000
SALES-MACHINERY........................ 8,400
RETAIL MGR............................ 15,000
Most Positions Fee Paid
EMPLOYMENT SPECIALISTS
2248 Oliver Bldg. 261-2250
Employment Agency

App. 311a
On the same day, the agency's advertisement in the "JOBS--FEMALE INTEREST"
column was as follows:
ACAD. INSTRUCTORS........................ $13,000
ACCOUNTANTS................................ 6,000
AUTO-INS. UNDEWRITER........................ OPEN
BOOKKEEPER-INS............................. 5,000
CLERK-TYPIST............................... 4,200
DRAFTSMAN.................................. 6,000
KEYPUNCH D. T.............................. 6,720
KEYPUNCH BEGINNER.......................... 4,500
PROOFREADER................................ 4,900
RECEPTIONISTMature D. T.................... OPEN
EXEC. SEC.................................. 6,300
SECRETARY.................................. 4,800
SECRETARY, Equal Oppor..................... 6,000
SECRETARY D. T............................. 5,400
TEACHERS-Pt. Time......................... day 33.
TYPIST-Statistical......................... 5,000

38

Most Positions Fee Paid

EMPLOYMENT SPECIALISTS
2248 Oliver Bldg. 261-2250
Employment Agency
Ibid.
[Appendix continued on p. 393.]

39

Characteristic of those offering fuller job descriptions was the following

advertisement, carried in the "JOBS--MALE INTEREST" column:

STAFF MANAGEMENT TRAINEE

40 $12,000 If you have had background in the management of small business then
TO
this could be the stepping stone you have been waiting for. You will be your own
boss with no with no cash outlay. Call or write today.

App. 313a
41

Mr. Chief Justice BURGER, dissenting.

42

Despite the Court's efforts to decide only the narrow question presented in this
case, the holding represents, for me, a disturbing enlargement of the
'commercial speech' doctrine, Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct.
920, 86 L.Ed. 1262 (1942), and a serious encroachment on the freedom of press
guaranteed by the First Amendment. It also launches the courts on what I
perceive to be a treacherous path of defining what layout and organizational
decisions of newspapers are 'sufficiently associated' with the 'commercial' parts
of the papers as to be constitutionally unprotected and therefore subject to
governmental regulation. Assuming, arguendo, that the First Amendment
permits the States to place restrictions on the content of commercial
advertisements, I would not enlarge that power to reach the layout and
organizational decisions of a newspaper.

43

Pittsburgh Press claims to have decided to use sex-designated column headings

in the classified advertising section of its newspapers to facilitate the use of
classified ads by its readers. Not only is this purpose conveyed to the readers in
plain terms, but the newspaper also explicitly cautions readers against
interpreting the column headings as indicative of sex discrimination. Thus,
before each column heading the newspaper prints the following 'Notice to Job
Seekers':

44

'Jobs are arranged under Male and Female classifications for the convenience
of our readers. This is done because most jobs generally appeal more to persons
of one sex than the other. Various laws and ordinanceslocal, state and
federal, prohibit discrimination in employment because of sex unless sex is a
bona fide occupational requirement. Unless the advertisement itself specifies
one sex or the other, job seekers should assume that the advertiser will consider
applicants of either sex in compliance with the laws against discrimination.'

45

To my way of thinking, Pittsburg Press has clearly acted within its protected
journalistic discretion in adopting this arrangement of its classified
advertisements. Especially in light of the newspaper's 'Notice to Job Seekers,' it
is unrealistic for the Court to say, as it does, that the sex-designated column
headings are not 'sufficiently dissociate(d)' from the 'want ads placed beneath
(them) to make the placement severable for First Amendment purposes from
the want ads themselves.'1 Supra, at 388. In any event, I believe the First
Amendment freedom of press includes the right of a newspaper to arrange the

content of its paper, whether it be news items, editorials, or advertising, as it

sees fit.2 In the final analysis, the readers are the ultimate 'controllers' no matter
what excesses are indulged in by even a flamboyant or venal press; that if often
takes a long time for these influences to bear fruit is inherent in our system.
46

The Court's conclusion that the Commission's cease-and-desist order does not
constitute a prior restraint gives me little reassurance. That conclusion is
assertedly based on the view that the order affects only a 'continuing course of
repetitive conduct.' Supra, at 390. Even if that were correct, I would still
disagree since the Commission's order appears to be in effect an outstanding
injunction against certain publicationsthe essence of a prior restraint. In any
event, my understanding of the effects of the Commission's order differs from
that of the Court. As noted in the Court's opinion, the Commonwealth Court
narrowed the injunction to permit Pittsburgh Press to use sex-designated
column headings for want-ads dealing with jobs exempt under the Ordinance.
The Ordinance does not apply, for example,

47

'to employers of fewer than five persons, to employers outside the city of
Pittsburgh, or to religious, fraternal, charitable or sectarian organizations, nor
does it apply to employment in domestic service or in jobs for which the
Commission has certified a bona fide occupational exception.' Supra, at 380.

48

If Pittsburgh Press chooses to continue using its column headings for

advertisements submitted for publication by exempted employers, it may well
face difficult legal questions in deciding whether a particular employer is or is
not subject to the Ordinance. If it makes the wrong decision and includes a
covered advertisement under a sex-designated column heading, it runs the risk
of being held in summary contempt for violating the terms of the order.3

49

In practical effect, therefore, the Commission's order in this area may have the
same inhibiting effect as the injunction in Near v. Minnesota, 283 U.S. 697, 51
S.Ct. 625, 75 L.Ed. 1357 (1931), which permanently enjoined the publishers of
a newspaper from printing a 'malicious, scandalous or defamatory newspaper,
as defined by law.' Id., at 706, 51 S.Ct., at 627. We struck down the injunction
in Near as a prior restraint. In 1971, we reaffirmed the principle of presumptive
unconstitutionality of prior restraint in Organization for a Better Austin v.
Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Indeed, in New York
Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822
(1971), every member of the Court, tacitly or explicitly, accepted the Near and
Keefe condemnation of prior restraint as presumptively unconstitutional. In this
case, the respondents have, in my view, failed to carry their burden. I would
therefore hold the Commission's order to be impermissible prior restraint. At

the very least, we ought to make clear that a newspaper may not be subject to
summary punishment for contempt for having made an 'unlucky' legal guess on
a particular advertisement or for having failed to secure advance Commission
approval of a decision to run an advertisement under a sex-designated column.
50

Mr. Justice DOUGLAS, dissenting.

51

While I join the dissent of Mr. Justice STEWART, I add a few words. As he
says, the press, like any other business, can be regulated on business and
economic matters. Our leading case on that score is Associated Press v. United
States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013, which holds that a newsgathering agency may be made accountable for violations of the antitrust laws.
By like token, a newspaper, periodical, or TV or radio broadcaster may be
subjected to labor relations laws. And that regulation could constitutionally
extend to the imposition of penalties or other sanctions if any unit of the press
violated laws that barred discrimination in employment based on race or
religion or sex.

52

Pennsylvania has a regulatory regime designed to eliminate discrimination in

employment based on sex; and the commission in charge of that program issues
cease-and-desist orders against violators. There is no doubt that Pittsburgh
Press would have no constitutional defense against such a cease-and-desist
order issued against it for discriminatory employment practices.

53

But I believe that Pittsburgh Press by reason of the First Amendment may
publish what it pleases about any law without censorship or restraint by
Government. The First Amendment does not require the press to reflect any
ideological or political creed reflecting the dominant philosophy, whether
transient or fixed. It may use its pages and facilities to denounce a law and urge
its repeal or, at the other extreme, denounce those who do not respect its letter
and spirit.

54

Commercial matter, as distinguished from news, was held in Valentine v.

Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, not to be subject to First
Amendment protection. My views on that issue have changed since 1942, the
year Valentine was decided. As I have stated on earlier occasions, I believe that
commercial materials also have First Amendment protection. If Empire
Industries Ltd., doing business in Pennsylvania, wanted to run full-page
advertisements denouncing or criticizing this Pennsylvania law, I see no way in
which Pittsburgh Press could be censored or punished for running the ad, any
more than a person could be punished for uttering the contents of the ad in a

public address in Independence Hall. The pros and cons of legislative

enactments are clearly discussion or dialogue that is highly honored in our First
Amendment traditions.
55

The want ads which gave rise to the present litigation express the preference of
one employer for the kind of help he needs. If he carried through to hiring and
firing employees on the basis of those preferences, the state commission might
issue a remedial order against him, if discrimination in employment was shown.
Yet he could denounce that action with impunity and Pittsburgh Press could
publish his denunciation or write an editorial taking his side also with impunity.

56

Where there is a valid law, the Government can enforce it. But there can be no
valid law censoring the press or punishing it for publishing its views or the
views of subscribers or customers who express their ideas in letters to the editor
or in want ads or other commercial space. There comes a time, of course, when
speech and action are so closely brigaded that they are really one. False
shouting 'fire' in a theater, the example given by Mr. Justice Holmes, Schenck
v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, is one
example. Giboney v. Empire Storage Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed.
834, written by Mr. Justice Black, is another. There are here, however, no such
unusual circumstances.

57

As Mr. Justice STEWART says, we have witnessed a growing tendency to cut

down the literal requirements of First Amendment freedoms so that those in
power can squelch someone out of step. Historically, the miscreant has usually
been an unpopular minority. Today it is a newspaper that does not bow to the
spreading bureaucracy that promises to engulf us. It may be that we have
become so stereotyped as to have earned that fate. But the First Amendment
presupposes free-wheeling, independent people whose vagaries include ideas
spread across the entire spectrum of thoughts and beliefs.* I would let any
expression in that broad spectrum flourish, unrestrained by Government, unless
it was an integral part of actionthe only point which in the Jeffersonian
philosophy marks the permissible point of governmental intrusion.

58

I therefore dissent from affirmance of this judgment.

59

Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, dissenting.

60

I have no doubt that it is within the police power of the city of Pittsburgh to
prohibit discrimination in private employment on the basis of race, color,
religion, ancestry, national origin, place of birth, or sex. I do not doubt, either,

that in enforcing such a policy the city may prohibit employers from indicating
any such discrimination when they make known the availability of employment
opportunities. But neither of those propositions resolves the question before us
in this case.
61

That question, to put it simply, is whether any government agencylocal, state,

or federalcan tell a newspaper in advance what it can print and what it cannot.
Under the First and Fourteenth Amendments I think no government agency in
this Nation has any such power.1

62

It is true, of course, as the Court points out, that the publisher of a newspaper is
amenable to civil and criminal laws of general applicability. For example, a
newspaper publisher is subject to nondiscriminatory general taxation,2 and to
restrictions imposed by the National Labor Relations Act,3 the Fair Labor
Standards Act,4 and the Sherman Act. 5 In short, as businessman or employer, a
newspaper publisher is not exempt from laws affecting businessmen and
employers generally. Accordingly, I assume that the Pittsburgh Press Co., as an
employer, can be and is completely within the coverage of the Human
Relations Ordinance of the city of Pittsburgh.

63

But what the Court approves today is wholly different. It approves a

government order dictating to a publisher in advance how he must arrange the
layout of pages in his newspaper.

64

Nothing in Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262
remotely supports the Court's decision. That case involved the validity of a
local sanitary ordinance that prohibited the distribution in the streets of
'commercial and business advertising matter.' The Court held that the ordinance
could be applied to the owner of a commercial tourist attraction who wanted to
drum up trade by passing out handbills in the streets. The Court said it was
'clear that the Constitution imposes no such restraint on government as respects
purely commercial advertising. Whether, and to what extent, one may promote
or pursue a gainful occupation in the streets, to what extent such activity shall
be adjudged a derogation of the public right of user, are matters for legislative
judgment.' Id., at 54, 62 S.Ct., at 921. Whatever validity the Chrestensen case
may still retain when limited to its own facts,6 it certainly does not stand for the
proposition hat the advertising pages of a newspaper are outside the protection
given the newspaper by the First and Fourteenth Amendments. Any possible
doubt on that score was surely laid to rest in New York Times Co. v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.7

65

So far as I know, this is the first case in this or any other American court that

65

So far as I know, this is the first case in this or any other American court that
permits a government agency to enter a composing room of a newspaper and
dictate to the publisher the layout and makeup of the newspaper's pages. This is
the first such case, but I fear it may not be the last. The camel's nose is in the
tent. 'It may be that it is the obnoxious thing in its mildest and least repulsive
form; but illegitimate and unconstitutional practices get their first footing in
that way. . ..' Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 535, 29
L.Ed. 746.

66

So long as Members of this Court view the First Amendment as no more than a
set of 'values' to be balanced against other 'values,' that Amendment will remain
in grave jeopardy. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct.
2628, 37 L.Ed. 446 (First and Fourteenth Amendment protections outweighed
by public interest in 'quality of life,' 'total community environment,' 'tone of
commerce,' 'public safety'); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646,
33 L.Ed.2d 626 (First Amendment claim asserted by newsman to maintain
confidential relationship with his sources outweighed by obligation to give
information to grand jury); New York Times Co. v. United States, 403 U.S.
713, 748, 91 S.Ct. 2140, 2158, 29 L.Ed.2d 822 (Burger, C.J., dissenting) (First
Amendment outweighed by judicial problems caused by 'unseemly haste');
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412
U.S. 94, 99, 93 S.Ct. 2080, 2131, 36 L.Ed.2d 772 (Brennan, J., dissenting)
(balancing of 'the competing First Amendment interests').

67

It is said that the goal of the Pittsburgh ordinance is a laudable one, and so
indeed it is. But, in the words of Mr. Justice Brandeis, 'Experience should teach
us to be most on our guard to protect liberty when the government's purposes
are beneficent. Men born to freedom are naturally alert to repel invasion of their
liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious
encroachment by men of zeal, well-meaning but without understanding.'
Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572, 72 L.Ed. 944
(dissenting opinion). And, as Mr. Justice Black once pointed out, 'The motives
behind the state law may have been to do good. But . . . (h) istory indicates that
urges to do good have led to the burning of books and even to the burning of
'witches." Beauharnais v. Illinois, 343 U.S. 250, 274, 72 S.Ct. 725, 739, 96
L.Ed. 919 (dissenting opinion).

68

The Court today holds that a government agency can force a newspaper
publisher to print his classified advertising pages in a certain way in order to
carry out governmental policy. After this decision, I see no reason why
government cannot force a newspaper publisher to conform in the same way in
order to achieve other goals thought socially desirable. And if government can
dictate the layout of a newspaper's classified advertising pages today, what is

there to prevent it from dictating the layout of the news pages tomorrow?
69

Those who think the First Amendment can and should be subordinated to other
socially desirable interests will hail today's decision. But I find it frightening.
For I believe the constitutional guarantee of a free press is more than recatory. I
believe it is a clear command that government must never be allowed to lay its
heavy editorial hand on any newspaper in this country.

70

Mr. Justice BLACKMUN, dissenting.

71

I dissent substantially for the reasons stated by Mr. Justice STEWART in his
opinion. But I do not subscribe to the statements contained in that paragraph of
his opinion which constitutes the second full paragraph on page 2567, supra.

For the full text of the Ordinance and the 1969 amendment adding sex to the
list of proscribed classifications, see App. 410a436a.

These exhibits are reproduced in App. 299a333a.

For examples of these want ads, see the Appendix to this opinion, infra, at 392
393.

The full text of the Commission's Decision and Order is set forth in the
Appendix to the Petition for Certiorari, at 1a 18a.

The Commission specifically found that:

'5. The Pittsburgh Press permits the advertiser to select the column within
which its advertisement is to be inserted.
'6. When an advertiser does not indicate a column, the Press asks the advertiser
whether it wants a male or female for the job and then inserts the advertisement
in the jobsmale interest or jobsfemale interest column accordingly.' Id., at
16a.

See id., at 19a.

Pittsburgh Press also argues that the Ordinance violates due process in that
there is no rational connection between sex-designated column headings and
sex discrimination in employment. It draws attention to a disclaimer which it
runs at the beginning of each of the 'JobsMale Interest' and 'JobsFemale

Interest' columns:
'Notice to Job Seekers'
'Jobs are arranged under Male and Female classifications for the convenience
of our readers. This is done because most jobs generally appeal more to persons
of one sex than the other. Various laws and ordinanceslocal, state, and
federal, prohibit discrimination in employment because of sex unless sex is a
bona fide occupational requirement. Unless the advertisement itself specifies
one sex or the other, job seekers should assume that the advertiser will consider
applicants of either sex in compliance with the laws against discrimination.'
It suffices to dispose of this contention by noting that the Commission's
commonsense recognition that the two are connected is supported by evidence
in the present record. See App. 236a239a. See also Hailes v. United Air
Lines, 464 F.2d 1006, 1009 (CA5 1972). The Guidelines on Discrimination
Because of Sex of the Federal Equal Employment Opportunity Commission
reflect a similar conclusion. See 29 CFR 1604.4.
8

See also Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943);
Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943).

In response to questioning at oral argument, counsel for Pittsburgh Press stated

only:
'Now, I'm not prepared to answer whether the company makes money on (want
ads) or not. I suspect it does. They charge for want-ads, and they do make a lot
of their revenue in the newspaper through advertising, of course; and I suspect
it is profitable.' Tr. of Oral Arg. 10.

10

In Head v. New Mexico Board, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983
(1963), this Court upheld an injunction prohibiting a newspaper and a radio
station from carrying optometrists' advertisements which violated New Mexico
law. But because the issue had not been raised in the lower courts, this Ocurt
did not consider the appellant's First Amendment challenge. Id., at 432 n. 12, 83
S.Ct., at 1764.

11

See also New York State Broadcasters Assn. v. United States, 414 F.2d 990
(CA2 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970)
(refusing to strike down a ban on broadcasts promoting a lottery).

12

See Note, Freedom of Expression in a Commercial Context, 78 Harv.L.Rev.

1191, 11951196 (1965). Cf. Capital Broadcasting Co. v. Mitchell, 333
F.Supp. 582, 593 n. 42 (D.C.1971) (Wright, J., dissenting); Camp-of-the-Pines,

Inc. v. New York Times Co., 184 Misc. 389, 53 N.Y.S.2d 475 (1945).
13

Brief for Amicus Curiae American Newspaper Publishers Association 22 n. 32.

14

The dissent of THE CHIEF JUSTICE argues that Pittsburgh Press is in danger
of being 'subject to summary punishment for contempt for having made an
'unlucky' legal guess.' Infra, at 396 397. The Commission is without power to
punish summarily for contempt. When it concludes that its order has been
violated, 'the Commission shall certify the case and the entire record of its
proceedings to the City Solicitor, who shall invoke the aid of an appropriate
court to secure enforcement or compliance with the order or to impose (a fine of
not more than $300) or both.' 14 of the Ordinance; Appendix to Pet. for Cort.
103a. But, more fundamentally, it was the newspaper's policy of allowing
employers to place advertisements in sex-designated columns without regard to
the exceptions of exemptions contained in the Ordinance, not its treatment of
particular want ads, which was challenged in the complaint and was found by
the Commission and the courts below to be violative of the Ordinance. Nothing
in the modified order or the opinions below prohibits the newspaper from
relying in good faith on the representation of an advertiser that a particular job
falls within an exception to the Ordinance.

The Court and the opinions under review place great stress on the finding of the
Pittsburgh Commission on Human Relations that the Pittsburgh Press 'permits
the advertiser to select the column within which its advertisement is to be
inserted.' That finding, however, does not disprove Pittsburgh Press' claim that
it uses column headings for the convenience of its readers. In any event, the
order under review, as the Court acknowledges, 'does not allow Pittsburgh
Press to substitute a policy under which it would make an independent decision
regarding placement in sex-designated columns.' Supra, at 384. Thus, even if
the newspaper became actively involved in selecting the appropriate column
for each advertisement, presumably the Commission's order would still prohibit
Pittsburgh Press from using the column headings.

There would be time enough to consider whether this principle would apply to
the situation hypothesized by the Court, for example, whether a newspaper
gives 'notice' of narcotics transactions by placing certain advertisements under a
'Narcotics for Sale' caption. For now, I need only state that the two situations
strike me as being entirely different. We do not have here, in short, such a
blatant involvement by a newspaper in a criminal transaction.

The Court's statement that the 'Commission is without power to punish

summarily for contempt,' supra, at 390 n. 14, is hardly reassuring to me in a
First Amendment setting. We are still left with no assurance that an

enforcement action initiated at the request of the commission will not be

summary in nature. It is helpful that the Court expresses a caveat on this score.
However, the weighty presumption of unconstitutionality of prior restraint of
the press seems to be given less regard than we have traditionally accorded it.
*

As Alexander Meiklejohn has stated: 'The First Amendment was not written
primarily for the protection of those intellectual aristocrats who pursue
knowledge solely for the fun of the game, whose search for truth expresses
nothing more than a private intellectual curiosity or an equally private delight
and pride in mental achievement. It was written to clear the way for thinking
which serves the general welfare. It offers defense to men who plan and
advocate and incite toward corporate action for the common good. On behalf of
such men it tells us that every plan of action must have a hearing, every
relevant idea of fact or value must have full consideration, whatever may be the
dangers which that activity involves. It makes no difference whether a man is
advocating conscription or opposing it, speaking in favor of a war or against it,
defending democracy or attacking it, planning a communist reconstruction of
our economy or criticising it. So long as his active words are those of
participation in public discussion and public decision of matters of public
policy, the freedom of those words may not be abridged. That freedom is the
basic postulate of a society which is governed by the votes of its citizens.' Free
Speech and Its Relation to Self-Government 4546 (1948).

I put to one side the question of governmental power to prevent publication of

information that would clearly imperil the military defense of our Nation, e.g.,
'the publication of the sailing dates of transports or the number and location of
troops.' Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed.
1357.

See Grosjean V. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80
L.Ed. 660; Murdock v. Pennsylvania, 319 U.S. 105, 112, 63 S.Ct. 870, 874, 87
L.Ed. 1292.

See Associated Press v. NLRB, 301 U.S. 103, 132133, 57 S.Ct. 650, 655
656, 81 L.Ed. 953.

See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192193, 66
S.Ct. 494, 497, 90 L.Ed. 614; Mabee v. White Plains Publishing Co., 327 U.S.
178, 66 S.Ct. 511, 90 L.Ed. 607.

See Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed.
2013; Lorain Journal Co. v. United States, 342 U.S. 143, 155157, 72 S.Ct.
181, 187188, 96 L.Ed. 162; Citizen Publishing Co. v. United States, 394 U.S.
131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148.

Mr. Justice Douglas has said that '(t)he (Chrestensen) ruling was casual, almost
offhand. And it has not survived reflection.' Cammarano v. United States, 358
U.S. 498, 514, 79 S.Ct. 524, 534, 3 L.Ed.2d 462 (concurring opinion).

The Court acknowledges, as it must, that what it approves today is not a

restriction on a purely commercial advertisement but the editorial judgment of
the newspaper, for 'the newspaper does make a judgment whether or not to
allow the advertiser to select the column.' Supra, at 386. The effect of the local
ordinance and the court order is to affect the makeup of the help-wanted section
of the newspaper, and to preclude Pittsburgh Press from placing advertisements
in sex-designated columns. The Court justifies this restriction on the
newspaper's editorial judgment by arguing that it had taken on the 'character of
the advertisement' so that the combination conveyed 'an integrated commercial
statement.' But the stark fact remains that the restriction here was placed on the
editorial judgment of the newspaper, not the advertisement.