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697

Mature Person Preferred: The CircuitSplit on the Ordinary Reader Standard

for Advertisements in Violation of theFair Housing Act

HEATHER G.REID

ABSTRACT

A FAMILY SIZE OF 2 PEPOLE [sic] ONLY!!!!!!!! WE MUSTHAVE A WORKING COUPLE WITH 2 INCOMES

NORTHLAKE deluxe 1 BR apt, a/c, newer quiet bldg, pool,prkg, mature person preferred, credit checked. $395

599/1brGreat Bachelor Pad! (Centerville). Our one bedroomapartments are a great bachelor pad for any single man lookingto hook up

These housing advertisements are not facially discriminatory nor dothey indicate subjective intent to discriminate, but all violate

3604(c) of the Fair Housing Act.

The Fair Housing Act, enacted in 1968, prohibits discriminatoryhousing practices by making it unlawful to refuse to sell or rent . . . or

refuse to negotiate for the sale or rental of . . . a dwelling based on apersons race, color, religion, sex, familial status, or national origin.Thelaw was intended to eliminate the pervasive problem of housingdiscrimination, as well as promote integrated housing.

Litigation under 3604(c) has addressed such questions as: whichpersons and entities have standing to sue; whether persons or entitiesexempt under other sections of the FHA are nonetheless liable undersubsection (c) for discriminatory statements, notices, or advertisements;and whether the statute is limited to sellers, lessors, and their agents, or

Juris Doctor, magna cum laude, New England Law | Boston (2015). B.A., Art History &

Studio Art, Boston College (2007). Thank you to my incredibly supportive parents and to my

dog Zoeeven though you didnt understand anything I read to you and provided no

feedback, you are still a top notch writing partner.


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698 New England Law Review v. 49 | 697

includes newspapers and other publishing media. In contrast to the varietyof decisions on the complex issue of standing, for example, casesemploying the ordinary reader standard have not stretch[ed] the

understanding of 3604(c)s basic applicability to discriminatoryadvertising beyond the standards first application in United States v.Hunter.

This Note argues that the proper ordinary reader standard applied ininterpreting violations of 3604(c) omits the discourage languageemployed by the Second and Seventh Circuits. A standard that considersonly whether an ordinary reader would find an ad indicates apreferencebased on one of the statutes prohibited factors adheres to thelegislative intent and plain meaning of 3604(c) without extendingbeyond its constitutional constraints. Additionally, this Note examines thetension between online housing websites and 3604(c) s advertisingprohibitions and argues that a standard absent the discouragelanguage

is best equipped to evaluate online advertisements.

INTRODUCTION

FAMILY SIZE OF 2 PEPOLE [sic] ONLY!!!!!!!! WE MUSTHAVE A WORKING COUPLE WITH 2 INCOMES;1Christian landlord is living in one of the units;2599/1br

Great Bachelor Pad! (Centerville). Our one bedroom apartments are a greatbachelor pad for any single man looking to hook up3; NORTHLAKEdeluxe 1 BR apt, a/c, newer quiet bldg, pool, prkg, mature personpreferred, credit checked. $3954these housing advertisements are notfacially discriminatory, nor do they indicate a subjective intent todiscriminate, but all violate 3604(c) of the Fair Housing Act.5

1 Commn on Human Rights v. Jenkins, OATH Index No. 2331/13, 56, 9 (Dec. 18, 2013),

http://archive.citylaw.org/oath/10_Cases/13-2331.pdf; Yoav Gonen & Beth DeFalco, Broker Gets

$20K Fine for Posted Ad for Dual Income, No Kids Tenants, N.Y.POST(Feb. 18, 2014, 2:03 AM),

http://nypost.com/2014/02/18/broker-gets-20k-fine-for-posted-ad-for-dual-income-no-kids-

tenants/.2 NAT'L FAIR HOUS. ALLIANCE, FOR RENT: NO KIDS! HOW INTERNET HOUSING

ADVERTISEMENTS PERPETUATE DISCRIMINATION 1516 (2009), available at

http://www.nationalfairhousing.org/LinkClick.aspx?fileticket=zgbukJP2rMM%3D.3 Miami Valley Fair Hous. Ctr. Inc. v. Connor Grp., 725 F.3d 571, 575 (6th Cir. 2013).4Jancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 554 (7th Cir. 1995) (discussing the

housing advertised, the Second Circuit noted that while all of the apartments in Janciks

housing complex had only one bedroom, under the local building codes the dwellings wereable to accommodate more than one occupant).

5 See 42 U.S.C. 3604(c) (2006); see, e.g.,MiamiValley, 725 F.3d at 577 ([S]ubjective intent to

A


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2015 Mature Person Pre f er red 699

The Fair Housing Act (FHA), enacted in 1968, prohibitsdiscriminatory housing practices by making it unlawful to refuse to sell orrent . . . or to refuse to negotiate for the sale or rental of . . . a dwelling

based on a persons race, color, religion, sex, familial status, or nationalorigin.6The law intended to eliminate the pervasive problem of housingdiscrimination, as well as promote integrated housing.7

Section 3604(c) of the FHA contributes to the eradication of housingdiscrimination by prohibiting discriminatory advertising practices.8 Thestatute applies to the sale or rental of housing and to all publishingmediums, including newspapers.9Specifically, it prohibits the printing orpublishing of statements and advertisements for the sale or rental ofhousing that indicate any preference, limitation, or discrimination basedon race, color, religion, sex, handicap, familial status, or national origin. 10For advertisements that are not facially discriminatory or do not have aclear subjective intent to discriminate, but rather are alleged to indicatea

preference,the circuit courts apply what has been termed the ordinaryreaderstandard.11

Litigation under 3604(c) has addressed such questions as: whichpersons and entities have standing to sue;12 whether persons or entitiesexempt under other sections of the FHA are nonetheless liable undersubsection (c) for discriminatory statements, notices, or advertisements;13and whether the statute is limited to sellers, lessors, and their agents, or

discriminate is not required to establish a violation of 3604(c).).6 42 U.S.C. 360119 (2006).7

Hous. Opportunities Made Equal, Inc. v. Cincinatti Enq., Inc., 943 F.2d 644, 652 (6th Cir.1991).8 42 U.S.C. 3604(c).9 See United States v. Hunter, 459 F.2d 205, 20910 (4th Cir. 1972); see also Kevin M.

Wilemon, Note, The Fair Housing Act, the Communications Decency Act, and the Right of

Roommate Seekers to Discriminate Online, 29 WASH.U.J.L.&POLY 375,37980 (2009).10 42 U.S.C. 3604(c).11 Ragin v. New York Times Co., 923 F.2d 995, 9991000 (2d Cir. 1991); accordMiami Valley

Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013).12 William H. Danne Jr., Validity, Construction, and Application of 804(c) of Civil Rights Act of

1968 (Fair Housing Act) (42 U.S.C.A. 3604(c)) Prohibiting Discriminatory Notice, Statement, or

Advertisement With Respect to Sale or Rental of Dwelling, 142 A.L.R. FED.1 2(a) (1997).13 See, e.g., Hunter, 459 F.2d at 213 (rejecting Hunters contention that Mrs. Murphy

landlords were entitled to communicate their intent to discriminate in commercial advertising

and holding that neither the FHA nor Constitution gave him this right to discriminate). But cf.

42 U.S.C. 3607(b) (creating a limited exemption from 3604(c) for housing intended and

operated for occupancy by older persons).


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includes newspapers and other publishing media.14 In contrast to thevariety of decisions on the complex issue of standing for example, 15 casesemploying the ordinary reader standard have not stretch[ed] the

understanding of 3604(c)s basic applicability to discriminatoryadvertising beyond the standards first application in United States v.Hunter.16Specifically, the human-models cases (Ragin v. New York TimesCo. and a series of other cases which challeng[ed] the exclusive use ofwhite human models in real estate ads17) defined the standards forassessing this type of advertising, but also reinforced the concept that theindicates language in 3604(c) did not require a showing ofdiscriminatory intent to be in violation of that provision.18Yet, the ordinaryreader standard articulated in Hunterremained ostensibly unaltered.19

The ordinary reader standard is not a mechanical test, but rather a

14

Danne,supranote12, 20 (The courts have consistently recognized that 42 U.S.C.A. 3604(c) was intended to apply to newspapers and other publishing media which print

discriminatory housing advertisements at the request of housing sellers or lessors, or their

agents.). But seeMich. Prot. & Advocacy Serv., Inc. v. Babin, 799 F. Supp. 695, 716 (E.D. Mich.

1992), affd, 18 F.3d 337 (6th Cir. 1994) (holding to interpret the with respect to the sale or

rental of a dwelling language of 3604(c) narrowly, applying only to discriminatory

statements made by the owner or his agent,therefore the statute did not apply to neighbors

distributing discriminatory documents).15 See generally Ragin v. Harry Maclowe Real Estate Co., 6 F.3d 898, 904 (2d Cir. 1993)

(holding that a reader not seeking housing and not deterred from seeking housing had

standing to bring a claim under 3604(c)); Saunders v. Gen. Serv. Corp., 659 F. Supp 1042,

105253 (E.D. Va. 1987) (holding that a non-profit organization promoting equal housing

opportunity had not established representational standing, because the organization failed to

show any of its members had seen the advertising brochure at issue).

16 Robert G. Schwemm, Discriminatory Housing Statements and 3604(c): A New Look at theFair Housing Acts Most Intriguing Provision, 29 FORDHAM URB.L.J.187,222(2001).

17 Id.18 Id. at 22223; see, e.g., Ragin v. New York Times Co., 923 F.2d 995, 1000 (2d Cir. 1991)

([T]he statute prohibits all ads that indicate a racial preference to an ordinary reader

whatever the advertisers intent.); Hous. Opportunities Made Equal, Inc. v. Cincinnati

Enquirer, Inc., 943 F.2d 644, 646 (6th Cir. 1991) (holding that a violation of section 3604(c)

[can be established] by proving either an actual intent . . . to discriminate or by proving . . .

[the ads indicate] a racial preference) (internal quotations omitted). The principal reported

decisions spanned a ten-year period, beginning in 1987 with Saunders v. General Service Corp.,

649 F. Supp. 1042 (E.D. Va. 1987), and ending in 1996 with Tyus v. Urban Search Management,

102 F.3d 256 (7th Cir. 1996). Schwemm, supra note16, at 222n.155.19 See, e.g., Spann v. Colonial Village, Inc., 899 F.2d 24, 29 (D.C. Cir. 1990) (adopting

Hunters standard, which entails that a defendant will be found to have violated the FHA

provision if it can be established that to a reasonable reader the natural interpretation of

defendants advertisements . . . is that they indicate a racial preference or an intention to make

such a preference) (internal quotations omitted).


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standard that asks whether an objective ordinary reader would understandan advertisement to suggest a preference for or against a protected group.20Both the Second and Seventh Circuits read the word preference,as it is

used in 3604(c), to describe any ad that would discourage an ordinaryreader of a particular [protected group] from answering it.21 In contrast,the Sixth Circuit expressly declined to follow the Second and SeventhCircuits interpretation, asserting that discourage was not synonymouswith preferenceand there was no textual support in 3604(c) for readingthat language into the ordinary reader standard.22

This Note argues that the proper ordinary reader standard to beapplied in interpreting violations of 3604(c) is one which omits thediscourage language employed by the Second and Seventh Circuits. Astandard that considers onlywhether an ordinary reader would find an adindicatesa preferencebased on one of the statute s prohibited factorsadheres to the legislative intent and plain meaning of 3604(c), without

extending beyond its constitutional constraints. Additionally, this Noteexamines the tension between online housing websites and 3604(c)sadvertising prohibitions and argues that a standard absent thediscouragelanguage is best equipped to evaluate online advertisements.

Part I of this Note provides an overview of the Fair Housing Act,specifically focusing on 3604(c)s prohibition of advertising that indicatesa preference based on one of the prohibited factors. Part II discusses thedevelopment of the ordinary reader standard and the current circuit splitbetween the Sixth Circuit and the Second and Seventh Circuits. Part IIIargues that the Sixth Circuits understanding of the ordinary readerstandard is more suitable for determining violations of the FHA because itadheres to both the legislative intent and plain meaning of the statute, andfurther, avoids an overly broad restriction on free speech. Part IV discussesonline advertisements for housing and argues that the discouragelanguage in the Second and Seventh Circuitsordinary reader standard isunworkable in the online context.

I. Background: The Fair Housing Act

A. The Fair Housing Act

The Fair Housing Act, enacted in 1968 as Title VIII of the Civil Rights

20 SeeRagin, 923 F.2d at 100102.

21Jancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995); accordRagin, 923F.2d at 9991000.

22 Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 57778 (6th Cir. 2013).


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Act, prohibits discrimination in housing.23Under the Act, it is unlawful to:refuse to sell or rent after the making of a bona fide offer, or to refuse tonegotiate for the sale or rental of, or otherwise make unavailable or deny, a

dwelling to any person because of race, color, religion, sex, familial status,or national origin.24

At the passing of the Civil Rights Act in 1964, housing discriminationpervaded the country as one of the most deeply entrenched aspects ofracial subordination.25 Housing discrimination dramatically limited oreliminated minorities access to housing in predominantly white areas; italso took form in post-move discrimination26 and was the mostubiquitous, deeply rooted civil rights problem in the nation.27

The fair housing movement developed in the 1940s and became moreactive in the post-war period.28 By the 1960s most states had enactedsome form of legislation prohibiting housing discrimination.29 Long-overdue federal legislation followed with the Fair Housing Act of 1968.30

The Act was amended in 1974 to include sex31

and in 1988 to includefamilial statuswithin the list of prohibited bases of discrimination.32

23 42 U.S.C. 360119 (2012).24 Id. 3604(a). Section 3604 also prohibits the discrimination against any person because

of race, color, religion, sex, familial status, or national ori gin in regards to the terms,

conditions, or privileges of sale or rental of a dwelling, or in the provision of services or

facilities in connection therewith. Id. 3604(b).25 Leonard S. Rubinowitz with Ismail Alsheik, A Missing Piece: Fair Housing and the 1964

Civil Rights Act, 48 HOW.L.J.841, 841, 84546 (2005).26 Id.at 846 (defining Post-move discrimination as discrimination against minorities after

they have moved into predominantly white areasthrough methods up to and including

violence to persons and property).27 Id.at 846 & n.25 (quoting Steven R. Goldzwig, LBJ, the Rhetoric of Transcendence, and the

Civil Rights Act of 1968, 6 RHETORIC &PUB.AFF.No. 1, 2003, at 25, 26 (2003)) (discussing the

determination by the U.S. Commission on Civil Rights in 1963). The costs of housing

discrimination were obvious: Blacks paid more than whites for equivalent housing, and were

forced into overcrowded and inadequate housing, with associated threats to their health and

well-being. Id.at 847.28 Id.29 Id.30 SeeFair Housing Act, Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as 42 U.S.C. 3601

19 (2006)).31 SeeHousing and Community Development Act of 1974, Pub. L. No. 93-383, 88 Stat. 633

(1974); J. Andrew Crossett, Unfair Housing on the Internet: the Effect of the Communications

Decency Act on the Fair Housing Act, 73 MO.L.REV.195, 19697 (2008).

32 Shelley D. Cutts, The Fair Housing Amendments Act of 1988: An Incomplete Solution to the

Problem of Housing Discrimination Against Families, 30 ARIZ.ST.L.J. 205, 207 (1998); see42 U.S.C.

3604.


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1. Section 3604(c) of the Fair Housing Act

Section 3604(c) of the Fair Housing Act prohibits discriminatorynotices, statements, and advertising.33The statute makes it unlawful to:

make, print, or publish, or cause to be made, printed, orpublished any notice, statement, or advertisement, with respectto the sale or rental of a dwelling that indicates any preference,limitation, or discrimination based on race, color, religion, sex,handicap, familial status, or national origin, or an intention tomake any such preference, limitation, or discrimination.34

The prohibition on discriminatory advertisements for the sale or rentalof housing applies to all publishing mediums, including newspapers. 35Congresss particular concern for discriminatory housing statements isevident in its decision to exclude 3604(c) from the Fair Housing Actstraditional exemptions.36 Thus, all discriminatory statements, includingthose made by small housing providers and Mrs. Murphy-type37landlords,

are barred.38A violation of 3604(c) is established by proving four elements: 1) a

defendant must . . . make, print, or publish, or cause to be made, printed,or publisheda barred statement or advertisement; 2) the defendants actmust involve a notice, statement, or advertisement;3) with respect tothe sale or rental of a dwelling; and 4) that notice, statement, or

33 42 U.S.C. 3604(c).34 Id.35 SeeUnited States v. Hunter, 459 F.2d 205, 20910 (4th Cir. 1972).36 Schwemm, supra note 16, at 191. The FHA exempts apartment buildings with four or

fewer units where the owner resides (Mrs. Murphy exemptions) and single-family homeswhich are sold or rented by the owner from all 3604 provisions except subsection (c). 42

U.S.C. 3603(b)(1)(2). Therefore, exempted housing providers are permitted to engage in

discriminatory housing practices so long as they do not announce or state that they are doing

so. Schwemm, supranote16,at192.37 Mrs. Murphy refers to 3603(b)(2) of the FHA that exempts dwellings intended to be

occupied by four or fewer families from the prohibitions of 3604, other than 3604(c), if the

owner lives in one of the units. James D. Walsh, Reaching Mrs. Murphy: A Call for Repeal of the

Mrs. Murphy Exemption to the Fair Housing, 34 HARV.C.R.-C.LL.REV.605,605 (1999). The term

developed during the 1963 senatorial debates over the Mrs. Murphy Boardinghouse

exemption to Title II of the Civil Rights Act. Id. at 60708. The image of an ancient widow

operating a three or four room tourist home who would, by force of the bill, be required to

accommodate transients without regard to race, id. at 608 (citing Harry T. Quick, Public

Accommodations: A Justification of Title II of the Civil Rights Act of 1964, 16 W.RES.L.REV. 660,

672 (1965)) (internal quotations omitted), became the symbol for proponents of the exemption.Id. at 609.

38 Schwemm, supranote16,at192.


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advertisement must indicate [a] preference, limitation, or discriminationor an intention to make [a] preference, limitation, or discriminationbased on a prohibited ground.39 Therefore, a proper defendant is any

person or entity who engages in the unlawful actions identified insubsection (c).40 Typically, the targets of 3604(c) claims are personsengaged in the sale or rental of housing . . . and . . . newspapers and otheradvertising media that make print or publish the offending material ofothers.41

A violation can be established either by proving an actual intent todiscriminate or by showing that an ordinary reader would interpret theadvertisement as indicating a preference based on color, religion, sex,handicap, familial status, or national origin.42 Requiring that the notice,statement, or advertisement only needs to indicate discrimination toestablish liability sets 3604(c) apart from other FHA provisions thatrequire a showing of discriminatory intent.43The indicateslanguage has

been interpreted by the courts44

to mean that the statute is violated if thenotice, statement, or advertisement indicates discrimination to an ordinaryreader, regardless of the defendants intent.45 This objective ordinaryreader standard has been adopted in every circuit that has heard a 3604(c) claim.46

39 42 U.S.C. 3604(c); seeSchwemm, supranote16,at21316.40 Schwemm, supranote16,at214n.110.41 Id. at214.42 SeeHous. Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th

Cir. 1991).43 Schwemm, supranote16,at21516.44 See, e.g., Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991) ([We begin] our

analysis with the statutory language, the first critical word is the verb indicates. Giving that

word its common meaning, we read the statute to be violated if an ad for housing suggests to

an ordinary reader that a particular race is preferred or dispreferred for the housing in

question.).45 Schwemm, supranote16,at215.46 SeeJancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995). Two appellate

decisions set the parameters for interpretations of 3604(c): United States v. Hunter in the

Fourth Circuit andMayers v. Ridleyin the D.C. Circuit. Schwemm, supranote16,at21619;see

United States v. Hunter, 459 F.2d 205, 21015 (4th Cir. 1972) (holding that a newspaper had

violated 3604(c) by publishing a discriminatory ad placed by a Mrs. Murphy landlord,

therefore establishing that 3604(c) applies to otherwise exempt properties under the FHA);

Mayers v. Ridley, 465 F.2d 630, 654 (D.C. Cir. 1972) (holding that 3604(c) prohibited the

recording of deeds with racially restrictive covenants, thus extending the statute to notices

and statements beyond advertisements for housing).


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II. The Ordinary ReaderStandard for Fair Housing Advertisements

A. The Second and Seventh CircuitsOrdinary ReaderStandard forDetermining Violations of the Fair Housing Act

1. Second Circuit: Ragin v. New York Times Co.

The Second Circuit adopted the ordinary reader standard for analyzing 3604(c) violations in Ragin v. New York Times Co.47 In Ragin, the New YorkTimes (the Times) was alleged to have published housingadvertisements over a twenty-year span that predominantly featured onlywhite models depicted as potential homeowners or renters.48The plaintiffs,individuals who had been looking for housing in the New York area and anon-profit, Open Housing Center Inc., brought an action under the FHA,42 U.S.C. 3604 (a) and (c).49The plaintiffs claimed that because the modelsrepresented the desired renters or buyers for the real estate advertised, theTimesrepeated and continued depiction of white human models and thevirtual absence of any black human models . . . indicates a preference onthe basis of race.50

In examining the language of 3604(c), the Second Circuit court readthe statute to be violated if an ad for housing suggests to an ordinaryreader that a particular race is preferred or dispreferred for the housing inquestion.51 The court focused on the words indicate[] andpreference,reasoning that because the language of 3604(c) was broad,the ordinary reader standard should not be so intolerably narrow as toonly hold publishers liable where the advertisement facially suggests to thereader a racial preference.52 Instead, preferencedescribed any ad thatwould discourage an ordinary reader of a particular racefrom respondingto a housing advertisement.53 Therefore, under the Second Circuitsstandard, 3604(c) would be violated when an ordinary reader would

47 Ragin, 923 F.2d at 999 (This [ordinary reader] standard has been adopted by the Fourth .

. . and District of Columbia Circuits . . . and we also adopt it.).48 Id.at 998.49 Id.50 Id.(internal quotations omitted).51 Id.at 999.52 Id.(rejecting the Times argument that the statute should be read to preclude liability for

a publisher where the ad in question is not facially discriminatory and the publisher has no

other evidence of a discriminatory intent.).

53 Ragin, 923 F.2d at 9991000 (reasoning that ordinary readers may reasonably infer a

racial message from advertisements that are more subtle than the hypothetical swastika or

burning cross . . . .).


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understand the ad as suggesting a racial preference.54

The Second Circuit held that the plaintiffs claim could not bedismissed for failure to state a claim for relief.55The court specified that the

notice, statement, or advertisement prohibitions under 3604(c) appliedonly to individual advertisers and the Times liability could not beestablished upon an aggregat[e] of advertisements by differentadvertisers.56 Further, the court rejected the Times argument that 3604(c) violated the First Amendment, finding that the statute was not voidfor vagueness and did not place an unconstitutional burden on the freepress.57

2. Seventh Circuit:Jancik v. Department of Housing and UrbanDevelopment

In Jancik v. Department of Housing and Urban Development, the SeventhCircuit adopted the objective ordinary reader standard for determining

whether an advertisement for housing violated 3604(c)s prohibition ofindicating a preference or limitation based on race or family status.58 Atissue: a determination by the Department of Housing and UrbanDevelopment (HUD) against Stanley Jancik, owner of a large housingcomplex in suburban Chicago.59 HUD claimed that Janciks ad in a localsuburban newspaper violated 804(c) of the Fair Housing Act byindicating a preference based on race and family status.60 The ad read:NORTHLAKE deluxe 1 BR apt, a/c, newer quiet bldg, pool, prkg, matureperson preferred, credit checked. $395.61 Jancik appealed theAdministrative Law Judges order finding that he had violated 3604(c) byindicating a preference based on family status in his print advertisement.62

54 Id.at 1002 (describing an ordinary reader as one who is neither the most suspicious nor

the most insensitive).55 Id. at 1001 (stating that the claim alleged a long-standing pattern of publishing real

estate ads that the pattern reflect[ed] a targeting of racial groups and [g]iven the ordinary

reader test, it can hardly be said that these allegations are insufficient to enable plaintiffs to

prove that the Times has published, and continues to publish, some discriminatory ads.).56 Id.at 100102.57 Id. at 100204 (reasoning that the ordinary reader standard provides constitutionally

adequate notice of the prohibited conduct and equating the standards ordinary reader

with the common laws reasonable man: [a] familiar creature by whose standards human

conduct has been judged for centuries.).58 44 F.3d 553, 556 (7th Cir. 1995).59 Id.at 55455.

60 See id.61 Id.at 554.62 See id.at 555.


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The Seventh Circuit centered its analysis on whether the advertisementat issue indicated a preference based on family status. 63To determine theproper interpretation of 3604(c)s indicateslanguage the court followed

other circuits and applied the objective ordinary reader standard.64

Therefore, an ad for housing violates the statute if it indicates to anordinary reader that a particular [protected group] is preferred ordispreferred for the housing in question.65 Specifically, there is norequirement to show a subjective intent to discriminate or for the ad tojump out at the reader with [the] offending message.66 Rather, theSeventh Circuit emphasized Ragins holding that 3604(c) is violated if anad discouragesan ordinary reader of a particular group from responding.67Under the ordinary reader standard, the mature person preferredlanguage in Janciks advertisement indicates a discriminatory andunlawful preference in violation of the statute.68 Therefore, the SeventhCircuit upheld the Administrative Law Judges order.69

B. Miami Valley Fair Housing Center, Inc. v. Connor Group:theSixth Circuit Declines to Follow the Second and Seventh Circuits

1. Housing Opportunities Made Equal, Inc. v. CincinnatiEnquirer, Inc.

The Sixth Circuit, in Housing Opportunities Made Equal, Inc. v. CincinnatiEnquirer, Inc., also adopted the ordinary reader standard for determiningwhether an advertisement for housing is unlawful under the FHA. 70 Ahuman-models case,the facts in Housing Opportunities closely resembledRagin.71 A non-profit organization, Housing Opportunities Made Equal(HOME), alleged that the Cincinnati Enquirer violated 3604(c) bypublishing real estate advertisements that, in the aggregate, indicated a

63 See id.at 556.64 See Jancik, 44 F.3d at 556 ([E]very circuit that has considered a claim under section

3604(c) has held that an objective ordinary reader standard should be applied in determining

what is indicated by an ad.).65 Id.(quoting Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991)).66 See id.67 See id.(quoting Ragin, 923 F.2d at 999) (emphasis added).68 See id.(finding that the term mature person was problematic as it both suggest[ed] an

unlawful preference to an ordinary reader and was one of the most often used [terms] in

residential real estate advertising to convey either overt or tacit discriminatory preferences or

limitations).

69 Id.70 943 F.2d 644, 646 (6th Cir. 1991).71 See id.at 64546.


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racial preference for whites.72While the Sixth Circuit adopted the ordinaryreader standard for determining violations of 3604(c), it did not apply itin Housing Opportunities because HOMEs claim dealt with a message

separate from and incidental to the individually placed advertisements.73

Notably, in its analysis, the Sixth Circuit relied on Housing Opportunitiesreasoning in adopting the ordinary reader standard, but ultimatelydeclined to follow the Second and Seventh Circuits interpretation of thestandard.74

2. Miami Valley Fair Housing Center, Inc. v. Connor Group

In Miami Valley Fair Housing Center, Inc. v. Connor Group, the SixthCircuit relied on the Housing Opportunities opinion and reasoning foradopting the ordinary reader standard, but declined to incorporate thediscouragelanguage used in the Second and Seventh Circuitsanalyses.75The Miami Valley Fair Housing Center (Miami Valley), a fair-housing

organization operating in Montgomery County and surrounding countiesin Ohio, brought suit against the Connor Group, owner and manager ofrental units nationwide, for violations of the FHA and Ohios housingstatute.76In May of 2009, a listing agent had posted a rental ad on Craigslistreading: 599/1brGreat Bachelor Pad! (Centerville) Our one bedroomapartments are a great bachelor pad for any single man looking to hookup.77 This apartment includes a large bedroom, walk in closet, patio,gourmet kitchen, washer dryer hook up and so much more.78

Filing a complaint in the Southern District of Ohio, Miami Valleyalleged that this ad, along with thirteen other similar ads, violated 3604(c)and Ohios Revised Code 4112.02.79 Miami Valley argued that the adwas facially discriminatory to families and women.80The case went to a

jury, where the judge instructed them to apply the ordinary reader

72 Id.at 64546, 650 (arguing that the Cincinatti Enquirer was liable under 3604(c) for the

aggregate message of multiple advertisements published notwithstanding the legality of

each advertisement.).73 Id. at 650.74 See infraPart II.B.2.75 725 F.3d 571, 57778 (6th Cir. 2013) ([W]e feel it imperative to clarify that we do not

believe that this ordinary-reader standard requires an advertisement to discourage an

ordinary reader of a particular protected class.).76 Id. at 57475.77 Id. at 575.

78 Id.79 Id.80 Id.


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standard to determine whether an ordinary reader who is a member of aprotected class would be discouraged from answering the advertisementbecause of some discriminatory statement or indication in the

advertisement.81

The jury found in favor of the Connor Group.82

On appeal by Miami Valley, the Sixth Circuit reviewed the district

courts application of the ordinary reader standard.83 The courtdistinguished its application of the standard by declining to follow theSeventh and Second Circuits interpretation, which required anadvertisement to discourage an ordinary reader of a particular class.84The court agreed with Housing Opportunitiesthat the language of 3604(c)was purposely broad and did not require a mechanical test to determinewhether an advertisement is discriminatory;85 rather, an ad violates thestatute if it suggests to an ordinary reader that a particular group ispreferred or dispreferredfor housing because of a prohibited factor listedin the statute.86

However, the Sixth Circuit reasoned that the discourage languageincluded in the Second and Seventh Circuits standards created potentialFirst Amendment concerns of an overly broad restriction on speech. 87Under 3604(c), an advertisement for housing is considered unlawful if itindicates any preferencebased on a prohibited factor.88TheMiami Valleycourt disagreed with Ragin and Jancik, asserting that preference, theword used in the Fair Housing statute, and discourage,the word used inthe Second and Seventh Circuitsstandard, were not synonymous with oneanother.89 The leap from preference to discourage had no textualsupport in 3604(c), and further, the Ragin andJancik opinions provided noreasoning to support it.90The Sixth Circuit thus consider[ed] only whetheran ordinary reader would find that the advertisement indicates a

81Miami Valley, 725 F.3d at 575 (emphasis added).82 Id. at576.83 See id. at 577.84 Id.85 Id. (citing Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc ., 943 F.2d

644, 647 (6th Cir. 1991)).86 Id.(citing Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991)).87Miami Valley, 725 F.3d at 578 (For example, advertisements that do not indicate a

preference and merely describe a property, such as walk-up, no elevators or very small

apartment, could potentially discourage an ordinary reader of a protected class from

considering it.).

88 42 U.S.C. 3604(c) (2012).89Miami Valley, 725 F.3d at 577.90 Id. at 57778.


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preference.91Finding the jury instructions deficient to this extent, the courtremanded for a new trial.92

ANALYSIS

III. The Circuit Split on 3604(c)s Ordinary ReaderStandard

A. Legislative Intent and Plain Meaning of the Text of 3604(c)Necessitates an Ordinary ReaderStandard Which Considers OnlyWhether a Housing Advertisement Indicates a Preference

In determining whether a housing advertisement violates the FHAunder 3604(c), courts should only consider whether an ordinary readerwould find that the ad indicates a preference based on one of the statute sprohibited factors.93A standard, which finds the statute is violated by anyad that would discourage an ordinary reader of a particular [protected

group] from answering it,94

effectively replaces indicates a preferencewith a broader restriction that has no textual support in the language of 3604(c).95 The correct ordinary reader standard omits the discouragelanguage adopted by the Second and Seventh Circuits, thereby allowingthe analysis to adhere to the legislative intent and plain meaning of 3604(c) while continuing to uphold the purpose behind it.96

Section 3604(c)s coverage is substantive and courts have continued tobroaden its scope since the enactment of the FHA in 1968.97There is neitherlegislative history concerning 3604(c), nor are there statements stemmingfrom Congresss floor debates about the specific provision.98 Therefore,courts have relied almost exclusively on the plain meaning of the languagein the statute in determining the scope and application of 3604(c).99The

91 Id. at 578.92 Id. at 581.93 See id. at 57778.94Jancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 55556 (7th Cir. 1995) (quoting Ragin

v. New York Times Co., 923 F.2d 995, 9991000 (2d Cir. 1991)) (emphasis added).95 See MiamiValley, 725 F.3d at 578.96 See id. at 577 (stating that discourage is not synonymous with preference and has no

textual support in 3604(c)); see also Fair Hous. Ctr. of Sw. Mich. v. Hunt, No. 1:09cv593,

2013 WL 5719152, at *12 (W.D. Mich. Oct. 21, 2013) (citing Miami Valley, 725 F.3d at 577)

(applying the Sixth Circuits ordinary readerstandard which asks only whether an ordinary

reader would find that the particular advertisement or statement indicates a preferenceagainst

renting to a protected group.) (emphasis added).

97 SeeSchwemm, supra note16,at 20004.98 Id.at 19899.99 See id. at199.


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result is that courts interpret and apply the language of the provisionbroadly.100

The objective ordinary reader standard is effective because it

responds to the problem of defining discriminatory injury absentsubjective intent101the statute prohibits subtle expressions ofdiscriminatory purpose, regardless of whether the ad is faciallydiscriminatory or the defendant engaged in intentional discriminatoryconduct.102 After the Hunter decision,103 more subtle advertising, like theads litigated in the human-models cases, which deterred protectedgroups through suggestive images, replaced widespread, blatantlydiscriminatory advertisements.104 These types of ads are still proscribedunder 3604(c) because the ordinary reader standard determines liabilitybased on the advertisements discriminatory meaning (what theadvertisement indicates to the reader) and not the actors consciouspurpose.105 The standard does not require discriminatory intent be in the

actors conscience at all.106

Section 3604(c) is unique in this regard; itaccounts for unconscious racism,whereas other areas of the law requirea showing of discriminatory intent.107

Additionally, the standard furthers the public policy behind theprovision: housing advertisements that convey to a reader that certaingroups are unwelcome are detrimental to our societyand contrary to the

100 See, e.g.,Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991) (Congress used

broad language in Section 3604(c), and there is no cogent reason to narrow the meaning of

that language.).101 SeeJessie Allen,A Possible Remedy for Unthinking Discrimination, 61 BROOK.L.REV.1299,

1329 (1995).102 See Danne, supra note12, 12 (asserting that courts have consistently recognized that

since 3604(c) prohibits advertisements which merely indicate a prohibited preference,

the statute bans the most provocative and offensive expressions of discriminatory purpose,

or statements indicating an outright refusal to sell or rent to persons in a protected class and

furthermore, the proscription encompasses more subtle means of expressing such a

purpose.).103 United States v. Hunter, 459 F.2d 205, 215 (4th Cir. 1972) (holding that a newspaper was

liable under 3604(c) for an explicitly exclusionary messagean apartment for rent in a

private white home.).104 Andrene N. Plummer, A Few New Solutions to a Very Old Problem: How the Fair Housing

Act Can Be Improved to Deter Discriminatory Conduct by Real Estate Brokers, 47 HOW.L.J.163,178

(2003).105 SeeAllen, supranote 101, at 1301.

106 Seeid. at 1302.107 See id.at 130001 (Considerable evidence indicates that Americans continue to apply

racial stereotypes without realizing that they are perpetuating racial inequality.).


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purpose of the FHA.108This could not be achieved if courts were to requireproof of discriminatory intent or narrowed the standard to proscribe onlyfacially discriminatory ads.109

In Ragin, the Second Circuit drew support from the broad andinclusive plain language of 3604(c) and applied the objective ordinaryreader standard to determine what is indicatedby an advertisement.110The court determined that the intended meaning of the word preference,as used in the provision, describe[d] any advertisement that woulddiscourage an ordinary reader of a particular protected class fromanswering it.111 In applying the standard as an example, the courtsuggested that if an advertiser created ads that discouraged potentialconsumers from responding, such ads would be proscribed under 3604(c), regardless of the advertisers subjective intent.112

The Seventh Circuit followed suit in dealing with the indicatesaspect of 3604(c), and adopted verbatim Ragins interpretation of the

ordinary reader standard.113

The court lifted the language from the Raginopinion: an ad did not need to jump out at the readerwith an offendingmessage (facially discriminatory), but merely discourage an ordinaryreader of a particular protected group from answering it.114

However, while it is well established that indicates any preferencedoes not require an advertisement to contain an explicit message orintentional discriminatory purpose, under 3604(c) the advertisement is

108 See Ross D. Petty et al., Regulating Target Marketing and Other Race-Based Advertising

Practices, 8 MICH.J.RACE &L.335, 37374 (2003).109

SeeRagin v. New York Times Co., 923 F.2d 995, 9991000 (2d Cir. 1991).110 Id. at 999 (drawing from the text and legislative history of the statute, the court gave the

verb indicates its common meaning and read the statute to be violated if an ad for housing

suggests to an ordinary reader that a particular race is preferred or dispreferred for the

housing in question.).111 Id. ([W]e word preference to describe any ad that would discourage an ordinary

reader of a particular race from answering it.). The Ragin opinion uses the term discourage

four times in applying the standard to the facts of the case. Id.at 1000, 1001, 1003.112 Id. at 1000.113Jancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995) (following other

circuit courts application of the test, the Seventh Circuit held that the statute is violated by

any ad that would discourage an ordinary reader of a particular [protected group] from

answering it. (quoting Ragin, 923 F.2d at 9991000) (emphasis added)); cf. Ragin v. Harry

Macklowe Real Estate Co., 6 F.3d 898, 905 (2d Cir. 1993) (avoiding the discourage language

applied by the Second Circuit in the first Ragincase); Housing Opportunities,943 F.2d at 646(same).

114Jancik, 44 F.3d at 556 (quoting Ragin, 923 F.2d at 9991000) (internal quotations omitted).


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not prohibited if it discourages an ordinary reader.115 Just as the plainlanguage of the provision does not support a narrow interpretation of itsmeaning,116it does not support an intolerably broad interpretation either.117

The Sixth Circuit inMiami Valley recognized this overstep.118

There is no textual support in 3604(c) for a leap from the word

preference, a noun, to discourage, a verb, in the ordinary-readeranalysis.119 Further, neither the Ragin nor Jancik opinions provide anyexplanation for this leap.120 Section 3604(c) makes it unlawful to make,print, or publishan advertisement that indicatesa preference.121RaginandJancik interpret preferenceand discourageas equivalent.122But theword preference, as used in the FHA, is not synonymous withdiscourage.123The Second and Seventh Circuitsrequirement that an addiscouragean ordinary reader effectively replaces the verb indicates.124Reconfiguring the analysis in this manner infers intent on the part of the

115 See 42 U.S.C. 3604(c) (2006); Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725

F.3d 571, 577 (6th Cir. 2013).116 See Ragin, 923 F.2d at 999. The Times argued that the statute required showing that the

ad was facially discriminatory, as well as evidence of discriminatory intent in order to

establish a violation; the Second Circuit considered this interpretation of 3604(c) to be too

narrow. Id.117 See MiamiValley, 725 F.3d at 578 (We believe that using discourage could create First

Amendment concerns by creating an overly broad restriction on speech.).118 See id. at 57778.119 Id. at 577; seeinfranote123.120MiamiValley, 725 F.3d at 57778.121 42 U.S.C. 3604(c) (2006). The Second Circuit was correct in finding that indicates any

preference requires an ad [for housing] suggest[s] to an ordinary reader that a particularrace is preferred or dispreferred for the housing in question for the statute to be violated.

Ragin, 923 F.2d at 999.122 SeeJancik v. Dept of Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995) (holding that

the statute is violated by any ad that would discourage an ordinary reader of a particular

[protected group] from answering it. (quoting Ragin, 923 F.2d at 9991000)); Ragin, 923 F.2d

at 9991000 ([W]e read the word preference to describe any ad that would discourage an

ordinary reader of a particular race from answering it.).123 See Miami Valley, 725 F.3d at 577. Preference, a noun, is defined as the act, fact or

principle of giving advantages to some over others. MERRIAM-WEBSTERS COLLEGIATE

DICTIONARY 979(11th ed. 2003).While discourage, a verb, means to hinder by disfavoring

or to dissuade or attempt to dissuade from doing something. Id. at 357.124 Seesupra Part II.A.1; Petty et al., supra note 108, at 37677 (describing advertisements in

violation of 3604(c) as those which encourage or discourage rather than indicating a certain

preference: [P]eople of color are protected from race-based advertising practices that either

encourage or discourage them from purchasing a particular home or renting an apartment in a

certain neighborhood. (emphasis added)).


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actor, rather than focusing on the meaning of the advertisement itself asindicated to an ordinary reader.125 Augmenting the standard withdiscourage surpasses the parameters of 3604(c)s plain meaning by

altering the action prohibited under the provision,126

thereby broadeningthe scope of the statute.127

Furthermore, a standard that includes discourage is problematicbecause it will likely result in confusing, misleading, and prejudicial128jury instructions.129 In Miami Valley, the jury instructions asked: whetherthe message [conveyed by the advertisement] focuses on the suitability ofthe property to the renter, which is permissible, or whether itimpermissibly focuses on the suitability of the renter to the owner.130Thesuitability inquiry, as articulated in Metropolitan Milwaukee Fair HousingCouncil v. Labor & Industry Review Commission, and again in Miami Valley,would find many ads to be permissible that in fact violate the [FHA].131Jurors would have no option but to find in favor of an advertisement that,

for example, speaks to the suitability of the apartment to the renter, asingle man.132

The inclusion of discourage can, on one hand, broaden 3604(c)srestrictions to bar otherwise permissible advertisements;133while applyingthe suitability inquiry may render instructions that would lead jurors toerroneously hold in favor of ads that violate the FHA. 134Both outcomes are

125 See Allen, supra note 101, at 132627 (The focus is on the meaning of the ad itself, and

the FHA outlaws all ads that indicate a racial preference to an ordinary reader whatever the

advertisers intent. (quoting Ragin, 923 F.2d at 1000)).126 See Ragin, 923 F.2d at 999 (Beginning our analysis with the statutory language, the first

critical word is the verb indicates.).127 SeeMiami Valley, 725 F.3d at 579 (discussing the Ohio housing statute, which forbids

advertisements which express a specification, the Sixth Circuit found that the addition of

the word specification arguably broadens the scope of the statute beyond that covered by the

[FHA].).128 See Fair Housing: Jury Instruction on Suitability Improper, 43 REAL EST.L.REP.,Sep. 2013,

at 8.129 See MiamiValley, 725 F.3d at 578 (holding that whether an ordinary reader may find

[an] ad clearly suggests a preference is an inference best left to the jury to consider).130 Id. at 575. The trial court borrowed its jury instructions from Metropolitan Milwaukee Fair

Housing Council v. Labor & Industry Review Commissionwhich had adopted the Second Circuits

ordinary reader standard as set out in Ragin. Id. at 575 (citing Metro. Milwaukee Fair Hous.

Council v. Labor & Indus. Review Comm'n, 496 N.W.2d 159, 20405 (Wis. Ct. App. 1992)).131 Id. at 580.

132 Id.133 See supranotes128132 and accompanying text.134 See MiamiValley, 725 F.3d at 580.


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contrary to the purpose and plain meaning of 3604(c).135

Conversely, proponents of the Second and Seventh Circuits standardmay argue that restricting the inquiry, to only whether an advertisement

indicates a preference, is in opposition of the FHAs policy ofpromoting fair housing practices to the fullest extent allowable under theConstitution.136 In the early 1990s, the human-models cases generatedarguments that FHAs prohibitive scope should extend beyond theseconstitutional constraintsthis was the only way to adequately confrontprevalent housing discrimination and the dominance of white images inhousing advertising.137

Though courts have continued to broaden 3604(c) since theenactment of the FHA, the statutes prohibitive scope must have an endpoint.138Augmenting the analysis to consider whether an ad discouragesa reader139and further, to consider the race of the particular litigant, 140willgenerate an impermissibly strict prohibition and result in inconsistencies.141

The exclusive use of white human-models in real estate ads is nolonger the subject of 3604(c) claims.142 The housing landscape haschanged: the Internet has become the primary resource for those seekingand advertising housing.143Current discriminatory advertisements are notconsistently anti-minority144and the most common basis for discrimination

135 See supra notes125127 and accompanying text.136 See Wilemon, supra note9,at 377.137 Reginald Leamon Robinson, The Racial Limits of the Fair Housing Act: The Intersection of

Dominant White Images, the Violence of Neighborhood Purity, and the Master Narrative of Black

Inferiority, 37 WM.&MARY L.REV.69,72(1995).ContraHous. Opportunities Made Equal, Inc.

v. Cincinnati Enquirer, Inc., 943 F.2d 644, 650 (6th Cir. 1991) (rejecting an aggregate message

theory of liability because it hinged on a construction of 3604(c) that would give rise to a

constitutional infirmity). See generally Michael E. Rosman, Ambiguity and the First

Amendment: Some Thoughts on All-White Advertising, 61 Tenn. L. Rev. 289, 31321 (1993).138 SeeSchwemm, supra note16,at 20004.139 SeeJancik v. Deptof Hous. & Urban Dev., 44 F.3d 553, 556 (7th Cir. 1995); Ragin v. New

York Times Co., 923 F.2d 995, 9991000 (2d Cir. 1991).140 See Ivan C. Smith, Discriminatory Use of Models in Housing Advertisement: The Ordinary

Black Reader Standard, 54 OHIO ST.L.J. 1521, 153334 (1993).141 See Plummer, supra note 104, at 180 (discussing proposed solutions to the ordinary

reader standard).142 SeeSchwemm, supra note16,at223.143 See infranote187 and accompanying text.144 Rigel C. Oliveri, Discriminatory Housing Advertisements On-line: Lessons From Craigslist, 43

IND.L.REV. 1125, 114648 (2010) (examining a 2009 National Fair Housing Alliance (NFHA)

report, the author found that of the ads that potentially discriminated on the basis of race,

religion, and national origin combined made up less than 1% of the sample.).


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in real estate advertising is familial status. 145[T]he discrimination runs inall directions,146 and the statute must accommodate its intendedbeneficiaries: the entire community.147 Therefore, 3604(c) requires an

analysis that is able to balance Congressgoal of integrated communities148

with a consistent evaluation of discriminatory advertisements. 149Consequently, the proper ordinary reader standard omits the discouragelanguage and inquires only whether an advertisement indicates to anordinary reader a preference based on a prohibited factor.150

B. The Proper Ordinary ReaderStandard Omits DiscourageThisConstruction Avoids an Overly Broad Restriction of Speech

Courts determining 3604(c) violations occasionally confrontarguments that the statute, because it restricts certain types ofcommunication, intrudes on the First Amendments protection of freespeech and expression.151Courts have so far rejected these defenses,

holding that the limits placed on communications by 3604(c) do notviolate the First Amendment.152However, a 3604(c) analysis that inquireswhether an ad discouragesan ordinary reader would generate valid FirstAmendment concerns.153This construction of the ordinary reader standardcreates an overly broad restriction on speech; therefore, the Second andSeventh Circuitsdiscouragelanguage should be omitted.154

The Fourth and Second Circuit courts specifically rejected FirstAmendment defenses in Hunter and Ragin, declining to hold that anotherwise unlawful communication under 3604(c) [was] protected bythe First Amendment.155 Hunter upheld the district courts finding that3604(c) did not contravene the First Amendment, reasoning that anewspaper will not be insulated from the otherwise valid regulation of

145 Id.at 114647.146 Id. at 1148.147 See 114 CONG.REC.2705,270507 (1968) (statement of Sen. Javits).148 See Schwemm, supra note16,at213.149 SeeMiami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 578 (6th Cir. 2013)

(applying the discourage analysis could find ads that merely describe a property in

violation of 3604(c)).150 Seeid.151 Schwemm, supra note16,at267.152 Danne, supra note12, 3(a).153 See MiamiValley, 725 F.3d at 57778.

154 Id.155 Ragin v. New York Times Co., 923 F.2d 995, 100205; United States v. Hunter, 459 F.2d

205, 21115 (4th Cir. 1972); Schwemm, supra note16,at 267 & n.372.


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economic activity merely because it also engages in constitutionallyprotected dissemination of ideas.156Likewise, the Second Circuit in Raginfound that the ordinary reader standard provided adequate notice of the

prohibited conduct and that the Supreme Court affords less protection tocommercial speech than to other forms of expression.157The Second Circuitupheld the lower courts determination that discriminatory housingadvertisements, by indicating a racial preference, further an illegalcommercial activity.158

Alternatively, the Sixth Circuit has interpreted 3604(c) in a way thataims to avoid possible First Amendment problems.159In a human-modelcase similar to Ragin, the court in Housing Opportunities rejected anaggregate messagetheory of liability because it hinged on a constructionof 3604(c) that would give rise to a constitutional infirmityin regards tothe First Amendment.160 Construing the statute to hold that otherwisenondiscriminatory advertisements were liable for the creation and effects

of their aggregate message was unsupported by the FHAs text andpurpose.161

InMiami Valley, the Sixth Circuit again pressed for a theory of liabilityunder 3604(c) that eschewed First Amendment concerns. 162 The courtsconstitutional concerns centered on the standards restriction of speech inall advertisements, rather than on the restraints that 3604(c) potentiallyplaces on commercial speech.163 Particularly, using discourage in the

156 Hunter, 459 F.2d at 212.157 Ragin, 923 F.2d at 100203 (The government may . . . ban deceptive advertising or

commercial speech related to illegal activity.).158

Id.at 1002; see also Campbell v. Robb, 162 F. Appx 460, 469 (6th Cir. 2006) (stating thatdiscriminatory statements from a landlord to a prospective tenant are commercial speech and

because such statements are related to illegal activity . . . [they] receive[] no First

Amendment protection whatsoever.).159 See Schwemm, supra note 16, at 26768; e.g., Hous. Opportunities Made Equal, Inc. v.

Cincinnati Enquirer, Inc., 943 F.2d 644, 651 (6th Cir. 1991);MiamiValley, 725 F.3d at 57778; see

also Stewart v. Furton, 774 F.2d 706, 710 n.2 (6th Cir. 1985) (suggesting that a landlord's biased

statement unrelated to a specific discriminatory transaction would raise difficult First

Amendment issues).160 Housing Opportunities, 943 F.2d at 650.161 Id.162 SeeMiamiValley, 725 F.3d at 57778.163 Compare id.at 578 (focusing its discussion on the impact to all advertisements, with no

distinction made to any impact on commercial speech), withRagin v. New York Times Co.,

923 F.2d 955, 100204 (2d Cir. 1991) (rejecting the Times arguments that 3604(c) creates

unconstitutional burdens on the press by citing to the Supreme Courts Assertion that the

Constitution provides lesser protection to commercial speech).


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ordinary reader standard to evaluate 3604(c) violations created an overlybroad restriction on speech, thus possibly implicating the FirstAmendment.164Advertisements could potentially discouragean ordinary

reader of a protected class if, for example, the advertisement indicated thatthe housing was very small or was a walk-upwithout elevatorseventhough this is merely a description of the property.165

Though the constitutionality of 3604(c) is well established,166 a FirstAmendment argument in relation to the Second and Seventh Circuitsaugmented ordinary-reader standard would have traction.167 A standardthat inquires whether a housing advertisement discouragesan ordinaryreader is too broad and thus encroaches on free speech.168Courts shouldconsistently follow a construction of the ordinary reader standard that willnot give rise to a constitutional infirmity.169 Therefore, the properstandard for evaluating discriminatory advertisements under 3604(c)examines solely whether the ad indicates a preference.170

IV. An Ordinary-ReaderStandard Which Includes DiscourageisUnworkable in the Online Context

Unlike their paper counterparts,171 housing advertisements posted onthe Internet currently receive robust free speech protections from the FHAantidiscrimination policies.172 The Internet has become a safe haven forhousing discrimination173 and 3604(c) faces potential challenges to its

164Miami Valley, 725 F.3d at 57778.165 Id. at 578.166 See Jeffrey M. Sussman, Article, Cyberspace: An Emerging Safe Haven for Housing

Discrimination, 19 LOY.CONSUMER L.REV.194, 200 (2007).167 See Miami Valley, 725 F.3d at 578.168 Seeid.169 Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 650 (6th

Cir. 1991).170 SeeMiamiValley, 725 F.3d at 57778.171 See42 U.S.C. 3604(c) (creating express liability for those who publish, or cause to be . .

. published discriminatory housing advertisements); see also Ragin v. New York Times Co.,

923 F.2d 955, 998, 1005 (2d Cir. 1991) (holding that publishers of discriminatory housing

advertisements are not immunized from liability under 3604(c)).172 See Diane J. Klein & Charles Doskow, Housingdiscrimination.com: The Ninth Circuit

(Mostly) Puts Out the Welcome Mat for Fair Housing Act Suits Against Roommate-Matching

Websites, 38 GOLDEN GATE U. L. REV. 329, 332 (2008) (preventing Internet service providers

(ISPs) from being treated as publishers of content provided by third parties, the

Communications Decency Act (CDA) provides some immunity for online housing ads from 3604(c)).

173 Sussman, Note, supra note166,at 217 (arguing that the absence of publisher liability for


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applicability.174Consequently, construing the ordinary reader standard toinclude the discourage language is unworkable in the context of onlinehousing advertisements.175 Section 3604(c) advertising prohibitions are a

crucial component of Congress comprehensive open housing plan176

andrequire a standard that accurately reflects its legislative purpose and plainmeaning.177Therefore, the current circuit split should be resolved in favorof a standard which inquires onlywhether an ordinary reader would findthe advertisement indicates a preference.178

Courts interpret 3604(c) to include liability for newspapers and otherprint media that publish, or cause to be . . . published discriminatoryhousing adsproviding a strong incentive to screen advertisementssubmitted by third parties.179For example, the New York Times monitorsadvertisements submitted for publication.180This includes screening for adsthat fail to comply with federal and state law requirements againstdiscrimination, including the FHA.181 A result of publisher liability and the

subsequent monitoring by newspapers, discriminatory advertisements inprint publications have largely vanished.182

Conversely, housing websites have little incentive to screen out adsviolating 3604(c).183 The Communications Decency Act (CDA)eliminates civil liability for Internet service providers (ISPs) that restrictaccess to availability of material.184Therefore, under the Act, ISPs are not

Internet service providers allows discriminatory housing ads to proliferate online unchecked);

see alsoFor Rent: No Kids!, supranote2,at 45 (identifying more than 7,500 advertisements that

violate the FHA in an investigation of housing websites).174 See Klein & Doskow, supra note172,at 334-37 (arguing that the current FHA restrictions

are inefficient and that the exemptions of 3604(b) (e.g. the Mrs. Murphy exemption)

should be applied to 3604(c)); Oliveri, supra note 144, at 1128 (arguing that the FHAs

current small-landlord exemption should be reconfigured to protect roommates.).175 See infra note 202 and accompanying text.176 Oliveri, supra note144,at 1131.177 See supraPart III.A.178 See Miami Valley Fair Hous. Ctr. Inc. v. Connor Grp., 725 F.3d 571, 57778 (6th Cir.

2013).179 SeeOliveri, supra note144,at 1130.180 Ragin v. New York Times Co., 923 F.2d 995, 1004 (2d Cir. 1991).181 Id.182 SeePlummer, supra note104,at 178.183 Oliveri, supra note144,at 1127.184 See 47 U.S.C. 230(c)(2)(a) (2006). The CDA provision which immunizes ISPs from

third-party content was intended to facilitate the free flow of ideas on the Internet while

also encouraging ISPs to screen and filter offensive content, particularly pornographic or

indecent material. Oliveri, supra note144,at 113940 (citing 141 CONG.REC. H846970 (daily


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treated as publishers of third-party content for the purposes of 3604(c).185Litigation over the FHAs application in cyberspace has demonstrated thatimmunity for Web sites publishing discriminatory housing seems

virtually assured at present.186

Concurrently, the Internet has rapidlyovertaken other forms of real estate advertising to become the primaryintermediary placing housing seekers and advertisers together.187Housingwebsites offer users the ability to post advertisements effortlessly, semi-anonymously and typically without charge.188

Both case law and commentary on online discriminatory housingadvertisements focus on the tension between the CDA and FHA, ratherthan the correct standard to apply in determining whether anadvertisement violates 3604(c).189 Addressing the conflict, circuit courtshave consistently upheld the CDAs immunization of ISPs from 3604(c)spublisher liability provisions.190 This immunity is not absolute: the CDAdoes not protect sites that actively solicit and shap[e] the content

provided by users.191

Yet, in choosing to elevate the immunity ISPs over 3604(c)s anti-discrimination polices,192 courts have effectively begun eviscerating theFHAs advertising prohibition, which is integral to Congresss goal ofintegrated communities.193 Moreover, these cases highlight the veryproblematic return of prevalent discriminatory housing ads.194 The

ed. Aug. 4, 1995)).185 47 U.S.C. 230(c)(2)(1). The CDA does not affect criminal law, intellectual property law,

inconsistent state law, or communications privacy law; it does not mention federal civil rights

laws in this enumeration of exemptions. Seeid. 230(e)(1)(4).186 Wilemon, supra note 9, at 394. But see Fair Hous. Council of San Fernando Valley v.

Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (implying that publisher immunity

from the FHA is not absolute simply because the ad is published online).187 Klein & Doskow, supra note172,at 341; see Wilemon, supra note9,at 375.188 Oliveri, supra note144,at 1127.189 See generally Klein & Doskow, supra note 172; Wilemon, supra note 9; Matthew T.

Wholey, Note, The Internet is For Discrimination: Practical Difficulties and Theoretical Hurdles

Facing the Fair Housing Act Online, 60 CASE.W.RES.L.REV. 491, 495 (2010); see alsoinfra note

190.190 See, e.g., Chi. Lawyers Comm. for Civil Rights Under Law v. Craigslist, Inc., 519 F.3d

666 (7th Cir. 2008); Roommates.com, 521 F.3d at 1157.191 Oliveri, supra note 144, at 1142; Roommates.com, 521 F.3d at 117475 (holding that the

CDA did not provide immunity for websites, like Roommates.com, that required subscribers

to answer discriminating questions and then subsequently matched them to other subscribers

based on the discriminating criteria).

192 Klein & Doskow, supra note172,at 37778.193 Wholey, supranote189,at 493.194 See For Rent: No Kids! supra note2,at 45 (identifying more than 7,500 advertisements


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increased use of online service for real estate advertising exacerbates theFHAs enforcement challenges.195By holding only individual users liableunder 3604(c) for discriminatory ads, housing websites do not police

FHA-offensive content in a meaningful way.196

This conflict will likelynot be resolved until Congress intervenes.197

Altering the FHAs restrictions on speech as they apply to individualsseeking roommatesby distinguishing between the governments abilityto regulate commercial speech in housing ads and the right to intimateassociation198is contrary to the public interest in open housing andnondiscriminatory advertising embodied in the [FHA].199 Exemptingroommate advertisements that state a preference from 3604(c)sprohibitions will lead to confusion and an assumption that housingadvertisements that state a discriminatory preference are permissible bylaw.200The best solution is a clear ordinary reader standard to be applied inevaluating roommate advertisements, as well as any advertisement for

housing in print or online.201

A standard that includes the Second andSeventh Circuits discourage language is unworkable in the onlinecontext because it is so strict that seemingly innocuous phrases could resultin a violation of the statute.202 This only bolsters arguments in favor ofexempting roommate ads from 3604(c).203 Conversely, inquiring as towhether the ad indicates a preference to an ordinary reader will safeguardthe right to fair housing for all protected groups.204

CONCLUSION

In determining whether a housing advertisement violates the FHA

that violate the FHA); Oliveri, supra note144,at 114344.195 Wholey, supranote189,at 503.196 Id. at 504 & n.82.197 Wilemon, supra note9,at 394.198 Id. at 395.199 See Spann v. Colonial Vill., Inc., 899 F.2d 24, 31 (D.C. Cir. 1990). ContraWilemon, supra

note9,at 398 (arguing that the damages suffered by an individual who feels slighted by a

discriminatory roommate advertisement will probably not be debilitating, and in some

instances may only be nominal.).200 See Spann, 899 F.2d at 30 (recognizing the practices banned by 3604(c) might create the

impression that segregation in housing is legal); Wilemon, supra note9,at 398.201 See Miami Valley Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 57778 (6th Cir.

2013).

202 See supra notes164165 and accompanying text.203 See id.204 See MiamiValley, 725 F.3d at 57778.


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under 3604(c), courts should only consider whether an ordinary readerwould find that the ad indicates a preference based on one of the statute sprohibited factors. A standard which finds the statute is violated by any

ad that would discourage an ordinary reader of a particular [protectedgroup] from answering it effectively replaces indicates a preferencewith a broader restriction that has no textual support in the language of 3604(c). Omitting the discourage language allows the ordinary readeranalysis to adhere to the legislative intent and plain meaning of 3604(c)while continuing to uphold the purpose behind it.

Now that housing seekers and advertisers predominantly utilize onlinehousing websites, a clear, objective ordinary reader standard is required toavoid First Amendment infirmities and ensure that 3604(c) s advertisingprohibitions are enforced. Therefore, the circuit split should be resolved infavor of the Sixth Circuit, and the ordinary reader standard should inquireonly whether an advertisement indicates a preference based on one of the

statutes prohibited factors.

reid: "mature person preferred"

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