The Supreme Court has been asked to decide whether a Pennsylvania human-rights law violates the Constitution by forbidding "any advertisement" in which a job-seeker suggests "in any manner" his or her "race, color, religious creed, ancestry, age, sex or national origin."
State tribunals struck down the law as an impermissible prior restraint on speech protected by the First Amendment.
"As a pure matter of expression," said Pittsburgh trial Judge Harry A. Kramer, "there is the basic interest of the individual in being able to tell any one who will listen just who and what that individual is: to be able to say 'I am black' as well as 'I am a college graduate' or 'I am male' as well as 'I am ambitious.'"
Kramer ruled for the Pittsburgh Press in a case in which its "situations wanted" classified advertisements were attacked as violations of the law by the Pennsylvania Human Relations Commission. The state supreme court affirmed, 5 to 1, last January.
The commission, in a petition for review by the U.S. Supreme Court, argued that neither the newspaper nor the state high court majority had advanced a rationale for permitting inclusion of the specific forbidden criteria as opposed to "neutral" job-related terms, such as "person" and "experienced worker."
The Press, asking that the ruling be left intact, emphasized that the phrase "any advertisment" would make the law apply not merely to classified ads. "Billboards, posters, bumper stickers, mailed circulars and professional newsletters that carry biographical information about job-seeking individuals" would be put in jeopardy, the newspaper's brief said.
So would "individual mailings advertising the proscribed information," the newspaper argued. "It is inconceivable that such a ban would be held to be constitutional.
By contrast, the commission accused the lower courts of holding, "in effect, that the First Amendment's protection extends not only to legitimate commercial information, but also to data which serves no purpose other than to further a patent appeal to prejudice" and "employment discrimination."
Most, if not all, newspapers allow job applicants wide latitude in listing personal traits in positions-wanted ads in order, as Judge Kramer put it, "to sell the only thing that they have to offer: their labor."
But some newspapers, on grounds of taste and a desire not to offend their readers' sensitivities, have policies under which, for example, ads with racial identification are turned down.
Not at issue are "help wanted" ads, because in a 1972 case, also involving the Pittsburgh Press, the Supreme Court upheld an ordinance under which the city had ordered the newspaper to stop publishing such ads separately for men and women.
The current case began in 1975, when the commission filed in complaint that the Pittsburgh Press was aiding and abetting violations of the state human-rights law by running discriminatory situations-wanted ads.
At a hearing, the ads put into the record included words or phrases such as:
"College grad - born again Christian. . ."
"White woman. . ."
"Salesman - Age 30. . . 15 years sales experience."
"Man, mature. . ."
The commission, in 1976, ordered the newspaper to cease running such ads. The Press then went to court.
Two years ago, in his ruling for the paper, Judge Kramer rejected commission arguments that the ads at issue propose "purely commercial transactions" unprotected by the First Amendment and that the ads also provide biased prospective employers with handier tools for discrimination than job resumes or interviews.
The ads help "equal opportunity" and "affirmative action" employers to find more minority applicants, Kramer wrote.
Morever, he said, by barring mention of the "forbidden criteria" in any manner, the law also bars the "completely legitimate" inclusion of a job-seeker's first name which may indicate gender), last name (which may indicate race, ethnic origins or religion), alma mater, which may indicate quality of education), and experience (which bears a relation to age).
The state's proper interest in eradicating discrimination in employment isn't sufficiently furthered by the law to outweigh its significant impairment of "the flow of legitimate and truthful commercial information," Kramer said.
In the state supreme court, the dissenter, Judge Robert N. C. Nix Jr. accused the majority of making a "startling" ruling that "totally ignores this commonwealth's commitment to an egalitarian society."
The commercial speech objected to by the commission was "simply a solicitation for discriminatory hiring," he charged.
The court's majority, Nix contended, was seeking "to disguise the illegality," but its "gloss does not dismiss the controlling fact that the qualifications sought to be communicated. . . are solely for the purpose of encouraging discriminatory hiring decisions."