LINMARK ASSOCIATES, INC. v. WILLINGBORO
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of John P. Hauch, Jr.
Chief Justice Warren E. Burger: We will hear arguments next in 76-357, Linmark Associates against The Township of Willingboro.
Mr. Hauch, I think you may proceed when you are ready.
Mr. John P. Hauch, Jr.: Mr. Chief Justice, may it please the court.
In this case, the petitioners are contending the designed ordinance of the Township of Willingboro which prohibits ‘For Sale’ signs in residential premises is unconstitutional.
Right now, if you live in Willingboro, and you desire to sell your home, you may not post a ‘For Sale’ sign on your property.
If you desire to engage a builder to aid you in selling your home, how do you ignore if the order you can post it for sale sign on your property.
The justification offered by the township is not the ‘For Sale’ signs are improper, the justification is that the Township Council has a fear that the residents of the community, in the neighborhood will develop what is called a psychological fear, this being by seeing homes for sale in your neighborhood, you get the message that people are moving out and in turn, this might lead to an irrational reaction on the part of the neighbors and they might rush to put their homes in market and rush to leave the town.
Now, mixed in, with this justification is the thought on the part of some people that some neighbors may feel that if this person moves out, an member of the racial minority may move in.
So, the justification primarily is based on a frame of apprehension and fear, yet the ordinance bans all ‘For Sale’ signs on residence in Willingboro.
We can see a number of examples, where the ban would be totally irrational to accomplish and of keeping fear from residents.
For example, the person that is transferred in their employment from Willingboro, for instance, New Jersey to California cannot put up a sign, ‘Home For Sale, transfer, have Black in the community, who is selling may not put up a sign, House For Sale, Black moving out, that certainly would not create the fear that the township envisions is present for sale signs.
Similarly, a person living from one side of town to the other and this is not a small town, it's a town of 11,000 houses could not put up a sign, ‘House for Sale moving across town but not out of town’.
And the basis that the township has established here, I think leads to the central issue in the case and that is whether the township can carry its heavy burden of sustaining that this ordinance is constitutional and does not abridge the freedom of speech of the First Amendment and getting to this posture of the case, the Court Of Appeals by two to one decision reverse the District Court, the Court of Appeals holding that the ordinance was constitutional.
At that time in the history of development of the Protection for The Commercial Speech, the Court of appeals only had the initial case of 1942 of Valentine against Christians.
It had subsequently the Pittsburg press case, which upheld a prohibition on the advertising of an illegal activity, namely the sex discrimination and employment were prohibited.
It also had this court’s decision in Bigelow against Virginia but did not think that the Bigelow decision extended far enough to prevent the township from having such an ordinance ban on signs.
In 1976, after the Court of Appeals decision, this court handed down its opinion and the Virginia State Board of Pharmacy case.
This was a notable announcement of free protection afforded to commercial speech because among other things and probably primary as far as society is concerned, it was recognized that there is a great public interest in having the free flow of commercial information, it maybe indispensable and that people and their ordinary individual commercial transactions should be able to make not only intelligent but well informed decisions, they should not be kept ignorant of facts, they should not be pushed by other means to get facts that are not more readily available by the message thought to be put.
The analogy with the Virginia State Board Of Pharmacy case, I think is extremely close to our case.
There, there was a private economic transaction and was a case of extended commercial advertising protection to a product, the first case in that kind.
It is essential obviously that price which was consideration in the Virginia pharmacy case, was something that had to be known by the purchaser.
In our case, the supply of a product or a house, the availability of it in the market is equally essential to the informed and intelligent choice of a buyer.
The Virginia pharmacy case extended the protection of the First Amendment not only for the benefit of the advertise but also for the benefit of the person receiving the advertisement so that he could be informed and make intelligent decisions that affect his daily life and the sale of a house is a vitally important thing to most home owners, it may be their most important asset.
Now, the situation is not that we claim, signs cannot be regulated of this nature, obviously, there are clear areas for regulation, namely signs cannot be false, they cannot be deceptive, they cannot advertise an illegal activity as indicated by the Pittsburg press case.
There maybe other areas of regulations, such as for safety and for health.
None of these areas were involved in this case.
Township comes forth with no justification on any of those basis.
There also is not an ordinance framed in maintaining in the community, something for the purposes of safety such as traffic ingestion or something that is obnoxious and blaring that offends the senses such as noise.
Unknown Speaker: What could be your view if an ordinance prohibited placing any sign on the property at any time for any reason.
Mr. John P. Hauch, Jr.: I would say, this unconstitutional, if Your Honor, please, if I may give an example, I think the forbidding, a political sign, for instance, no matter how small could be regulated, I think it would be unconstitutional to prohibit a political sign on a private property.
Unknown Speaker: What about a sign advertising cigarettes or whisky or typical billboard sign?
Mr. John P. Hauch, Jr.: I think the typical billboard sign, if it's not compatible with the area in which it is displayed, such as national beautification of highways –
Unknown Speaker: This is matter of fear that the time and place regulations can be made of some public display.
Mr. John P. Hauch, Jr.: Absolutely Your Honor, I agree with that whole heartedly and I would say this, we do not, in this case, have a time, manner and place restriction.
We have a censorship of the message itself, it is prohibited.
The time, the manner, the place is not significant, it is not a purpose of this ordinance, it's just a complete and total suppression of a message and I think that distinguishes it from all the cases including the American Mini Theatre case in which the time and manner may be recently regulated.
We do not contend to camp it, part of the passage of this repeal, I might say the court the township did have a regulatory scheme for signs.
It embraced at least two facets, one facet was that the sign, the number of signs, the square footage of the signs, the time when after which they have to be removed was all provided by this ordinance, reasonable regulation and this pertains particularly to house for sale signs.
In addition, it is notable that in the ordinance in sections 17 (3) there was a requirement that anyone putting up a sign of this nature or any other nature must get a permit from the building inspect.
There is no fee charged for the permit in connection with house for sale signs.
That was the regulatory scheme and I think it provided adequate means for monitoring in the event, it was any fraud of illegal activity in the use of real estate signs, which is not on this record, but if they were, the legislation certainly would provide adequate means for monitoring.
Moving on, the justification upon analysis cannot in any way come out to anything except a totally illogical approach to how to achieve the stated goals of the township.
The same message can be conveyed for sale in a newspaper, it can be conveyed in a broker’s office, in a multiple listing book or even a Church, by neighbors talking or a social function.
The message itself is what the township wants to suppress to achieve their goal.
A person is going to, if we follow the township’s theory, had the same psychological fear, if that is what some people have when the person receives a message, ‘For Sale’, because that message says people are moving out.
Whether he gets that message through a sign on a property, a newspaper or broker or a neighbor is not significant, it is the message that would create the fear.
In addition, I think there is a distinction between ‘For Sale’ signs on property and other possible methods of advertising.
A broker requires a contract in most cases to pay your fee or the broker’s commission.
A newspaper cannot be as objective because the purpose of advertiser is to sell.
He is certainly going to puff the property.
We don’t see real estate ads indicating that a house has holes in the roof, or things of that nature.
So, it is not strictly objective.
It's hard you can see anything more objective than a person without outside influences, driving around on a weekend in a suburban community, and seeing a sign, and seeing the house.
There is no other way that he is going to see these two things together in a completely objective setting as far as he is concerned.
Unknown Speaker: If you told about the house, this ordinance applies to all property doesn’t it not just residential property.
Mr. John P. Hauch, Jr.: If Your Honor please, the ordinance is designed to cover residential property as one area of sign regulation.
There are also separate areas of regulation with respect to commercial areas and industrial areas.
The design of the ordinance is exclusionary and only permits of exceptions.
Unknown Speaker: Your client Linmark Associates Incorporated according to a complaint owns land and premises in Willingboro, is that residential?
Mr. John P. Hauch, Jr.: Residential, 25 Sherwood Drive, if Your Honor please.
Unknown Speaker: Is the corporation limited or what?
Mr. John P. Hauch, Jr.: It is the corporation and first I would say it is a corporation that owns this property and circumstances of ownership probably would seem odd and have some setting.
My understanding is it's a real estate company that holds titles that come out of foreclosure until they can be disposed off in a reasonable market.
There is no charge that Linmark or any evidence of Linmark engaged in anyway, in any illegal blockbusting activities or any other legally offensive activities in this community.
Unknown Speaker: I was not answering the question to that, I was just wondering why the corporation should be owning a single occupancy dwelling.
Mr. John P. Hauch, Jr.: My understanding is if Your Honor please that when there are foreclosures rather than having a sale at a distressed price in a foreclosure proceeding, quite often the mortgagee at bank, life insurance organization or fake title or put the title and nominee name if you will, until a reasonable price can be obtained at a sale.
I think that is the situation here your honor.
Unknown Speaker: What is the business of Linmark Associates Incorporated?
Mr. John P. Hauch, Jr.: Well that is its business.
It is holding these titles as I understand it after acquiring them for foreclosure sales until a reasonable price can be obtained and the sale made.
Unknown Speaker: Now, when the other plaintiffs, if is a real estate agent.
Mr. John P. Hauch, Jr.: General real estate agent, your honor.
Who engages in business in this township.
Unknown Speaker: Mr Hauch we had a case appeared not too long ago, involving the banning of cigarette advertising on radio and this was similarly affirmed upholding the ban.
There was a message that was banned.
If we decide for you in this case are we overruling that one?
Mr. John P. Hauch, Jr.: I don’t believe Sir.
Sir cigarette advertising to me is certainly in the interest of public health which is.
Unknown Speaker: Well, it isn’t illegal to smoke cigarettes.
Mr. John P. Hauch, Jr.: Yeah, I may be (Inaudible) but it isn’t, yeah.
Unknown Speaker: Well, I don’t think you would be overruling the decision in television advertising case on cigarettes, because I think the public interest on support side would not be the same type of interest as Willingboro can show in this case.
Chief Justice Warren E. Burger: Hasn’t the court made some distinction at least however refined on the broadcasters that do not apply -- for examples through newspapers on the theory that the use of the public resource by a broadcaster gives the greater Governmental Power.
Mr. John P. Hauch, Jr.: Yes, arbitrary Your Honor and broadcasting of course, the licensing situation, a private homeowner is not as a Licensing situation so, licensing activity certainly can be much more be regulated as would be the case with the realtors but not with the individual homeowner or only 'For Sale' sign.
Unknown Speaker: Your client also wants to be able to put up the 'Sold' sign as well as 'For Sale' sign.
Are you defending that practice too?
Mr. John P. Hauch, Jr.: We are not defending it here sir, because specifically it was not an issue as such but I would say that the practice should be allowed under proper regulation to indicate the information the property has been sold.
Now, perhaps, the sign is removed within five days or something but I do think it is….
Unknown Speaker: This is purely commercial, this aspect is purely commercial.
Mr. John P. Hauch, Jr.: Not entirely, Your Honor, please because it's taking a property off of the market which I think would be equally essential to somebody, a consumer, who is interested in buying a property in the area but this property was sold.
It does have some element of informing the public on something, that they should have the right to know, if they are interesting in housing market.
Unknown Speaker: Well, isn’t that essentially happen in a situation in which the real estate agent or agency is touting itself, so I think is responsible for the sale.
Mr. John P. Hauch, Jr.: That is an element of that and would not be known, so that is a commercial element.
Unknown Speaker: Isn’t that the dominant?
Mr. John P. Hauch, Jr.: In practiced would be -- I would think the dominant element because the seller no longer is concerned.
It is a commercial element but I wouldn’t say because of commercial element that could be completed prohibited.
Unknown Speaker: But you apparently in response to my brother Blackmun question, you do agree that there are some interests that were this suppression of advertising.
Mr. John P. Hauch, Jr.: Actually you only get it as Public health, the interest in public health, the public safety, the truth no deceptive advertising.
Unknown Speaker: So, your argument is there are some interests but this is not one of them.
Mr. John P. Hauch, Jr.: This is not one of them Sir.
I think it fails, the test to be applied in number of respects, one, I don’t think this ordinance proves any parameter compelling Governmental interest.
I definitely don’t perceive anything that is incidental about the regulation of suppression, the suppression of the speech to any valid immediate objective.
The sole objective is to suppress the message 'For Sale', so that you suppress an apprehension or fear and I don’t know of any case that is held that it is proper just because of simple fear or apprehension, a suppress free speech and it would be horrible if it happened because I think, just in times of controversy such as of indicated by the township here, the more speech, the more information about the problem, the more is society solving the problem.
Also, and certainly not the least essential way of accomplishing this in, because education with direct suppression is not just a restriction.
I may indicate that our Fourteenth Amendment argument is primarily based on a finding by the District Court, that there was an improper motive, a desire of the township officials to freeze and pass discrimination, we are relying on a brief of that argument.
I think the important thing in a free speech case today that has commercial advertising is to consider that our experience with government, our experience in society is that secrecy does not achieve desirable social ends.
The more information made available in consumer transactions and consumer credits and disclosures with respect to equal opportunity, the better.
We get better answers and I think the law consistently supports that view.
There is no support in the constitution for the notion that the people are kept ignorant.
They are going to be better off and social ends are going to be achieved.
Here, I think it is irrational to believe that people will act irrationally if they are given the full facts and the truth.
That’s seems to be the approach taken by the township, I do not conceive, it is support by the law or will achieve social end desired.
Unknown Speaker: Your Equal Protection Clause arguments you have just explained to us that it is – this ordinance is designed to have racial results.
You do not make an argument under the Equal Protection Clause that this ordinance prohibits the display of “For Sale” or “Sold” signs, but does not prohibit the display of signs containing other massages.
Mr. John P. Hauch, Jr.: The over breadth argument was not, as Your Honor please, it made a point in the Court of Appeals…
Unknown Speaker: It could be Equal Protection.
Mr. John P. Hauch, Jr.: I think realization of that came up in some very recant cases of this court of an over breadth and they will be although we have not urged it, because we did not urge it when we started this case that there is an overbreadth problem, this case is very serious.
Unknown Speaker: I am recognizing after Equal Protection Clause, not to overbreadth due process.
Does Willingboro permit signs of advertising other things, giving other massages?
Mr. John P. Hauch, Jr.: I think Your Honor Willingboro permits signs advertising a use that is may on the property such as a business that is on a property, may advertise if it is in its own working area on its business.
It does not allow signs that advertise off premises business.
Unknown Speaker: But if there is a bakery or a…
Mr. John P. Hauch, Jr.: If he can advertise, if he is in a commercial zone, own his property, but not office property and he can’t advertise, if he is a branch of bakeries, I understand if they…
Unknown Speaker: How about a residential zone, women who does dress making for example?
Mr. John P. Hauch, Jr.: Dress making will not be permitted however…
Unknown Speaker: In her own home, with her own needle and thread.
Mr. John P. Hauch, Jr.: Not, according to the way, the ordinance is drafted because it is non exceptional, made point after all exceptions for a private enterprise, I have a statement.
Unknown Speaker: How an apartment building putting up a ‘For Rent’ sign, one, two, three, room apartment.
Mr. John P. Hauch, Jr.: ‘For rent’ signs if Your Honor please fail in the same Repealer Clause as be 'For Sale' signs.
Unknown Speaker: But they are not committed now.
Mr. John P. Hauch, Jr.: No, sir, because the solution was both ‘For rent’ as well as ‘For Sale’, but we have not matched first the main point but they are in exactly same categories.
Unknown Speaker: Are the apartments and building, apartment structures.
Mr. John P. Hauch, Jr.: I do not believe they are of any significance.
Unknown Speaker: Where is it?
Mr. John P. Hauch, Jr.: Willingboro is midway between Philadelphia and Trenton?
Unknown Speaker: It is not my end of the statement.
Mr. John P. Hauch, Jr.: No, it is and it is a very large area, I may say geographically.
The answer that there maybe alternative means, I think there is no argument against what we contend.
There is no recognized principle that because you want to give a massage in one way and a speaker can get the massage in another way, that you have answered this suppression that Violates Free Speech.
I really do not think that the township thus far in this case has come forward and met our free speech argument head on and its briefs.
Mr. Chief Justice, I would like to reserve my remaining time.
Chief Justice Warren E. Burger: Very well, what is your response to the argument that an ordinance of this character preserves property values in the interest of the city of tax purposes and also in the interest of the property own itself.
Mr. John P. Hauch, Jr.: I think, they are looking at the record in this case, during a period uphold and through 1973, when signs were permitted.
The evidence is and no one contested that property value is actually increased.
There is no…
Unknown Speaker: If District Court make a finding about the fact.
Mr. John P. Hauch, Jr.: The District Court made a finding; they did not decrease for any period, in the record, even the trial, members of township council testified his property values had steadily increased, they had not decreased in one word.
I think it would be difficult to assume that property values would decrease because of the presence of the signs.
I think, the competition that was showing Willingboro, poor homes would keep the price up and obviously part of that is there are homes for sale, it is a message.
Unknown Speaker: But, whatever may have happened in your community, it is common knowledge, I think that where that has played significantly that property values have suffered resulting in diminution of tax revenues for the community.
Mr. John P. Hauch, Jr.: I agree, that’s true sir, and..
Unknown Speaker: It has not happened in this community.
Mr. John P. Hauch, Jr.: No, it has not, there is no evidence whatsoever in the record that it has.
Unknown Speaker: The purposes of this ordinance was preventing, I suppose.
Mr. John P. Hauch, Jr.: It is to prevent.
Unknown Speaker: To prevent rather than their repair.
Mr. John P. Hauch, Jr.: Well, it say definitely is I suppose to prevent rather than to repair, if Your Honor please and the means to prevent are illogical.
Chief Justice Warren E. Burger: Very well, Mr. Gottlieb.
Argument of Myron H. Gottlieb
Mr. Myron H. Gottlieb: Mr. Chief Justice and may it please the court.
I disagree with Counsel as might be expected or anticipated.
I think that what the Court has before is an ordinance to prohibit or ban a device which has been or was being utilized to manipulate Willingboro from an integrated community to a re-segregated one and that as such it does not run a foul of the Equal Protection Clause and secondly whether an ordinance which furthers this legitimate government interest fails the First Amendment or is contradicted by the First Amendment.
Unknown Speaker: Would you think that would be equally -- or would you think if the arguments included in this prohibition is advertising in newspapers.
Mr. Myron H. Gottlieb: I don’t believe that should be sustained.
I don’t believe that newspapers first of all in discussing this, it's quite evident that Township Council took the narrowest means it could take.
Newspaper advertisement is not affected.
Other means of the advertisement are not affected and the record reflects shown by plaintiff’s testimony that over or approximately 70% of all real estate increase for the purchase of a home comes from methods other than ‘For Sale’ signs.
We are not trying to get into other areas.
What we trying to do is merely hit the closest or the narrowest way we can approach the problem.
This is born out by the fact further, Your Honor, that in Willingboro and again disagreeing with Counsel, the fact of advertisement of homes for sale did not cause panic.
The only thing that caused panic was the fact of the advertisement for homes of sale through one particular mode or method and that was the forest of ‘For Sales’ signs on the lawns of all the homes in the residential areas.
That was what was being attacked.
If we went at anything else, it wouldn’t be reasonably related to trying to solve the problem.
This, in fact is born out by the fact that it did solve the problem.
The insecurities and tensions and problems existing in Willingboro, prior to the ban of ‘For Sale’ and ‘Sold’ signs were diminished strongly.
They were not entirely eradicated but they were diminished to quite an extent and that evidence is absolutely un-contradicted in the record.
It's quite clear that this Nation has a National Policy as to housing and perhaps…
Unknown Speaker: If you could tell me one thing about the change that the ordinance brought about, does the evidence tell us whether there has been a change in the actual number of houses being offered for sale.
Mr. Myron H. Gottlieb: No Sir, it is not.
It does show that the number of homes which were indeed sold prior to the enactment of the ordinance is about the same.
There has been no diminution of sales.
One realtor testified he was selling the same one said more.
So, at least we have got to assume it is the same.
Unknown Speaker: No change in the rate of sale nor in the rate of putting houses on the market.
Mr. Myron H. Gottlieb: I don’t know whether there was a change in?
Unknown Speaker: What does the ordinance accomplish then?
Mr. Myron H. Gottlieb: The ordinance is merely to prohibit ‘For Sale’ signs in order to reduce the people who are residing in the community, who are selling, based solely on fear and it's addressed solely to this one issue of stability.
Unknown Speaker: But doesn’t the evidence tend to indicate if the rates have remained constant that there are just as many people who sold on account of fear before the ordinance as they were after.
Mr. Myron H. Gottlieb: No sir.
Quite to the contrary the evidence although as many people were selling as before, it does not show why they were selling now, it does show that of those who were selling and again the evidence is un-contradicted here, that there was less vocalization if I may, by people who have sold their homes or were in the process of selling their homes or had decided to sell their homes as that in fact they were selling or had decided to sell because of fear of being left there, of an unstable community, a fear of being left there the last, the neighborhoods changing that type of concept.
Unknown Speaker: There is another way of doing it, it is done in some towns by putting a different sign up.
This house is not for sale.
Mr. Myron H. Gottlieb: That may in fact be the case Sir.
Willingboro did not choose the legislative judgment of the township council was, that this was the most appropriate course based upon the recommendation of the Human Relations Commission and the various public hearings that were held.
Unknown Speaker: A sign saying this house is 'Not for sale', it would also violate, it will also be impermissible.
Mr. Myron H. Gottlieb: It would now be impermissible.
Unknown Speaker: Right, because no sign is permitted.
Mr. Myron H. Gottlieb: Well, there are certain signs which are permitted.
Professional nameplates, if you would or a physician or an attorney or someone of a permitted professional use in a residential area is permitted.
With that exception no other and I am not sure how much of an exception that is, no other commercial advertisement is allowed in a residential district.
The State of New Jersey through its courts has determined that a municipality may not prohibit political signs, so that we do not try to regulate that.
We accept the State Court law that, in fact, political signs may not be regulated, at least to the extent of being prohibited, I would assume that, they could be kept back from the roadway in the interest of traffic safety or something entirely not raised here.
Unknown Speaker: Mr. Gottlieb, let me ask one other question that maybe arisen.
On this 30% factor, the 30% of the sales, only 30% were generated by the 'For Sale' sign.
Supposing the evidence had been the converse and 30% had been generated by a local newspaper ads and 70% by 'For Sale' signs, could the township had banned the newspaper ad?
Mr. Myron H. Gottlieb: No, no, I do not think we can approach newspaper advertisements and we are not trying to approach newspaper advertisements.
Unknown Speaker: What is the difference?
Mr. Myron H. Gottlieb: The factual findings, in this particular case were that newspaper advertisements did not stir up the residents, office increase or a listing in the multiple listing service booklet or pamphlet did not stir up people.
The soul thing that steered up people were the abundance of 'For Sale' signs, the signs that when people would walk to and from their home to take a walk in their neighborhood or to drive to and from work or to go to the store or take your child to walk him or her to school, that was what did it.
This dominating presence.
Unknown Speaker: For this 'For Sale' sign, does the record tell us what percentage of homes were For Sale at any given point in time.
Mr. Myron H. Gottlieb: It does not, there is a mention quite candidly where at the two public hearings held on this, a realtor at one of the hearings and I believe it was the first hearing, stood up and indicated that according to our monthly review at the previous month, there were 230 or 200 'For Sale' signs up, Willingboro having a community of 11000.
I have no idea how many other homes were up for sale through not utilizing signs.
The indication further maybe refined by two other factors.
The indication of the witness, if I recall correctly was, this was other realtor signs, it did not take into account I believe, me trying to sell my own home.
Finally, this survey was taken in the month of January, one would tend to suspect through experience, the January 'For Sale' signs on the front lawn are much less in May, June, this time of the year, when most of the real estate business goes on.
Unknown Speaker: What is the difference between the 'For Sale' signs and the newspaper ads than the practice in the real estate business is to list sample -- examples of houses 'For Sale', never listed all 230 in the same ad or anything like that.
So, you don’t get the feeling of how many are actually on the market at any one time.
Mr. Myron H. Gottlieb: I just can’t indicate this.
Unknown Speaker: I am trying to understand why you draw distinction between, my example of 30%, while I say your difference is based on the fact that is evidence in the hearing that relates to sign, there’s no evidence in hearings relating the newspaper ads.
Mr. Myron H. Gottlieb: That’s quite correct indeed, everybody indicated in testifying that there was no other mode of advertisement which caused this panic among the residents of Willingboro other than the forest or “For Sale” signs, you pick with the signs that are all over the place and that was it, that’s what Willingboro approached, they did not attempt to regulate in any other area because any other area was not causing the problem.
Unknown Speaker: Mr. Gottlieb, I perceive that perhaps you have already answered this but does your ordinance touch upon political advertising rule?
Mr. Myron H. Gottlieb: It doesn’t speak one way or the other.
I can indicate to Your Honor, that the law as determined by the State Courts of New Jersey, it is that a municipality may not prohibit signs of a political nature.
Unknown Speaker: So they were in the midst of a campaign, I can conceive of some political signs, it would accomplish just exactly what you are afraid these For Sale signs would accomplish, something this neighborhood is becoming all black, electoral segregationist or something like this.
Mr. Myron H. Gottlieb: I can only relate Your Honor that in my mind that’s a policy decision made by the First Amendment, that in fact it is a political or philosophical or social and economic exposition of order and idea, that the First Amendment says we can’t regulate that, however, here, we have a situation where we have signs which have a direct definable impact on the present residents of Willingboro which is resolving and transforming a community, which is, I can say quite probably a model in this Nation for compliance with the Fair Housing Act, if not the model.
Transforming that community into a re-segregated one.
Now, I can’t accept the assertion or the connotation that the commercial speech in this context, which is clearly against the public welfare, clearly against the public policy because of its impact which is truly deceptive in that nature, because of its impact is entitled to an elevated permit position under the First Amendment.
I don’t believe that the Court or the First Amendment has ever made that policy decision.
I think that the Court indeed has gone so far in many of the cases, I have cited in my brief, to the other extreme that where the public health safety and welfare of the community are concerned and where, here you have gone a National Welfare interest concerned as set forth in the Title VIII, The Fair Housing Act that the Court can’t just out blinders to its eyes.
No Court can, in fact I would have condemned Willingboro Township Council, if it had put blinders to its eyes, and not acted in this particular situation.
I would again indicate to the Court, contrary to the statement by Federal Council that we have a fear psychology, a panic and it's not a panic, in the sense of everybody’s moving, it's an incipiency, a beginning in Willingboro which was not conjectural.
There was no indication that because it may have occurred, the record is filled with instances where in fact, it was occurring, where in fact there was a communication by many of the residents that indeed from up height and I am worried and I am frustrated and I am fearful and that was what Willingboro’s ordinance tried to get out.
Unknown Speaker: Mr. Gottlieb, how widespread is the use of these signs?
Mr. Myron H. Gottlieb: The signs appeared in every -- Willingboro was created by Levitt to the extent that we have various parks, Somerset Parks, Pennypacker Park with, give or take an average of a thousand homes in each Park.
They were in every Park.
Unknown Speaker: A large numbers or a few…
Mr. Myron H. Gottlieb: Well, Willingboro has various types of homes.
Willingboro has single family residences, Willingboro has a section or an area of townhouses with colder sacs or short little streets.
In a colder sac with twenty homes or townhouses running on to it, which is perhaps a 150 feet long on both sides, almost a U shape to say that eight signs or six signs is less significant there than six signs or eight signs on a street which is perhaps a quarter of mile long.
I think the two factors have to be determined here, number one, the physical characteristic of the street, that it's owner of the homes bordering that street and also the number, but they were all over, there is no question that signs were in every park, they were displayed in every park.
They weren’t singling out, one or two or three.
Unknown Speaker: Mr. Gottlieb, on that point, you mentioned 11,000 earlier is that 11,000 population or 11,000 houses?
Mr. Myron H. Gottlieb: 11,000 residences, Willingboro has approximately 45,000 people.
Unknown Speaker: So, that if we had 230 signs out of 11,000 that is one out of every 45 or 50.
Mr. Myron H. Gottlieb: If it in fact the….
Unknown Speaker: Even if it was twice that many, it would be one out of every 25 houses, is that of course?
If even they are twice as many as 230 that would be one out of every 25 houses.
Mr. Myron H. Gottlieb: Well, let’s assume that the statements made, not subject to a cross-examination, this is based at a public hearing we are accurate and again the statements made at taking a survey in January.
But let’s assume that they are accurate, if in fact and it's quite clear that the various residents of the community stood up and protested about forest of ‘For Sale’ signs.
Who am I to say that eight is forest for my street and two is not or is six a forest and a 11 or just what one, I can’t say that they were uniformly distributed where a home had perhaps or a street had perhaps 50 residences along it, and it hit precisely every twentieth home or at this end of the street, we had six among these ten homes but none of them to balance the street or maybe one….
Unknown Speaker: Mr. Gottlieb, these figures came from the people who support the ordinance, right?
Mr. Myron H. Gottlieb: That is wrong.
These figures came from a realtor who stood up and opposed the ordinance at the first public hearing and said, ”my firm took a survey”, and these are the results of that survey.
Unknown Speaker: Are you talking about the number of signs.
Mr. Myron H. Gottlieb: That is correct, Sir
Unknown Speaker: Well do you have any to contradict that?
Mr. Myron H. Gottlieb: I can only indicate it to you, Your Honor.
Unknown Speaker: Do you have any figures in the record to contradict that?
Mr. Myron H. Gottlieb: There is nothing in the record other than when one of the councilman who was testifying was questioned about it, he said, we had figures which we considered in making our determination or arriving at our judgment.
I do not recall the figures nor do I have them available here in court and this is at the trial level.
Unknown Speaker: But, the only figures we have a 200 in this record.
Mr. Myron H. Gottlieb: That is correct sir….
Unknown Speaker: Alright, that’s the forest.
That is the forest.
Mr. Myron H. Gottlieb: The forest is the impression of signs by the residents of Willingboro, the public itself perceived the ‘For Sale’ signs, yes Sir, whether or not we had how many signs, I don’t know, the only indications as to number of signs however, clearly came from the realtor who stood up in opposition.
Unknown Speaker: Well, since November, around this area, we have had a all other signs up too.
Should we panic?
Mr. Myron H. Gottlieb: I perhaps – sounds this like an inside joke, I…
Unknown Speaker: Well since the change of administration…
Mr. Myron H. Gottlieb: Yes sir.
Unknown Speaker: There have been a lot of ‘For Sale’ signs in every neighborhood in this town.
We haven’t granted it.
We are uptight about it.
Mr. Myron H. Gottlieb: I don’t know the community conditions in the District of Columbia, but here is a legislative decision made as to what they want or what they don’t want.
But if, in fact it were to appear to those people in authority able to make that decision, that in fact, there were a widespread panic selling atmosphere in the District of Columbia.
If, in fact the authorities, whomever then may be were determine that it is appropriate to respond to that, in order to maintained the stability in the community and I use stability in solely in the sense, that one does not want to leave Willingboro or the District of Columbia, solely out of fear and that’s the way, I believe it was used in the context of this case.
That in that situation, it would present the identical issue posed to the Court in this case, that in fact, we do have because of the way the public perceives it, a situation which is inimical to the Public Health and Welfare.
The argument of Council that indeed the ordinance has been utilized to discriminate against minorities is clearly erroneous.
Council have suggested in their brief that because we are prohibiting ‘For Sale’ signs, that itself means that we are trying to keep minorities or anyone out.
But the absence of signs in and of themselves, don’t control who moves in, because of the absolutely effective alternate means of communication, couple that with the fact that the testimony even of Mr. Mellman, the plaintiff in this case, or the petitioner here was to the effect that even though we have signs prohibited...
Unknown Speaker: Let me question here, absolutely affective alternate means of communication today, now you are suggesting from the point of view of the seller, he can communicate his willingness to sell, by advertising and listing, but what about the prospective buyer who drives into a neighborhood and says I may move in to this block.
I am curious to know how many people are selling, is it a stable community, or it is one that’s changing?
How does he get the message that he would get if there were signs upfront?
Mr. Myron H. Gottlieb: That person spends 15 cents, buys a newspaper, scans the ‘Home For Sale’ column in the newspaper.
Unknown Speaker: But does the records.
Mr. Myron H. Gottlieb: At first, he has gone to a realtor and look at the Multiple Listing Service Booklet which lists every home for sale in Willingboro by park and style of home, colony or…
Unknown Speaker: By block, he get all the homes in a given block.
Mr. Myron H. Gottlieb: Well, I don’t know, if it breaks it down to a particular block but I do know it breaks it down to a park, and in Willingboro, the park system is such that if you live in Pennypacker, all the streets in that park begin with the letter P.
If you live in another one, in and so on, so that one could find out, if not that particular street without going through the entirety of Pennypackers listing, one could easily find out at least the neighborhood.
Unknown Speaker: Is it as easy as driving around the street in the car on a Sunday afternoon.
Mr. Myron H. Gottlieb: I would assume it is much easier to spend five minutes sitting at a desk than to drive through an entire community of 45,000 people.
Unknown Speaker: No, I am just talking, do you have a block in mind that you are interested in, you want to know how many houses are for sale, you go to real estate agent, it is basically what you are saying.
Mr. Myron H. Gottlieb: You can do that or look at a classified section in the newspaper under the ‘Homes For Sale’ column.
Unknown Speaker: Well, but you don’t suggest that all homes for sales or all those listed in every edition in the newspaper.
Mr. Myron H. Gottlieb: No, but perhaps that might give one an indication.
Unknown Speaker: But you suggest, there’s incomplete information is perhaps just as good as complete information.
Well that’s -- I would try.
Mr. Myron H. Gottlieb: It is ironic in response to your question perhaps that there is no home seeker who is a plaintiff in this particular case, that we don’t have a complaint from someone who wants to move in, in detail, we have a complaint from a realtor whose livelihood is the earning of commissions from sale realty and a corporation whose income is attributed to the turnover of real estate.
That’s all we have here.
Unknown Speaker: But the challenge, I suppose, is that there are different people buying homes who might buy them were not for this ordinances.
That’s the whole purpose of the ordinance, is that the hope that there will be more sales to whites than there will be to blacks.
Mr. Myron H. Gottlieb: No Sir, no Sir, the entire purpose...
Unknown Speaker: Or it is that there wont be a disproportionate number to blacks, would be a more accurate way to put it.
Mr. Myron H. Gottlieb: No Sir, Willingboro does not want to say who can move into town, the testimony of the witnesses is clear to that, un-contradicted, the history of Willingboro has been..
Unknown Speaker: But, what were they still afraid of then, what is all this fear?
Mr. Myron H. Gottlieb: The fear is among the present residents of Willingboro who are moving not because they have been transferred to wallow-wallow (ph) or because of the change in their family size or financial considerations or other things like that.
They are moving because they have got this (Inaudible) that says, I got to get out before it is too late.
Unknown Speaker: Too late in what sense?
Mr. Myron H. Gottlieb: They are afraid that in fact, they will be left in a community which has change and by reacting to that they are encouraging that.
Unknown Speaker: You mean, they are afraid that value of their property will substantially decrease?
Mr. Myron H. Gottlieb: They may, I cannot distinguish between the value, it's entirely an irrational process but I cannot distinguish between a person wanting to get out, out of fear and say how much of that he attributes to a decrease in value, how much of it he does it because he does not like to live in an integrated community, how much of it he attributes because he dislikes minorities.
Unknown Speaker: Well, Willingboro is an integrated community I –
Mr. Myron H. Gottlieb: Willingboro is an absolutely integrated community, block by block.
Unknown Speaker: Presumably, people who live there are, he say, I do not like it, they are at least quite willing to live in one, I think.
In an integrated community, you mean all one race community.
Mr. Myron H. Gottlieb: They maybe fearful that they, -- the residents maybe left with the situation that in fact a community might be all of –
Unknown Speaker: A predominantly one race.
Mr. Myron H. Gottlieb: Predominantly, one race and I cannot by the way say that this fear is exclusively confined to white, the majority, this fear is -- it's a part of being human and we are all human.
Unknown Speaker: And that if you walk down, where is this place, is it near Bordentown?
Mr. Myron H. Gottlieb: It is about a 15 minutes drive, I live in Willingboro, my office is in Bordentown and it is about a 15 minutes drive on the Interstate Highway.
Unknown Speaker: I thought I knew that area, I have never hear it.
Mr. Myron H. Gottlieb: Willingboro is rather.
Unknown Speaker: It is just 15 minutes.
Mr. Myron H. Gottlieb: Yeah, approximately.
Unknown Speaker: Of course, have you went through it?
Mr. Myron H. Gottlieb: Perhaps Sir.
I just want to make it absolutely clear, however that in fact the action of Willingboro was not to affect prospective, as shown by the statistics because it did not have that impact but present residents of the community.
As to the First Amendment argument, obviously petitioners contend there is a violation.
It is Willingboro’s response that there must be although, commercial speeches not wholly outside of the protection of the First Amendment, there must be afforded a lesser degree of protection and that is based on the court’s recognition, I believe, I am quoting from Virginia Pharmacy of the common sense differences between commercial speech and philosophical or economic or political speech or newspapers or anything like that and indeed the court itself has long recognized the obvious distinction in a billboard situation.
I need only refer back to Packer Versus Utah, which I believe is a case out of the early 1930s.
The Court has continued to recognize that and I might refer to the concepts developed in Lehman V. Shaker Heights, where the community in Willingboro situation is having this trust upon concept, forest of signs.
If in fact, you as a Judge, may not believe that 200 and some signs is sufficient to create a forest.
I would submit that if in fact because of the way the public perceives it, if in fact they believed they are to be a forest of signs.
If in fact they reacted out of fear, if they were dominated by this fear, they are the determining guidelines as to determine whether or not the signs had this impact.
With respect of the First Amendment, it clearly shows there was a deceptive impact.
The signs were the catalyst for a process of resegregation.
Chief Justice Warren E. Burger: Your time is expired Mr. Gottlieb.
Mr. Myron H. Gottlieb: I thank the Court then.
Chief Justice Warren E. Burger: Do you have anything further?
Rebuttal of John P. Hauch, Jr.
Mr. John P. Hauch, Jr.: Mr. Chief Justice, I would just like to in response to Mr. Justice Stewart’s enquiry with respect to the record on the ordinance 551 point, there are in a residential zone permitted specific recreational activities of a private nature, I am referring to A-14, Page of the Appendix which contains the ordinance.
On Page A-14, in Section 6.4, we see that there are permitted signs advertising a golf course, county club, private swimming club.
I suppose that would include swim for dollar a day, Marina, (Inaudible) I suppose, that would include for both, tennis court $2 an hour, $5 an hour to play, suppose that would be permitted and also a question in trials advertising private stable, and suppose you advertise a ‘Stable for rent’.
So the permission is granted to some private activities, I wanted to clarify the record on that point, also of the commercial nature.
Unknown Speaker: Under compulsion of the Supreme Court of the State, regardless of what the ordinance may say it's clear that political advertising.
Mr. John P. Hauch, Jr.: When the Supreme Court, Your Honor it was a Trial Court but he is very well in his opinion at New Jersey.
Unknown Speaker: Willingboro is on defendant has differ to that decision in holiday.
Mr. John P. Hauch, Jr.: The ordinance does not say so but they have certain fact.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.