Mature Person Preferred: The Circuit

Split on the Ordinary Reader Standard

for Advertisements in Violation of the
Fair Housing Act

HEATHER G. REID

ABSTRACT
A FAMILY SIZE OF 2 PEPOLE [sic] ONLY!!!!!!!! WE MUST
HAVE 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 bedroom
apartments are a great bachelor pad for any single man looking
to hook up

These housing advertisements are not facially discriminatory nor do

they indicate subjective intent to discriminate, but all violate
3604(c) of the Fair Housing Act.
The Fair Housing Act, enacted in 1968, prohibits discriminatory
housing 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 a
persons race, color, religion, sex, familial status, or national origin. The
law was intended to eliminate the pervasive problem of housing
discrimination, as well as promote integrated housing.
Litigation under 3604(c) has addressed such questions as: which
persons and entities have standing to sue; whether persons or entities
exempt under other sections of the FHA are nonetheless liable under
subsection (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.

697

698

New England Law Review

v. 49 | 697

includes newspapers and other publishing media. In contrast to the variety

of decisions on the complex issue of standing, for example, cases
employing the ordinary reader standard have not stretch[ed] the
understanding of 3604(c)s basic applicability to discriminatory
advertising beyond the standards first application in United States v.
Hunter.
This Note argues that the proper ordinary reader standard applied in
interpreting violations of 3604(c) omits the discourage language
employed by the Second and Seventh Circuits. A standard that considers
only whether an ordinary reader would find an ad indicates a
preference based on one of the statutes prohibited factors adheres to the
legislative intent and plain meaning of 3604(c) without extending
beyond its constitutional constraints. Additionally, this Note examines the
tension between online housing websites and 3604(c)s advertising
prohibitions and argues that a standard absent the discourage language
is best equipped to evaluate online advertisements.

INTRODUCTION

FAMILY SIZE OF 2 PEPOLE [sic] ONLY!!!!!!!! WE MUST

HAVE A WORKING COUPLE WITH 2 INCOMES;1
Christian landlord is living in one of the units;2 599/1br
Great Bachelor Pad! (Centerville). Our one bedroom apartments are a great
bachelor pad for any single man looking to hook up3; NORTHLAKE
deluxe 1 BR apt, a/c, newer quiet bldg, pool, prkg, mature person
preferred, credit checked. $3954these housing advertisements are not
facially discriminatory, nor do they indicate a subjective intent to
discriminate, 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-kidstenants/.
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).
Jancik 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 were
able to accommodate more than one occupant).
4

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

2015

M a t u r e P e r s o n P r e f e r r e d

699

The Fair Housing Act (FHA), enacted in 1968, prohibits

discriminatory housing practices by making it unlawful to refuse to sell or
rent . . . or to refuse to negotiate for the sale or rental of . . . a dwelling
based on a persons race, color, religion, sex, familial status, or national
origin.6 The law intended to eliminate the pervasive problem of housing
discrimination, as well as promote integrated housing. 7
Section 3604(c) of the FHA contributes to the eradication of housing
discrimination by prohibiting discriminatory advertising practices.8 The
statute applies to the sale or rental of housing and to all publishing
mediums, including newspapers.9 Specifically, it prohibits the printing or
publishing of statements and advertisements for the sale or rental of
housing that indicate any preference, limitation, or discrimination based
on race, color, religion, sex, handicap, familial status, or national origin.10
For advertisements that are not facially discriminatory or do not have a
clear subjective intent to discriminate, but rather are alleged to indicate a
preference, the circuit courts apply what has been termed the ordinary
reader standard.11
Litigation under 3604(c) has addressed such questions as: which
persons and entities have standing to sue; 12 whether persons or entities
exempt under other sections of the FHA are nonetheless liable under
subsection (c) for discriminatory statements, notices, or advertisements; 13
and 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).

Hous. Opportunities Made Equal, Inc. v. Cincinatti Enq., Inc., 943 F.2d 644, 652 (6th Cir.
1991).
7

42 U.S.C. 3604(c).
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).
9

10

42 U.S.C. 3604(c).
Ragin v. New York Times Co., 923 F.2d 995, 9991000 (2d Cir. 1991); accord Miami Valley
Fair Hous. Ctr., Inc. v. Connor Grp., 725 F.3d 571, 577 (6th Cir. 2013).
11

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).

700

New England Law Review

v. 49 | 697

includes newspapers and other publishing media.14 In contrast to the

variety of decisions on the complex issue of standing for example, 15 cases
employing the ordinary reader standard have not stretch[ed] the
understanding of 3604(c)s basic applicability to discriminatory
advertising beyond the standards first application in United States v.
Hunter.16 Specifically, the human-models cases (Ragin v. New York Times
Co. and a series of other cases which challeng[ed] the exclusive use of
white human models in real estate ads17) defined the standards for
assessing this type of advertising, but also reinforced the concept that the
indicates language in 3604(c) did not require a showing of
discriminatory intent to be in violation of that provision. 18 Yet, the ordinary
reader standard articulated in Hunter remained ostensibly unaltered.19
The ordinary reader standard is not a mechanical test, but rather a

14 Danne, supra note 12, 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 see Mich. 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 the
Fair Housing Acts Most Intriguing Provision, 29 FORDHAM URB. L.J. 187, 222 (2001).
17

Id.
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 note 16, at 222 n.155.
18

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).

2015

M a t u r e P e r s o n P r e f e r r e d

701

standard that asks whether an objective ordinary reader would understand

an advertisement to suggest a preference for or against a protected group.20
Both the Second and Seventh Circuits read the word preference, as it is
used in 3604(c), to describe any ad that would discourage an ordinary
reader of a particular [protected group] from answering it.21 In contrast,
the Sixth Circuit expressly declined to follow the Second and Seventh
Circuits interpretation, asserting that discourage was not synonymous
with preference and there was no textual support in 3604(c) for reading
that language into the ordinary reader standard.22
This Note argues that the proper ordinary reader standard to be
applied in interpreting violations of 3604(c) is one which omits the
discourage language employed by the Second and Seventh Circuits. A
standard that considers only whether an ordinary reader would find an ad
indicates a preference based on one of the statutes prohibited factors
adheres to the legislative intent and plain meaning of 3604(c), without
extending beyond its constitutional constraints. Additionally, this Note
examines the tension between online housing websites and 3604(c)s
advertising prohibitions and argues that a standard absent the
discourage language 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 indicates
a preference based on one of the prohibited factors. Part II discusses the
development of the ordinary reader standard and the current circuit split
between the Sixth Circuit and the Second and Seventh Circuits. Part III
argues that the Sixth Circuits understanding of the ordinary reader
standard is more suitable for determining violations of the FHA because it
adheres to both the legislative intent and plain meaning of the statute, and
further, avoids an overly broad restriction on free speech. Part IV discusses
online advertisements for housing and argues that the discourage
language in the Second and Seventh Circuits ordinary reader standard is
unworkable 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

See Ragin, 923 F.2d at 100102.

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

22

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

702

New England Law Review

v. 49 | 697

Act, prohibits discrimination in housing.23 Under the Act, it is unlawful to:

refuse to sell or rent after the making of a bona fide offer, or to refuse to
negotiate 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 discrimination
pervaded the country as one of the most deeply entrenched aspects of
racial subordination.25 Housing discrimination dramatically limited or
eliminated minorities access to housing in predominantly white areas; it
also took form in post-move discrimination26 and was the most
ubiquitous, deeply rooted civil rights problem in the nation.27
The fair housing movement developed in the 1940s and became more
active in the post-war period.28 By the 1960s most states had enacted
some form of legislation prohibiting housing discrimination.29 Longoverdue federal legislation followed with the Fair Housing Act of 1968.30
The Act was amended in 1974 to include sex31 and in 1988 to include
familial status within the list of prohibited bases of discrimination.32

23

42 U.S.C. 360119 (2012).

Id. 3604(a). Section 3604 also prohibits the discrimination against any person because
of race, color, religion, sex, familial status, or national origin 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).
24

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 See Fair Housing Act, Pub. L. No. 90-284, 82 Stat. 81 (1968) (codified as 42 U.S.C. 3601
19 (2006)).
31 See Housing 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); see 42 U.S.C.
3604.

2015

M a t u r e P e r s o n P r e f e r r e d
1.

703

Section 3604(c) of the Fair Housing Act

Section 3604(c) of the Fair Housing Act prohibits discriminatory

notices, statements, and advertising.33 The statute makes it unlawful to:
make, print, or publish, or cause to be made, printed, or
published any notice, statement, or advertisement, with respect
to 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 to
make any such preference, limitation, or discrimination. 34

The prohibition on discriminatory advertisements for the sale or rental

of housing applies to all publishing mediums, including newspapers. 35
Congresss particular concern for discriminatory housing statements is
evident in its decision to exclude 3604(c) from the Fair Housing Acts
traditional exemptions.36 Thus, all discriminatory statements, including
those made by small housing providers and Mrs. Murphy-type37 landlords,
are barred.38
A 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 published a barred statement or advertisement; 2) the defendants act
must involve a notice, statement, or advertisement; 3) with respect to
the sale or rental of a dwelling; and 4) that notice, statement, or

33

42 U.S.C. 3604(c).
Id.
35 See United 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 homes
which 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, supra note 16, at 192.
34

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.L L. 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, supra note 16, at 192.

704

New England Law Review

v. 49 | 697

advertisement must indicate [a] preference, limitation, or discrimination

or an intention to make [a] preference, limitation, or discrimination
based on a prohibited ground.39 Therefore, a proper defendant is any
person or entity who engages in the unlawful actions identified in
subsection (c).40 Typically, the targets of 3604(c) claims are persons
engaged in the sale or rental of housing . . . and . . . newspapers and other
advertising media that make print or publish the offending material of
others.41
A violation can be established either by proving an actual intent to
discriminate or by showing that an ordinary reader would interpret the
advertisement 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 to
establish liability sets 3604(c) apart from other FHA provisions that
require a showing of discriminatory intent. 43 The indicates language has
been interpreted by the courts44 to mean that the statute is violated if the
notice, statement, or advertisement indicates discrimination to an ordinary
reader, regardless of the defendants intent.45 This objective ordinary
reader standard has been adopted in every circuit that has heard a
3604(c) claim.46

39

42 U.S.C. 3604(c); see Schwemm, supra note 16, at 21316.

Schwemm, supra note 16, at 214 n.110.
41 Id. at 214.
42 See Hous. Opportunities Made Equal v. Cincinnati Enquirer, Inc., 943 F.2d 644, 646 (6th
Cir. 1991).
40

43

Schwemm, supra note 16, at 21516.

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, supra note 16, at 215.
46 See Jancik 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 and Mayers v. Ridley in the D.C. Circuit. Schwemm, supra note 16, at 21619; 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).
44

2015

M a t u r e P e r s o n P r e f e r r e d

705

II. The Ordinary Reader Standard for Fair Housing Advertisements

A. The Second and Seventh Circuits Ordinary Reader Standard for
Determining 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 York
Times (the Times) was alleged to have published housing
advertisements over a twenty-year span that predominantly featured only
white models depicted as potential homeowners or renters. 48 The plaintiffs,
individuals who had been looking for housing in the New York area and a
non-profit, Open Housing Center Inc., brought an action under the FHA,
42 U.S.C. 3604 (a) and (c).49 The plaintiffs claimed that because the models
represented the desired renters or buyers for the real estate advertised, the
Times repeated and continued depiction of white human models and the
virtual absence of any black human models . . . indicates a preference on
the basis of race.50
In examining the language of 3604(c), the Second Circuit court 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.51 The court focused on the words indicate[] and
preference, reasoning that because the language of 3604(c) was broad,
the ordinary reader standard should not be so intolerably narrow as to
only hold publishers liable where the advertisement facially suggests to the
reader a racial preference.52 Instead, preference described any ad that
would discourage an ordinary reader of a particular race from responding
to a housing advertisement.53 Therefore, under the Second Circuits
standard, 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.
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 . . . .).
49

706

New England Law Review

v. 49 | 697

understand the ad as suggesting a racial preference.54

The Second Circuit held that the plaintiffs claim could not be
dismissed for failure to state a claim for relief.55 The court specified that the
notice, statement, or advertisement prohibitions under 3604(c) applied
only to individual advertisers and the Times liability could not be
established upon an aggregat[e] of advertisements by different
advertisers.56 Further, the court rejected the Times argument that
3604(c) violated the First Amendment, finding that the statute was not void
for vagueness and did not place an unconstitutional burden on the free
press.57
2.

Seventh Circuit: Jancik v. Department of Housing and Urban

Development

In Jancik v. Department of Housing and Urban Development, the Seventh

Circuit adopted the objective ordinary reader standard for determining
whether an advertisement for housing violated 3604(c)s prohibition of
indicating a preference or limitation based on race or family status. 58 At
issue: a determination by the Department of Housing and Urban
Development (HUD) against Stanley Jancik, owner of a large housing
complex in suburban Chicago.59 HUD claimed that Janciks ad in a local
suburban newspaper violated 804(c) of the Fair Housing Act by
indicating a preference based on race and family status.60 The ad read:
NORTHLAKE deluxe 1 BR apt, a/c, newer quiet bldg, pool, prkg, mature
person preferred, credit checked. $395.61 Jancik appealed the
Administrative Law Judges order finding that he had violated 3604(c) by
indicating 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.
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.).
57

58

44 F.3d 553, 556 (7th Cir. 1995).

Id. at 55455.
60 See id.
61 Id. at 554.
62 See id. at 555.
59

2015

M a t u r e P e r s o n P r e f e r r e d

707

The Seventh Circuit centered its analysis on whether the advertisement

at issue indicated a preference based on family status. 63 To determine the
proper interpretation of 3604(c)s indicates language 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 an
ordinary reader that a particular [protected group] is preferred or
dispreferred for the housing in question.65 Specifically, there is no
requirement to show a subjective intent to discriminate or for the ad to
jump out at the reader with [the] offending message.66 Rather, the
Seventh Circuit emphasized Ragins holding that 3604(c) is violated if an
ad discourages an ordinary reader of a particular group from responding. 67
Under the ordinary reader standard, the mature person preferred
language in Janciks advertisement indicates a discriminatory and
unlawful preference in violation of the statute.68 Therefore, the Seventh
Circuit upheld the Administrative Law Judges order.69
B. Miami Valley Fair Housing Center, Inc. v. Connor Group: the
Sixth Circuit Declines to Follow the Second and Seventh Circuits
1.

Housing Opportunities Made Equal, Inc. v. Cincinnati

Enquirer, Inc.

The Sixth Circuit, in Housing Opportunities Made Equal, Inc. v. Cincinnati

Enquirer, Inc., also adopted the ordinary reader standard for determining
whether an advertisement for housing is unlawful under the FHA. 70 A
human-models case, the facts in Housing Opportunities closely resembled
Ragin.71 A non-profit organization, Housing Opportunities Made Equal
(HOME), alleged that the Cincinnati Enquirer violated 3604(c) by
publishing real estate advertisements that, in the aggregate, indicated a

63

See id. at 556.

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.).
64

65

Id. (quoting Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991)).
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).
66

69

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

708

New England Law Review

v. 49 | 697

racial preference for whites.72 While the Sixth Circuit adopted the ordinary
reader standard for determining violations of 3604(c), it did not apply it
in 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 Opportunities
reasoning in adopting the ordinary reader standard, but ultimately
declined to follow the Second and Seventh Circuits interpretation of the
standard.74
2.

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

In Miami Valley Fair Housing Center, Inc. v. Connor Group, the Sixth
Circuit relied on the Housing Opportunities opinion and reasoning for
adopting the ordinary reader standard, but declined to incorporate the
discourage language used in the Second and Seventh Circuits analyses.75
The Miami Valley Fair Housing Center (Miami Valley), a fair-housing
organization operating in Montgomery County and surrounding counties
in Ohio, brought suit against the Connor Group, owner and manager of
rental units nationwide, for violations of the FHA and Ohios housing
statute.76 In May of 2009, a listing agent had posted a rental ad on Craigslist
reading: 599/1brGreat Bachelor Pad! (Centerville) Our one bedroom
apartments are a great bachelor pad for any single man looking to hook
up.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 Valley
alleged that this ad, along with thirteen other similar ads, violated 3604(c)
and Ohios Revised Code 4112.02.79 Miami Valley argued that the ad
was facially discriminatory to families and women.80 The 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 infra Part 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.
Id. at 575.
78 Id.
79 Id.
80 Id.
77

2015

M a t u r e P e r s o n P r e f e r r e d

709

standard to determine whether an ordinary reader who is a member of a

protected class would be discouraged from answering the advertisement
because 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 court
distinguished its application of the standard by declining to follow the
Seventh and Second Circuits interpretation, which required an
advertisement to discourage an ordinary reader of a particular class.84
The court agreed with Housing Opportunities that the language of 3604(c)
was purposely broad and did not require a mechanical test to determine
whether an advertisement is discriminatory;85 rather, an ad violates the
statute if it suggests to an ordinary reader that a particular group is
preferred or dispreferred for housing because of a prohibited factor listed
in the statute.86
However, the Sixth Circuit reasoned that the discourage language
included in the Second and Seventh Circuits standards created potential
First Amendment concerns of an overly broad restriction on speech.87
Under 3604(c), an advertisement for housing is considered unlawful if it
indicates any preference based on a prohibited factor.88 The Miami Valley
court disagreed with Ragin and Jancik, asserting that preference, the
word used in the Fair Housing statute, and discourage, the word used in
the Second and Seventh Circuits standard, were not synonymous with one
another.89 The leap from preference to discourage had no textual
support in 3604(c), and further, the Ragin and Jancik opinions provided no
reasoning to support it.90 The Sixth Circuit thus consider[ed] only whether
an ordinary reader would find that the advertisement indicates a

81

Miami Valley, 725 F.3d at 575 (emphasis added).

Id. at 576.
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)).
82

86

Id. (citing Ragin v. New York Times Co., 923 F.2d 995, 999 (2d Cir. 1991)).
Miami 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.).
87

88

42 U.S.C. 3604(c) (2012).

Miami Valley, 725 F.3d at 577.
90 Id. at 57778.
89

710

New England Law Review

v. 49 | 697

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

ANALYSIS
III. The Circuit Split on 3604(c)s Ordinary Reader Standard
A. Legislative Intent and Plain Meaning of the Text of 3604(c)
Necessitates an Ordinary Reader Standard Which Considers Only
Whether a Housing Advertisement Indicates a Preference
In determining whether a housing advertisement violates the FHA
under 3604(c), courts should only consider whether an ordinary reader
would find that the ad indicates a preference based on one of the statutes
prohibited factors.93 A standard, which finds the statute is violated by any
ad that would discourage an ordinary reader of a particular [protected
group] from answering it,94 effectively replaces indicates a preference
with a broader restriction that has no textual support in the language of
3604(c).95 The correct ordinary reader standard omits the discourage
language adopted by the Second and Seventh Circuits, thereby allowing
the 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 to
broaden its scope since the enactment of the FHA in 1968.97 There is neither
legislative history concerning 3604(c), nor are there statements stemming
from Congresss floor debates about the specific provision.98 Therefore,
courts have relied almost exclusively on the plain meaning of the language
in the statute in determining the scope and application of 3604(c). 99 The
91

Id. at 578.
Id. at 581.
93 See id. at 57778.
94 Jancik 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 Miami Valley, 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 reader standard which asks only whether an ordinary
reader would find that the particular advertisement or statement indicates a preference against
renting to a protected group.) (emphasis added).
92

97

See Schwemm, supra note 16, at 20004.

Id. at 19899.
99 See id. at 199.
98

2015

M a t u r e P e r s o n P r e f e r r e d

711

result is that courts interpret and apply the language of the provision
broadly.100
The objective ordinary reader standard is effective because it
responds to the problem of defining discriminatory injury absent
subjective intent101the statute prohibits subtle expressions of
discriminatory purpose, regardless of whether the ad is facially
discriminatory or the defendant engaged in intentional discriminatory
conduct.102 After the Hunter decision,103 more subtle advertising, like the
ads litigated in the human-models cases, which deterred protected
groups through suggestive images, replaced widespread, blatantly
discriminatory advertisements.104 These types of ads are still proscribed
under 3604(c) because the ordinary reader standard determines liability
based on the advertisements discriminatory meaning (what the
advertisement indicates to the reader) and not the actors conscious
purpose.105 The standard does not require discriminatory intent be in the
actors conscience at all.106 Section 3604(c) is unique in this regard; it
accounts for unconscious racism, whereas other areas of the law require
a showing of discriminatory intent. 107
Additionally, the standard furthers the public policy behind the
provision: housing advertisements that convey to a reader that certain
groups are unwelcome are detrimental to our society and 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 See Jessie Allen, A Possible Remedy for Unthinking Discrimination, 61 BROOK. L. REV. 1299,
1329 (1995).
102 See Danne, supra note 12, 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

See Allen, supra note 101, at 1301.

See id. 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.).
106

712

New England Law Review

v. 49 | 697

purpose of the FHA.108 This could not be achieved if courts were to require
proof of discriminatory intent or narrowed the standard to proscribe only
facially discriminatory ads.109
In Ragin, the Second Circuit drew support from the broad and
inclusive plain language of 3604(c) and applied the objective ordinary
reader standard to determine what is indicated by an advertisement.110
The court determined that the intended meaning of the word preference,
as used in the provision, describe[d] any advertisement that would
discourage an ordinary reader of a particular protected class from
answering it.111 In applying the standard as an example, the court
suggested that if an advertiser created ads that discouraged potential
consumers 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 indicates
aspect of 3604(c), and adopted verbatim Ragins interpretation of the
ordinary reader standard.113 The court lifted the language from the Ragin
opinion: an ad did not need to jump out at the reader with an offending
message (facially discriminatory), but merely discourage an ordinary
reader of a particular protected group from answering it.114
However, while it is well established that indicates any preference
does not require an advertisement to contain an explicit message or
intentional 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 See Ragin 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.
Jancik 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 Ragin case); Housing Opportunities, 943 F.2d at 646
(same).
113

114

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

2015

M a t u r e P e r s o n P r e f e r r e d

713

not prohibited if it discourages an ordinary reader.115 Just as the plain

language of the provision does not support a narrow interpretation of its
meaning,116 it does not support an intolerably broad interpretation either.117
The Sixth Circuit in Miami 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-reader
analysis.119 Further, neither the Ragin nor Jancik opinions provide any
explanation for this leap.120 Section 3604(c) makes it unlawful to make,
print, or publish an advertisement that indicates a preference.121 Ragin
and Jancik interpret preference and discourage as equivalent.122 But the
word preference, as used in the FHA, is not synonymous with
discourage.123 The Second and Seventh Circuits requirement that an ad
discourage an ordinary reader effectively replaces the verb indicates.124
Reconfiguring 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 Miami Valley, 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; see infra note 123.
120 Miami Valley, 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 particular
race is preferred or dispreferred for the housing in question for the statute to be violated.
Ragin, 923 F.2d at 999.
122 See Jancik 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 See supra 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)).

714

New England Law Review

v. 49 | 697

actor, rather than focusing on the meaning of the advertisement itself as

indicated to an ordinary reader.125 Augmenting the standard with
discourage surpasses the parameters of 3604(c)s plain meaning by
altering the action prohibited under the provision,126 thereby broadening
the scope of the statute.127
Furthermore, a standard that includes discourage is problematic
because it will likely result in confusing, misleading, and prejudicial128
jury instructions.129 In Miami Valley, the jury instructions asked: whether
the message [conveyed by the advertisement] focuses on the suitability of
the property to the renter, which is permissible, or whether it
impermissibly focuses on the suitability of the renter to the owner.130 The
suitability inquiry, as articulated in Metropolitan Milwaukee Fair Housing
Council v. Labor & Industry Review Commission, and again in Miami Valley,
would find many ads to be permissible that in fact violate the [FHA].131
Jurors 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, a
single man.132
The inclusion of discourage can, on one hand, broaden 3604(c)s
restrictions to bar otherwise permissible advertisements;133 while applying
the suitability inquiry may render instructions that would lead jurors to
erroneously hold in favor of ads that violate the FHA. 134 Both 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 See Miami 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 Miami Valley, 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 Commission which 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.
Id.
133 See supra notes 128132 and accompanying text.
134 See Miami Valley, 725 F.3d at 580.
132

2015

M a t u r e P e r s o n P r e f e r r e d

715

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

Conversely, proponents of the Second and Seventh Circuits standard
may argue that restricting the inquiry, to only whether an advertisement
indicates a preference, is in opposition of the FHAs policy of
promoting fair housing practices to the fullest extent allowable under the
Constitution.136 In the early 1990s, the human-models cases generated
arguments that FHAs prohibitive scope should extend beyond these
constitutional constraintsthis was the only way to adequately confront
prevalent housing discrimination and the dominance of white images in
housing advertising.137
Though courts have continued to broaden 3604(c) since the
enactment of the FHA, the statutes prohibitive scope must have an end
point.138 Augmenting the analysis to consider whether an ad discourages
a reader139 and further, to consider the race of the particular litigant,140 will
generate an impermissibly strict prohibition and result in inconsistencies.141
The exclusive use of white human-models in real estate ads is no
longer the subject of 3604(c) claims.142 The housing landscape has
changed: the Internet has become the primary resource for those seeking
and advertising housing.143 Current discriminatory advertisements are not
consistently anti-minority144 and the most common basis for discrimination

135

See supra notes 125127 and accompanying text.

See Wilemon, supra note 9, 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). Contra Hous. 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).
136

138

See Schwemm, supra note 16, at 20004.

See Jancik v. Dept of 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).
139

141 See Plummer, supra note 104, at 180 (discussing proposed solutions to the ordinary
reader standard).
142

See Schwemm, supra note 16, at 223.

See infra note 187 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.).
143

716

New England Law Review

v. 49 | 697

in real estate advertising is familial status. 145 [T]he discrimination runs in

all directions,146 and the statute must accommodate its intended
beneficiaries: the entire community.147 Therefore, 3604(c) requires an
analysis that is able to balance Congress goal of integrated communities148
with a consistent evaluation of discriminatory advertisements. 149
Consequently, the proper ordinary reader standard omits the discourage
language and inquires only whether an advertisement indicates to an
ordinary reader a preference based on a prohibited factor.150
B. The Proper Ordinary Reader Standard Omits DiscourageThis
Construction Avoids an Overly Broad Restriction of Speech
Courts determining 3604(c) violations occasionally confront
arguments that the statute, because it restricts certain types of
communication, intrudes on the First Amendments protection of free
speech and expression.151 Courts have so far rejected these defenses,
holding that the limits placed on communications by 3604(c) do not
violate the First Amendment.152 However, a 3604(c) analysis that inquires
whether an ad discourages an ordinary reader would generate valid First
Amendment concerns.153 This construction of the ordinary reader standard
creates an overly broad restriction on speech; therefore, the Second and
Seventh Circuits discourage language should be omitted.154
The Fourth and Second Circuit courts specifically rejected First
Amendment defenses in Hunter and Ragin, declining to hold that an
otherwise unlawful communication under 3604(c) [was] protected by
the First Amendment.155 Hunter upheld the district courts finding that
3604(c) did not contravene the First Amendment, reasoning that a
newspaper will not be insulated from the otherwise valid regulation of

145

Id. at 114647.
Id. at 1148.
147 See 114 CONG. REC. 2705, 270507 (1968) (statement of Sen. Javits).
148 See Schwemm, supra note 16, at 213.
149 See Miami 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)).
146

150

See id.
Schwemm, supra note 16, at 267.
152 Danne, supra note 12, 3(a).
153 See Miami Valley, 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 note 16, at 267 & n.372.
151

2015

M a t u r e P e r s o n P r e f e r r e d

717

economic activity merely because it also engages in constitutionally

protected dissemination of ideas.156 Likewise, the Second Circuit in Ragin
found that the ordinary reader standard provided adequate notice of the
prohibited conduct and that the Supreme Court affords less protection to
commercial speech than to other forms of expression. 157 The Second Circuit
upheld the lower courts determination that discriminatory housing
advertisements, by indicating a racial preference, further an illegal
commercial activity.158
Alternatively, the Sixth Circuit has interpreted 3604(c) in a way that
aims to avoid possible First Amendment problems. 159 In a human-model
case similar to Ragin, the court in Housing Opportunities rejected an
aggregate message theory of liability because it hinged on a construction
of 3604(c) that would give rise to a constitutional infirmity in regards to
the First Amendment.160 Construing the statute to hold that otherwise
nondiscriminatory advertisements were liable for the creation and effects
of their aggregate message was unsupported by the FHAs text and
purpose.161
In Miami Valley, the Sixth Circuit again pressed for a theory of liability
under 3604(c) that eschewed First Amendment concerns. 162 The courts
constitutional concerns centered on the standards restriction of speech in
all advertisements, rather than on the restraints that 3604(c) potentially
places on commercial speech.163 Particularly, using discourage in the

156

Hunter, 459 F.2d at 212.

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 that
discriminatory 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); Miami Valley, 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).
157

160

Housing Opportunities, 943 F.2d at 650.

Id.
162 See Miami Valley, 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), with Ragin 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).
161

718

New England Law Review

v. 49 | 697

ordinary reader standard to evaluate 3604(c) violations created an overly

broad restriction on speech, thus possibly implicating the First
Amendment.164 Advertisements could potentially discourage an ordinary
reader of a protected class if, for example, the advertisement indicated that
the housing was very small or was a walk-up without elevatorseven
though this is merely a description of the property.165
Though the constitutionality of 3604(c) is well established,166 a First
Amendment argument in relation to the Second and Seventh Circuits
augmented ordinary-reader standard would have traction.167 A standard
that inquires whether a housing advertisement discourages an ordinary
reader is too broad and thus encroaches on free speech.168 Courts should
consistently follow a construction of the ordinary reader standard that will
not give rise to a constitutional infirmity.169 Therefore, the proper
standard for evaluating discriminatory advertisements under 3604(c)
examines solely whether the ad indicates a preference.170
IV. An Ordinary-Reader Standard Which Includes Discourage is
Unworkable in the Online Context
Unlike their paper counterparts,171 housing advertisements posted on
the Internet currently receive robust free speech protections from the FHA
antidiscrimination policies.172 The Internet has become a safe haven for
housing discrimination173 and 3604(c) faces potential challenges to its

164

Miami Valley, 725 F.3d at 57778.

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).
165

167

See Miami Valley, 725 F.3d at 578.

See id.
169 Hous. Opportunities Made Equal, Inc. v. Cincinnati Enquirer, Inc., 943 F.2d 644, 650 (6th
Cir. 1991).
170 See Miami Valley, 725 F.3d at 57778.
171 See 42 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)).
168

173

Sussman, Note, supra note 166, at 217 (arguing that the absence of publisher liability for

2015

M a t u r e P e r s o n P r e f e r r e d

719

applicability.174 Consequently, construing the ordinary reader standard to

include the discourage language is unworkable in the context of online
housing advertisements.175 Section 3604(c) advertising prohibitions are a
crucial component of Congress comprehensive open housing plan176 and
require a standard that accurately reflects its legislative purpose and plain
meaning.177 Therefore, the current circuit split should be resolved in favor
of a standard which inquires only whether an ordinary reader would find
the advertisement indicates a preference.178
Courts interpret 3604(c) to include liability for newspapers and other
print media that publish, or cause to be . . . published discriminatory
housing adsproviding a strong incentive to screen advertisements
submitted by third parties.179 For example, the New York Times monitors
advertisements submitted for publication.180 This includes screening for ads
that fail to comply with federal and state law requirements against
discrimination, including the FHA. 181 A result of publisher liability and the
subsequent monitoring by newspapers, discriminatory advertisements in
print publications have largely vanished.182
Conversely, housing websites have little incentive to screen out ads
violating 3604(c).183 The Communications Decency Act (CDA)
eliminates civil liability for Internet service providers (ISPs) that restrict
access to availability of material.184 Therefore, under the Act, ISPs are not

Internet service providers allows discriminatory housing ads to proliferate online unchecked);
see also For Rent: No Kids!, supra note 2, at 45 (identifying more than 7,500 advertisements that
violate the FHA in an investigation of housing websites).
174

See Klein & Doskow, supra note 172, 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.

Oliveri, supra note 144, at 1131.
177 See supra Part III.A.
178 See Miami Valley Fair Hous. Ctr. Inc. v. Connor Grp., 725 F.3d 571, 57778 (6th Cir.
2013).
176

179

See Oliveri, supra note 144, at 1130.

Ragin v. New York Times Co., 923 F.2d 995, 1004 (2d Cir. 1991).
181 Id.
182 See Plummer, supra note 104, at 178.
183 Oliveri, supra note 144, 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 note 144, at 113940 (citing 141 CONG. REC. H846970 (daily
180

720

New England Law Review

v. 49 | 697

treated as publishers of third-party content for the purposes of 3604(c).185

Litigation over the FHAs application in cyberspace has demonstrated that
immunity for Web sites publishing discriminatory housing seems
virtually assured at present.186 Concurrently, the Internet has rapidly
overtaken other forms of real estate advertising to become the primary
intermediary placing housing seekers and advertisers together.187 Housing
websites offer users the ability to post advertisements effortlessly, semianonymously and typically without charge. 188
Both case law and commentary on online discriminatory housing
advertisements focus on the tension between the CDA and FHA, rather
than the correct standard to apply in determining whether an
advertisement violates 3604(c).189 Addressing the conflict, circuit courts
have consistently upheld the CDAs immunization of ISPs from 3604(c)s
publisher liability provisions.190 This immunity is not absolute: the CDA
does 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 antidiscrimination polices,192 courts have effectively begun eviscerating the
FHAs advertising prohibition, which is integral to Congresss goal of
integrated communities.193 Moreover, these cases highlight the very
problematic 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. See id. 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 note 172, at 341; see Wilemon, supra note 9, at 375.
Oliveri, supra note 144, 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 also infra note
190.
188

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 note 172, at 37778.

Wholey, supra note 189, at 493.
194 See For Rent: No Kids! supra note 2, at 45 (identifying more than 7,500 advertisements
193

2015

M a t u r e P e r s o n P r e f e r r e d

721

increased use of online service for real estate advertising exacerbates the
FHAs enforcement challenges.195 By holding only individual users liable
under 3604(c) for discriminatory ads, housing websites do not police
FHA-offensive content in a meaningful way.196 This conflict will likely
not be resolved until Congress intervenes. 197
Altering the FHAs restrictions on speech as they apply to individuals
seeking roommatesby distinguishing between the governments ability
to regulate commercial speech in housing ads and the right to intimate
association198is contrary to the public interest in open housing and
nondiscriminatory advertising embodied in the [FHA].199 Exempting
roommate advertisements that state a preference from 3604(c)s
prohibitions will lead to confusion and an assumption that housing
advertisements that state a discriminatory preference are permissible by
law.200 The best solution is a clear ordinary reader standard to be applied in
evaluating roommate advertisements, as well as any advertisement for
housing in print or online.201 A standard that includes the Second and
Seventh Circuits discourage language is unworkable in the online
context because it is so strict that seemingly innocuous phrases could result
in a violation of the statute.202 This only bolsters arguments in favor of
exempting roommate ads from 3604(c).203 Conversely, inquiring as to
whether the ad indicates a preference to an ordinary reader will safeguard
the 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 note 144, at 114344.

195 Wholey, supra note 189, at 503.
196 Id. at 504 & n.82.
197 Wilemon, supra note 9, at 394.
198 Id. at 395.
199 See Spann v. Colonial Vill., Inc., 899 F.2d 24, 31 (D.C. Cir. 1990). Contra Wilemon, supra
note 9, 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 note 9, at 398.
201

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

2013).
202

See supra notes 164165 and accompanying text.

See id.
204 See Miami Valley, 725 F.3d at 57778.
203

722

New England Law Review

v. 49 | 697

under 3604(c), courts should only consider whether an ordinary reader

would find that the ad indicates a preference based on one of the statutes
prohibited factors. A standard which finds the statute is violated by any
ad that would discourage an ordinary reader of a particular [protected
group] from answering it effectively replaces indicates a preference
with a broader restriction that has no textual support in the language of
3604(c). Omitting the discourage language allows the ordinary reader
analysis 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 online
housing websites, a clear, objective ordinary reader standard is required to
avoid First Amendment infirmities and ensure that 3604(c)s advertising
prohibitions are enforced. Therefore, the circuit split should be resolved in
favor of the Sixth Circuit, and the ordinary reader standard should inquire
only whether an advertisement indicates a preference based on one of the
statutes prohibited factors.