Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973)

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Author: Justice Stewart

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Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973)

MR. JUSTICE STEWART, with whom Mr. JUSTICE DOUGLAS joins, dissenting.

I have no doubt that it is within the police power of the city of Pittsburgh to prohibit discrimination in private employment on the basis of race, color, religion, ancestry, national origin, place of birth, or sex. I do not doubt, either, that in enforcing such a policy the city may prohibit employers from indicating any such discrimination when they make known the availability of employment opportunities. But neither of those propositions resolves the question before us in this case.

That question, to put it simply, is whether any government agency -- local, state, or federal -- can tell a newspaper in advance what it can print and what it cannot. Under the First and Fourteenth Amendments, I think no government agency in this Nation has any such power.{1}

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

But what the Court approves today is wholly different. It approves a government order dictating to a publisher in advance how he must arrange the layout of pages in his newspaper.

Nothing in Valentine v. Chrestensen, 316 U.S. 52, remotely supports the Court’s decision. That case involved the validity of a local sanitary ordinance that prohibited the distribution in the streets of "commercial and business advertising matter." The Court held that the ordinance could be applied to the owner of a commercial tourist attraction who wanted to drum up trade by passing out handbills in the streets. The Court said it was

clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. Whether, and to what extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity shall be adjudged a derogation of the public right of user, are matters for legislative judgment.

Id. at 54. Whatever validity the Chrestensen case may still retain when limited to its own facts,{6} it certainly does not stand for the proposition that the advertising pages of a newspaper are outside the protection given the newspaper by the First and Fourteenth Amendments. Any possible doubt on that score was surely laid to rest in New York Times Co. v. Sullivan, 376 U.S. 254.{7}

So far as I know, this is the first case in this or any other American court that permits a government agency to enter a composing room of a newspaper and dictate to the publisher the layout and makeup of the newspaper’s pages. This is the first such case, but I fear it may not be the last. The camel’s nose is in the tent.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way. . . .

Boyd v. United States, 116 U.S. 616, 635.

So long as Members of this Court view the First Amendment as no more than a set of "values" to be balanced against other "values," that Amendment will remain in grave jeopardy. See Paris Adult Theatre, I v. Slaton, ante, p. 49 (First and Fourteenth Amendment protections outweighed by public interest in "quality of life," "total community environment," "tone of commerce," "public safety"); Branzburg v. Hayes, 408 U.S. 665 (First Amendment claim asserted by newsman to maintain confidential relationship with his sources outweighed by obligation to give information to grand jury); New York Times Co. v. United States, 403 U.S. 713, 748 (BURGER, C.J., dissenting) (First Amendment outweighed by judicial problems caused by "unseemly haste"); ColumbiaBroadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 199 (BRENNAN, J., dissenting) (balancing of "the competing First Amendment interests").

It is said that the goal of the Pittsburgh ordinance is a laudable one, and so indeed it is. But, in the words of Mr. Justice Brandeis,

Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.

Olmstead v. United States, 277 U.S. 438, 479 (dissenting opinion). And, as Mr. Justice Black once pointed out,

The motives behind the state law may have been to do good. But . . . [h]istory indicates that urges to do good have led to the burning of books and even to the burning of "witches."

Beauharnais v. Illinois, 343 U.S. 250, 274 (dissenting opinion).

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

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

1. I put to one side the question of governmental power to prevent publication of information that would clearly imperil the military defense of our Nation, e.g., "the publication of the sailing dates of transports or the number and location of troops." Near v. Minnesota, 283 U.S. 697, 716.

2. See Grosjean v. American Press Co., 297 U.S. 233, 250; Murdock v. Pennsylvania, 319 U.S. 105, 112.

3. See Associated Press v. NLRB, 301 U.S. 103, 132-133.

4. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193; Mabee v. White Plains Publishing Co., 327 U.S. 178.

5. See Associated Press v. United States, 326 U.S. 1; Lorain Journal Co. v. United States, 342 U.S. 143, 155-157; Citizen Publishing Co. v. United States, 394 U.S. 131, 139.

6. MR. JUSTICE DOUGLAS has said that "[t]he [Chrestensen] ruling was casual, almost offhand. And it has not survived reflection." Cammarano v. United States, 358 U.S. 498, 514 (concurring opinion).

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

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Chicago: Stewart, "Stewart, J., Dissenting," Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973) in 413 U.S. 376 413 U.S. 401–413 U.S. 404. Original Sources, accessed October 4, 2022, http://www.originalsources.com/Document.aspx?DocID=4BSC5KQZK5E92UL.

MLA: Stewart. "Stewart, J., Dissenting." Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973), in 413 U.S. 376, pp. 413 U.S. 401–413 U.S. 404. Original Sources. 4 Oct. 2022. http://www.originalsources.com/Document.aspx?DocID=4BSC5KQZK5E92UL.

Harvard: Stewart, 'Stewart, J., Dissenting' in Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376 (1973). cited in 1973, 413 U.S. 376, pp.413 U.S. 401–413 U.S. 404. Original Sources, retrieved 4 October 2022, from http://www.originalsources.com/Document.aspx?DocID=4BSC5KQZK5E92UL.