Linmark Associates v. Willingboro

431 U.S. 85

Case Year: 1977

Case Ruling: 8-0, Reversed

Opinion Justice: Marshall

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Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Brennan, Burger, Powell, Stevens, Stewart, White


1st Concurring Opinion



1st Dissenting Opinion



2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


The township of Willingboro is a middle-income community located in southern New Jersey near Fort Dix, McGuire Air Force Base, and several major corporations. During the 1960s, the township experienced considerable growth. The white population increased almost 350 percent, and nonwhites increased from less than 1 percent of the population to almost 12 percent. In the 1970s, growth slowed. By 1973, the white population had declined slightly, while the number of nonwhite increased to constitute 18 percent of the population. In response to these trends, whites began to move out of the township at higher than average rates, citing a fear that the community was undergoing major changes in its racial composition.

Its proximity to corporate headquarters and military bases already caused the town to consistently experience relatively high turnover from employee transfers. Adding the racially motivated sales to the historically high transient turnover gave the impression that panic selling had set in. To reduce this perception, the township passed an ordinance outlawing the posting of "For Sale" and "Sold" signs on real estate. While no statistics were offered, witnesses testified that in the first nine months after its passage the ordinance had had the effect of promoting an image of a more stable community, and that fewer sellers were leaving because of racial fears.

Linmark Associates owned a piece of property in Willingboro that it decided to sell. Placing a "For Sale" sign on the property, the company proceeded to file suit against the township and the building inspector charged with enforcing the statute, claiming that the ban on such signs violated the First Amendment. The district court found the ordinance contrary to the Constitution, but the court of appeals reversed.



This case presents the question whether the First Amendment permits a municipality to prohibit the posting of "For Sale" or "Sold" signs when the municipality acts to stem what it perceives as the flight of white homeowners from a racially integrated community....

The starting point for analysis of petitioners' First Amendment claim must be the two recent decisions in which this Court has eroded the "commercial speech" exception to the First Amendment. In Bigelow v. Virginia (1975), decided less than two years ago, this Court for the first time expressed its dissatisfaction with the then-prevalent approach of resolving a class of First Amendment claims simply by categorizing the speech as "commercial."... "Regardless of the particular label," we stated, "a court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation."... After conducting such an analysis in Bigelow we concluded that Virginia could not constitutionally punish the publisher of a newspaper for printing an abortion referral agency's paid advertisement which not only promoted the agency's services but also contained information about the availability of abortions.

One year later, in Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council (1976), we went further. Conceding that "[s]ome fragment of hope for the continuing validity of a `commercial speech' exception arguably might have persisted because of the subject matter of the advertisement in Bigelow," id., ... we held quite simply, that commercial speech is not "wholly outside the protection of the First Amendment."... Although recognizing that "[s]ome forms of commercial speech regulations"--such as regulation of false or misleading speech--"are surely permissible," ... we had little difficulty in finding that Virginia's ban on the advertising of prescription drug prices by pharmacists was unconstitutional.

Respondents contend, as they must, that the "For Sale" signs banned in Willingboro are constitutionally distinguishable from the abortion and drug advertisements we have previously considered. It is to the distinctions respondents advance that we now turn.

If the Willingboro law is to be treated differently from those invalidated in Bigelow and Virginia Pharmacy Bd. , it cannot be because the speakers--or listeners--have a lesser First Amendment interest in the subject matter of the speech that is regulated here. Persons desiring to sell their homes are just as interested in communicating that fact as are sellers of other goods and services. Similarly, would-be purchasers of realty are no less interested in receiving information about available property than are purchasers of other commodities in receiving like information about those commodities. And the societal interest in "the free flow of commercial information" ... is in no way lessened by the fact that the subject of the commercial information here is realty rather than abortions or drugs.

Respondents nevertheless argue that First Amendment concerns are less directly implicated by Willingboro's ordinance because it restricts only one method of communication. This distinction is not without significance to First Amendment analysis, since laws regulating the time, place, or manner of speech stand on a different footing from laws prohibiting speech altogether.... Respondents' effort to defend the ordinance on this ground is unpersuasive, however, for two reasons.

First, serious questions exist as to whether the ordinance "leave[s] open ample alternative channels for communication,"Virginia Pharmacy Bd.... Although in theory sellers remain free to employ a number of different alternatives, in practice realty is not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated--primarily newspaper advertising and listing with real estate agents--involve more cost and less autonomy than "For Sale" signs; ... are less likely to reach persons not deliberately seeking sales information, ... and may be less effective media for communicating the message that is conveyed by a "For Sale" sign in front of the house to be sold.... The alternatives, then, are far from satisfactory.

Second, the Willingboro ordinance is not genuinely concerned with the place of the speech--front lawns--or the manner of the speech--signs. The township has not prohibited all lawn signs--or all lawn signs of a particular size or shape--in order to promote aesthetic values or any other value "unrelated to the suppression of free expression." United States v. O'Brien.... Nor has it acted to restrict a mode of communication that "intrudes on the privacy of the home, ... makes it impractical for the unwilling viewer or auditor to avoid exposure," Erznoznik v. City of Jacksonville (1975), or otherwise reaches a group the township has a right to protect. And respondents have not demonstrated that the place or manner of the speech produces a detrimental "secondary effect" on society, Young v. American Mini Theatres (1976). Rather, Willingboro has proscribed particular types of signs based on their content because it fears their "primary" effect--that they will cause those receiving the information to act upon it. That the proscription applies only to one mode of communication, therefore, does not transform this into a "time, place, or manner" case.... If the ordinance is to be sustained, it must be on the basis of the township's interest in regulating the content of the communication, and not on any interest in regulating the form.

Respondents do seek to distinguish Bigelow and Virginia Pharmacy Bd. by relying on the vital goal this ordinance serves: namely, promoting stable, racially integrated housing. There can be no question about the importance of achieving this goal. This Court has expressly recognized that substantial benefits flow to both whites and blacks from interracial association and that Congress has made a strong national commitment to promote integrated housing....

That this ordinance was enacted to achieve an important governmental objective, however, does not distinguish the case from Virginia Pharmacy Bd. In that case the State argued that its prohibition on prescription drug price advertising furthered the health and safety of state residents by preventing low cost, low quality pharmacists from driving reputable pharmacists out of business. We expressly recognized the "strong interest" of a State in maintaining "professionalism on the part of licensed pharmacists." But we nevertheless found the Virginia law unconstitutional because we were unpersuaded that the law was necessary to achieve this objective, and were convinced that in any event, the First Amendment disabled the State from achieving its goal by restricting the free flow of truthful information. For the same reasons we conclude that the Willingboro ordinance at issue here is also constitutionally infirm.

The record here demonstrates that respondents failed to establish that this ordinance is needed to assure that Willingboro remains an integrated community....

The constitutional defect in this ordinance, however, is far more basic. The Township Council here, like the Virginia Assembly in Virginia Pharmacy Bd. , acted to prevent its residents from obtaining certain information. That information, which pertains to sales activity in Willingboro, is of vital interest to Willingboro residents, since it may bear on one of the most important decisions they have a right to make: where to live and raise their families. The Council has sought to restrict the free flow of these data because it fears that otherwise homeowners will make decisions inimical to what the Council views as the homeowners' self-interest and the corporate interest of the township: they will choose to leave town. The Council's concern, then, was not with any commercial aspect of "For Sale" signs--with offerors communicating offers to offerees--but with the substance of the information communicated to Willingboro citizens. If dissemination of this information can be restricted, then every locality in the country can suppress any facts that reflect poorly on the locality, so long as a plausible claim can be made that disclosure would cause the recipients of the information to act "irrationally."Virginia Pharmacy Bd. denies government such sweeping powers. As we said there in rejecting Virginia's claim that the only way it could enable its citizens to find their self-interest was to deny them information that is neither false nor misleading:

"There is ... an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.... But the choice among these alternative approaches is not ours to make or the Virginia General Assembly's. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us."

Or as Mr. Justice Brandeis put it: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression." Whitney v. California (1927) (concurring opinion).

Since we can find no meaningful distinction between Ordinance 5-1974 and the statute overturned in Virginia Pharmacy Bd., we must conclude that this ordinance violates the First Amendment....