The Fair Housing Act was passed in 1968 with the purpose of outlawing discrimination by a property owner when renting or selling a dwelling based on “race, color, religion, sex, familial status, or national origin.” Section 3604(c) of the Fair Housing Act, which deals specifically with discriminatory advertising practices, prohibits housing advertisements through any medium that show “any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Since the passage of that act, applying section 3604(c) has become more difficult due to issues such as internet advertising and First Amendment challenges.
This Note examines the federal court system’s interpretation of section 3604(c) of the Fair Housing Act. To determine whether an advertisement has violated section 3604(c), the courts use the “ordinary reader” test to determine whether an “ordinary reader would understand an advertisement to suggest a preference for or against a protected group.” In Ragin v. New York Times Company, the Second Circuit interpreted the term “preference” to mean “any ad that would discourage an ordinary reader of a particular race.” The Seventh Circuit also equated the word “preference” with discouraging an ordinary reader in Jancik v. Department of Housing & Urban Development. However, in Miami Valley Fair Housing Center, Inc. v. Connor Group, the Sixth Circuit declined to follow the Second and Seventh Circuits, ruling that the terms “preference” and “discourage” are not synonymous, and therefore the ordinary reader standard should apply any time an ordinary reader would believe an advertisement indicates a preference. These three decisions created a circuit split on the issue of whether the ordinary reader test applies to advertisements that discourage readers, or merely show a preference.
In her Article, “Mature Person Preferred”: The Circuit Split on the “Ordinary Reader” Standard for Advertisements in Violation of the Fair Housing Act, Heather Reid argues that the circuit split should be decided in favor of the Sixth Circuit and the ordinary reader test should apply to advertisements that show a preference.
Reid first argues that equating “discourage” to the language “indicates a preference” in section 3604(c) constructively replaces the language of the statute “with a broader restriction that has no textual support in the language of § 3604(c).” Additionally, neither the Second nor Seventh Circuit has articulated a reason for inserting “discourage” into the reasonable reader standard when it was not included in the statute.
Reid goes on to point out that including “discourage” creates an overly broad interpretation of the reasonable person standard that restricts free speech. An advertisement could “discourage” a member of a protected class by simply describing the property without showing a preference. This creates a valid First Amendment claim.
Reid then analyzes the ordinary reader test as it applies to online advertisements, which are prevalent in this age, yet were non-existent when the statute was passed. Reid warns that the Seventh and Second Circuit’s version of the ordinary reader standard is unworkable in the age of Internet advertisements. In print media, newspapers or publishers are held accountable for discriminatory ads they publish, which is one reason that the legislation is effective, but Internet service providers are exempt from civil liability in these circumstances, so the law will be less effective. Reid argues that since the standard that uses the “discourage” language is over-restrictive, it will lead to more confusion in enforcement due to the different standards between online ads and print ads. Reid concludes that the court must use a clear and broad, yet unrestrictive, standard that applies to advertisements equally across all mediums, which would be accomplished if the Court adopts the Sixth Circuit’s version of the ordinary reader standard.
Be sure to read the full article in the New England Law Review, Volume 49, Book Four, due to be posted here in early Fall.