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68 Denv. U. L. Rev. 57 (1991)
Media Liability for Publication of Advertising: When to Kill the Messenger

handle is hein.journals/denlr68 and id is 83 raw text is: MEDIA LIABILITY FOR PUBLICATION OF ADVERTISING: WHEN TO KILL THE MESSENGER By MATTHEW G. WEBER* The first bringer of unwelcome news hath but a losing office. Shakespeare** I. INTRODUCTION Given the budgetary restraints facing local and national regulatory and law enforcement agencies, it comes as no surprise that these agen- cies occasionally attempt to shift the cost of regulatory enforcement to the private sector. A recent case arising under the Fair Housing Act (FHA)' suggests that newspapers may be forced to play an increas- ingly active role in monitoring and regulating advertising copy where the advertisement itself is deemed to pose a substantive danger of racial discrimination. In Ragin v. New York Times Co.,2 Judge Haight of the United States District Court for the Southern District of New York re- jected the New York Times' (Times) contention that the first amend- ment prohibits imposition of liability on a newspaper for printing advertisements for the sale or rental of residential real estate featuring predominately white models. The court reached this conclusion in de- nying the Times' motion to dismiss the plaintiffs' discrimination claim arising under section 3604(c) of the FHA.3 This article discusses the grounds for the Ragin court's rejection of the Times' constitutional defense. The Ragin opinion will be contrasted with a subsequent decision granting a similar motion to dismiss on be- half of The Cincinnati Enquirer in Housing Opportunities Made Equal v. Cincinnati Enquirer, (HOME).4 This article examines the conflict be- tween the two decisions in light of two rationales articulated by the Supreme Court as justifications for the greater regulation of commercial * Matthew G. Weber (B.A., Colorado College; J.D., Northwestern University School of Law) is an attorney with Dow, Lohnes & Albertson in Washington, D.C. The author wishes to thank Brent N. Rushforth and Jonathan D. Hart of Dow, Lohnes & Al- bertson, and Asim Varma, Esq. of Washington, D.C. for their support and comments. The author also thanks summer associate Karen A. Post for her valuable research assistance. ** Henry IV, Part II, Act I, Scene 1, line 100. 1. 42 U.S.C. § 3604 (1988). 2. Ragin v. New York Times Co., 726 F. Supp. 953 (S.D.N.Y. 1989), certifiedfor inter- locutory appeal, Memorandum Opinion and Order, No. 89 Civ. 0228 (CSH) (S.D.N.Y. Mar. 6, 1990)(1990 WL 26302, 1990 U.S. Dist. LEXIS 2328). 3. Judge Haight dismissed claims arising under 42 U.S.C. § 3604(a) of the FHA, as well as dismissing claims under 42 U.S.C §§ 1981, 1982 (1988) of the Civil Rights Acts of 1866 and 1870, and the thirteenth amendment of the Constitution. 4. Housing Opportunities Made Equal v. Cincinnati Enquirer, 731 F. Supp. 801 (S.D. Ohio 1990).

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