Full opinion text
KENNEDY, Circuit Judge. Plaintiff-appellant, Housing Opportunities Made Equal, Inc. (“HOME”), brought this action against the Cincinnati Enquirer (“defendant”) alleging its real estate advertising violated the Fair Housing Act, 42 U.S.C. § 3604(a) and (c) (“FHA”), the Civil Rights Act, 42 U.S.C. § 1982, and the thirteenth amendment to the United States Constitution. The District Court granted defendant’s motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6). 731 F.Supp. 801. HOME now appeals that part of the District Court’s order dismissing its claim under 42 U.S.C. § 3604(c). HOME asks this Court to decide two issues: (1) whether a single advertisement which features only white models raises a factual question of discrimination under the FHA; and (2) whether the publication of multiple advertisements by unrelated realtors which features only white models, when taken in the aggregate, sends a discriminatory message to the ordinary reader in violation of the FHA. For the following reasons, we AFFIRM the judgment of the District Court. I. Plaintiff alleges that over a twenty-year period defendant accepted for publication real estate advertisements which, in almost every instance, pictured only white human models. Less than one percent of the advertisements depicting human models pictured a black model. This percentage contrasts with a population comprised of 34% black persons in the City of Cincinnati, 19% in Hamilton County and 12% in the metropolitan statistical area. HOME does not identify any particular advertisement which allegedly violates section 3604(c). Nor does HOME make any allegations with respect to any particular advertiser who placed advertisements with defendant. II. HOME wages a two-pronged attack. First, HOME contends that defendant’s publication of any advertisement with all-white models violates the FHA or at least raises a factual issue of whether such advertisement is discriminatory. Second, HOME alleges that a layout of advertisements which depict models virtually all of whom are white even though independently submitted by various real estate organizations or their agents, when taken in the aggregate, sends a discriminatory message in violation of section 3604(c). A reviewing court shall grant a motion to dismiss for failure to state a claim when it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). An appellate court reviews de novo a trial court’s decision regarding a Rule 12(b)(6) motion. Intake Water Co. v. Yellowstone River Compact Comm’n, 769 F.2d 568, 569 (9th Cir.1985), cert. denied, 476 U.S. 1163, 106 S.Ct. 2288, 90 L.Ed.2d 729 (1986). Thus, we must determine whether HOME has failed to allege any set of facts to substantiate the alleged violations of the FHA. We first consider whether HOME has standing to bring this claim. In conducting this analysis, we need not consider “prudential standing”; Congress intended that standing under the FHA extend to the full limits of Article III. Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982); Spann v. Colonial Village, Inc., 899 F.2d 24 (D.C.Cir.), cert. denied, — U.S. -, 111 S.Ct. 508, 112 L.Ed.2d 521 (1990). Thus, HOME can establish standing by alleging a concrete and demonstrable injury, including an injury arising from a “purportedly illegal action [that] increases the resources the group must devote to programs independent of its suit challenging the action.” Spann, 899 F.2d at 27. One of HOME’S primary purposes is the elimination of unlawful racially discriminatory housing practices to all persons seeking housing in the Cincinnati metropolitan area. HOME alleges that defendant’s discriminatory advertising has deterred potential renters from seeking housing at the advertised complexes. This, in turn, has caused HOME to devote resources to investigate and negate the impact of these advertisements. Allegation of this injury is sufficient to confer standing upon HOME. Id. A. Individual Photographs Depicting All-White Models Courts have given a broad reading to the FHA in order to fulfill its remedial purpose. See Trafficante v. Metropolitan Life Ins., Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). To this end, courts have recognized that section 3604(c) applies to all publishing mediums, including newspapers, United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972), and have allowed parties to establish a violation of section 3604(c) by proving either an actual intent by a defendant to discriminate or by proving that “[t]o the ordinary reader the natural interpretation of the advertisements published in [the newspaper] ... is that they indicate a racial preference....” Id. at 215. HOME seeks to establish liability based on the “ordinary reader” standard. Section 3604(c) makes unlawful certain practices associated with the sale or rental of housing: 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. 42 U.S.C. § 3604(c). In 1980, the Department of Housing and Urban Development, (“HUD”), the agency charged with implementing the FHA, promulgated a regulation to “provide guidance” to newspapers and others concerning nondiscrimination in advertising in connection with real estate. 24 C.F.R. Part 109. Although applying both to the advertising media and to persons placing advertisements, id. § 109.-16(a)(1) and (2), these regulations do not mandate particular actions by these parties. Rather, HUD sought to balance between the "identification of practices which might be viewed as violations of Title VIII and ... the limitation which the First Amendment may impose on mandatory restrictions relating to the publication of advertising.... [T]he regulation describes examples of advertising practices which might be indicative of a violation of (or compliance with) Title VIII." 45 Fed. Reg. 57,102 (Aug. 26, 1980). Further, "[w]hile the practices, etc., cited in the regulation are indices of a standard of conduct to evaluate the existence of discrimination in advertising, they are not intended, per se, to establish immutable rules, but to serve as examples of practices, usage, content, etc., which should be complied with (or avoided), whichever the case may be." Id. (emphasis in original). Mandatory language was intentionally avoided. In keeping with this policy, HUD stated that the selective use of human models in advertisements "may" be discriminatory: Selective advertising may involve an advertising campaign using human models primarily in media that cater to one racial or national origin segment of the population without a complementary advertising campaign that is directed at other groups. 24 C.F.R. § 109.25(c). In its comments, HUD stated that this section "is intended to preclude selective use of human models in advertising for the purpose of attracting (or discouraging) certain groups covered by Title VIII with respect to certain housing or neighborhoods." 45 Fed.Reg. 57, 105 (Aug. 26, 1980). In another section, HUD stated: If models are used in display advertising campaigns, the models should be clearly definable as reasonably representing the majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. Models, if used, should portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status, or national origin, and is not for the exclusive use of one such group. 24 C.F.R. § 109.30(b). In explaining this section, HUD noted: Civil rights groups commented that models used should reflect, in numbers, the exact percentage of various covered groups in the population, a suggestion which is clearly unworkable. The term "reasonably representing" is intended to assure that models will convey a message of general inclusiveness of persons covered by Title VIII, not literal display of each minority group. 45 Fed.Reg. 57,105 (Aug. 26, 1980). Several conclusions can be drawn from the language of the FHA and HUD's regulations. On the one hand, the statute and regulations make abundantly clear that an advertisement can discriminate against an individual based on any criteria specified in the FHA. Such discrimination may occur through words or pictures, and the use of all-white models could be a factor in determining whether an advertisement conveys a discriminatory message, although its strength and clarity will depend upon an analysis of the entire advertisement. On the other hand, the statute and regulations create no fixed and immutable rules to determine whether an advertisement is discriminatory. Certainly the use of particular models may be relevant, but this by itself does not prove that an advertisement is discriminatory or indicates a preference. These regulations and com-merits indicate that HUD rejected a mechanical approach which would require the literal display of a member of each protected group. Rather, HUD approached the use of advertising models in a more practical and fluid manner, referring to the concept of an advertising “campaign.” At least one other circuit appears to have incorporated the principles underlying HUD’s approach into its “ordinary reader” standard. The Second Circuit recently observed: [The ordinary] reader does not apply a mechanical test to every use of a model of a particular race. An ad depicting a single model or couple of one race that is run only two or three times would seem, absent some other direct evidence of an intentional racial message, outside Section 3604(c)’s prohibitions as a matter of law.... It thus seems inevitable that close questions of liability will involve advertisers that either use a large number of models and/or advertise repetitively. In such cases, the advertiser’s opportunities to include all groups are greater, and the message conveyed by the exclusion of a racial group is stronger. Ragin v. The New York Times Co., 923 F.2d 995, 1002 (2d Cir.1991). We conclude that a complaint alleging a violation of section 3604(c) based on the single publication of an advertisement which uses a small number of all-white models does not, without more, state a cognizable claim under section 3604(c) as a matter of law. The complaint must allege that an advertiser had the opportunity, based upon either the large number of models used in an advertisement or the numerous advertisements placed by an advertiser with a particular publisher, to include models of a protected group. HOME made the following claim in its complaint: 9. At least 34% of the population of the City of Cincinnati is black. 19% of Hamilton County is black. 12% of the Metropolitan Statistical Area is black. During the twenty year period since the Act was passed prohibiting discriminatory advertisements, display advertisements have appeared in the Sunday Enquirer featuring hundreds of human models of whom virtually none were black. Nearly all advertisers in the real estate section who have advertisements with human models depict only whites. In group photographs in the real estate section the groups consist of exclusively white people. Of all of the advertisements displaying human models less than 1% include a black person. 17. The real estate display advertisements featured by the Cincinnati Enquirer indicate a preference based on race through the use of human models reflecting predominant race of the advertised building, development or community. 18. In light of the Cincinnati Enquirer’s continuing and longstanding practice of printing and publishing racially discriminatory advertisements, Plaintiffs believe the Cincinnati Enquirer has intentionally violated the Fair Housing Act. The complaint is silent as to the source of the advertisements. At either extreme, we could infer that one advertiser submitted all of the advertisements, or that a different advertiser placed each advertisement. We need not dwell upon this ambiguity, however. In its brief and at oral argument HOME clarified its position. It stated that its claim rested exclusively upon the use of all-white models and not upon any other factor, such as repetition of advertising by a single advertiser. In its brief, HOME asserted that “[s]uch consistent and overwhelming absence of black models clearly entitles the finder of fact to find a preference ... based on race.” At no time did HOME point to a series of advertisements by a particular advertiser or a picture depicting a large number of models all of whom were white in order to establish its section 3604(c) claim. Based on these concessions, we construe HOME’S complaint to allege that a single advertisement depicting all-white models is sufficient to state a cause of action under section 3604(c). Once clarified, HOME’S first allegation in its complaint deals only with individual advertisements, and not with a plurality of advertisements. HOME’S purpose for pointing to the publication of multiple advertisements is to raise its claim of liability based on its “aggregate message” theory. HOME is not alleging this fact in order to state a claim based on the repetitive advertising by a single advertiser. We hold that such an allegation fails to state a cause of action for purposes of section 3604(c). B. Liability Based on a Message Created by an Aggregation of Advertisements For purposes of HOME's second claim, it is not necessary that any single advertisement violate the FHA; this claim targets a "message" which cannot be traced to a particular advertisement. In other words, HOME's claim is based on the premise that the whole is greater than the sum of the individual parts: the aggregate message created and sent by the publication of multiple advertisements violates section 3604(c) notwithstanding the legality of each advertisement. In its complaint, HOME sought to hold defendant legally responsible-including the imposition of compensatory and punitive damages-for the creation and effects of this aggregate message. Because we find that the text and purpose of the FHA, as well as the regulations interpreting it, do not support this theory of liability, and because we desire to avoid a constitutional infirmity which would otherwise arise, we decline to construe the FHA to create liability for the possible aggregate message of otherwise nondiscriminatory advertisements. Section 3604(c) makes clear that a discriminatory message must stem from a "notice, statement, or advertisement" that indicates a racial preference. Hence, liability of a realtor or a publisher stems from the same act: a discriminatory advertisement. Yet HOME does not attack here an advertisement, or a message derived by an ordinary reader from a particular advertisement, but a message separate from and incidental to the individually placed advertisements. Although implicating advertisements in general, this claim does not depend upon a finding that any particular advertisement is discriminatory. We agree with HOME that the FHA must be construed broadly; but the text of the statute-the starting point for construing a statute-ties the prohibition of discriminatory messages to particular advertisements. HOME's cause of action, therefore, does not fall within the literal language of the statute. See Hv~nter, 459 F.2d at 210 (stating that "[l]egislative intent is first to be gathered from the plain meaning of the words of the statute"). The regulations interpreting this section also fail to support HOME's claim. The regulations refer to "advertising campaigns" directed at readers for "certain housing or neighborhoods." Clearly, a random layout of advertisements submitted by independent realtors does not constitute a "campaign"; nor does the aggregate message allegedly communicated by such unrelated advertisements target "certain housing or neighborhoods." In publishing unrelated advertisements, a newspaper is not directing an advertising campaign, and as an advertising medium, a newspaper does not limit advertisements to certain housing or neighborhoods. The regulations contemplate a certain level of specificity in the discriminatory message vis-a-vis the real estate in order to establish a violation of the FHA. A different message may be conveyed by a brochure or related advertisements for a property or development which shows multiple pictures of multiple models, all of them white. We conclude that the interpretation urged by HOME is not supported by, and may run counter to, the language of section 3604(c) and the relevant HUD regulations. HOME cites numerous cases to bolster the validity of its claim. Ragin v. Steiner, Clateman and Assoc., 714 F.Supp. 709 (S.D.N.Y.1989); Spann, 899 F.2d 24; Spann v. The Carley Capital Group, Inc., 734 F.Supp. 1 (D.D.C.1988); Saunders v. General Servs. Corp., 659 F.Supp. 1042 (E.D.Va.1987). We find that these cases are either distinguishable or unpersuasive. Saunders involved the publication of a brochure depicting over 68 human models advertising for particular complexes owned by a single real estate organization. Any messages-whether created by individual or an aggregation of advertisements-could be traced to identifiable pieces of property owned by a single real estate organization. In contrast, defendant published numerous advertisements which were submitted by independent unrelated realtors. Under these circumstances, the instant aggregate message cannot be tied to a particular piece of property. Neither The Carley Capital Group nor Spann expresses an opinion on a cause of action similar to the instant action. The District Court in The Carley Capital Group construed plaintiff's complaint to allege that defendants published advertisements that failed to include a black model, and "that in other respects ... intentional racial discrimination occurred." 734 F.Supp. at 3. Thus, it appears that plaintiff's claim was one of actual discriminatory intent bolstered by advertisements. So construed, we would agree that this would appear to state a valid cause of action under the FHA. In Spann, the District of Columbia Court of Appeals addressed the issue of whether plaintiff's claim was time-barred. The court of appeals held that the District Court erred in its application of the relevant statute of limitations. The court of appeals never addressed the issue of the viability of the cause of action. Thus, this case does not help in our analysis of the instant issue. Finally, we note that the only other circuit to address the issue-the Second Circuit-arrives at the same conclusion. The Ragin court stated: [W]e agree with the Times that liability may not be based on an aggregation of advertisements by different advertisers. Although the twenty-year pattern alleged in the complaint may have been a powerful engine for housing segregation and, if proven, will almost certainly include violations of Section 3604(c), the statute provides a prohibition only with regard to individual advertisers. Ragin, 923 F.2d at 1002. The statutory construction urged by HOME also fails to pass constitutional muster based on an analysis of relevant first amendment principles. In general, the Supreme Court has distinguished between speech that proposes a commercial transaction and other types of speech, Cen tral Hudson, 447 U.S. at 562-63, 100 S.Ct. at 2349-50, and has concluded that the Constitution provides less protection to commercial speech. The Supreme Court has established a four-part analysis to determine the protection accorded particular commercial speech: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Id. at 566, 100 S.Ct. at 2351. We note that the speech at issue here is lawful and not misleading. Further, the asserted governmental interest is substantial. Trafficante, 409 U.S. 205, 93 S.Ct. 364. Our chief concerns lie with the last two prongs of the analysis, the advancement of the government interest and the extensiveness of the regulations. The interpretation of the FHA urged by HOME does little to promote the governmental interest. The purposes of the FHA are to eradicate housing discrimination and to promote integrated housing. Among other measures, the FHA prohibits discriminatory housing practices and discriminatory advertising practices for housing. The former measure attacks the root of the problem, discriminatory housing practices against certain minority groups. The prohibition against discriminatory advertising contributes to the eradication of discriminatory housing practices. Without the regulation of advertisements, realtors could deter certain classes of potential tenants from seeking housing at a particular location, effectively discriminating against these classes without running afoul of the FHA’s prohibition against discriminatory housing practices. Congress obviously recognized the key role housing advertisements play in potential real estate transactions and concluded that the regulations of real estate advertisements is warranted. The connection between the state’s interest espoused in the FHA and HOME’S claim is too attenuated, however. HOME’S claim does not attack an illegal housing or rental practice; nor does it target discriminatory advertisements for specific real estate. Rather, this claim purports to hold a publisher liable for the creation of a general message of discrimination not traceable to a particular advertisement. Even if such a general message is felt in a real estate market and generates a less than friendly environment for certain groups, it is difficult to determine how this message deters individuals from seeking to buy or rent specific real estate. Recognition of HOME’S claim would do little to promote the purpose of the FHA. Indeed, such a claim leads to anomalous results because it would impose liability on a publisher notwithstanding that all of the advertisers complied with the FHA in their advertising-practices. In a similar case, Linmark Assocs., Inc. v. Willingboro, 431 U.S. 85, 95-96, 97 S.Ct. 1614, 1619-20, 52 L.Ed.2d 155 (1977), the Supreme Court struck down a township’s ordinance banning the use of “For Sale” signs in front of houses. Although the ordinance sought to promote an important objective — racially integrated housing — the Supreme Court found the connection between the goal and the ban too attenuated. Id.; see Central Hudson, 447 U.S. at 565 n. 7, 100 S.Ct. at 2350 n. 7 (stating that “we observed [in Linmark ] that there was no definite connection between the township’s goal of integrated housing and its ban on the use of ‘For Sale’ signs”). We find the connection between HOME’S claim based on the asserted cumulative message created and sent by multiple advertisements and the purpose of the FHA similarly attenuated. Moreover, the statutory construction urged by HOME is too extensive to serve the state’s interest. Expanding the statute to encompass the instant claim places a heavy burden on publishers while achieving only incidental benefits. Publishers would become the government’s policemen in enforcing section 3604(c), having to ensure that advertisers and the message of advertisements individually and in the aggregate comply with this section. In this instance, newspapers would be required to achieve a proper racial mix in the layout of their advertisements. A publisher would be hard pressed to determine what set of statistics upon which to rely in achieving that mix. Should proportionality be determined based on the general population in the area; based on the composition of the subscribers; or based on the composition of potentially qualified buyers in a particular area? Moreover, a newspaper would have to notify particular advertisers to use minority human models in order to achieve this proper mix of minorities in its layout of advertisements. Of course, a newspaper could simply refuse to publish advertisements with human models, an extreme policy not adopted by either the relevant statute or regulations. And this extreme act still may not shield a publisher from liability. See Ragin, 714 F.Supp. 709. We are reluctant to construe this statute so as to impose such burdens on a publisher or to create a policy not established by Congress or HUD. Requiring a publisher to perform this task, as opposed to the advertiser himself or a government agency, is at odds with the traditional relationship between the government and the press. See Bigelow, 421 U.S. at 829, 95 S.Ct. at 2236 (noting that a claim against a publisher for publishing an abortion advertisement in violation of a statute “would impair, perhaps severely, [the newspapers’] functioning”). In light of the nominal promotion of the asserted governmental interest and the significant burden imposed upon the press, we determine that the construction urged by HOME is constitutionally infirm. On the other hand, the construction we give to section 3604(c) serves substantially the purposes sought to be achieved by the FHA without seriously burdening publishers. To be sure, publishers remain liable for publishing an advertisement that is obviously discriminatory, including an advertisement featuring the exclusive use of a large number of all-white models; for the publication of a plurality of advertisements submitted by an advertiser that depict all-white models; or for intending to discriminate through the publication of advertisements. This potential liability does not impose substantial affirmative duties upon publishers, thereby minimizing their role as enforcers of congressional policy. This construction avoids the constitutional infirmities inherent in the construction urged by HOME. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). In sum, HOME’S aggregation theory of liability goes beyond the language or congressional intent of section 3604(c) and cannot be supported by the regulations interpreting this section. Moreover, the viability of this cause of action hinges on a statutory construction which raises serious first amendment concerns. We conclude that the District Court properly dismissed HOME’S claims which were not based on a discriminatory advertisement or proof of a discriminatory intent by defendant. III. For the foregoing reasons, we AFFIRM the judgment of the District Court dismissing appellant’s action. . It should be noted that HOME did not brief the issues related to a possible discriminatory message arising from the use of white models in a single advertisement. Its entire brief is devoted to a discriminatory message from an aggregate of advertisers. . HOME concedes that, with the exception of the use of all-white models, the individual advertisements are otherwise in compliance with the applicable statute and regulations. Thus, all of the advertisements contained on equal housing opportunity logotype, statement or slogan to indicate that the property is available to all persons, 24 C.F.R. § 109.30(a); did not use words to indicate a preference; and did not describe the property's location in a preferential manner. Further, defendant published a notice at the beginning of this advertising section to the effect that it will not knowingly accept an illegal advertisement and that all real estate advertised is available on an equal opportunity basis. Id. § 109.3o(d)(3). The dissent appears to suggest that we should analyze the use of all-white models in a vacuum, disregarding the other words and symbols used in an advertisement. In light of the other requirements imposed by the regulations, we find such an approach impractical and unnecessarily narrow. An advertisement must be considered in its totality. . The dissent appears to suggest that our interpretation of the ordinary reader standard is at odds with at least three other circuits, most notably the Second Circuit’s interpretation as stated in Ragin. Dissent at 657-59. The passage quoted above, however, makes clear that our interpretation of the ordinary reader standard comports with the Second Circuit’s interpretation. We merely take the additional step, apparently commended by the Ragin court, of concluding that a single advertisement which features a select number of white models does not, as a matter of law, state a cause of action pursuant to section 3604(c). The other two cases cited by the dissent are equally unsupportive of its allegation. See Colonial Village, 899 F.2d at 24; United States v. Hunter, 459 F.2d 205 (4th Cir.), cert. denied, 409 U.S. 934, 93 S.Ct. 235, 34 L.Ed.2d 189 (1972). The Spann court was not confronted with the issue before us, but dealt primarily with issues not related to the substantive claims under the FHA. The dissent cites to the lone comment in the opinion addressing the ordinary reader standard: "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.” Spann, 899 F.2d at 29 (citations omitted). This comment provides little, if any, insight into the issues presented to this court. In Hunter, the court applied the ordinary reader standard to an advertisement using the phrase "white home.” With little analysis, the Hunter court concluded that such advertisements indicated a preference. Thus, of the three cases cited by the dissent, only one case — Ragin—addresses the issue before us in the context of the ordinary reader standard, and that case provides support for our decision today. . The dissent mischaracterizes our holding, concluding that we proclaim a per se rule that such ads could never cause a reasonable person to feel excluded, unless some other factor were added. Dissent at 658-59. Obviously, our holding recognizes the viability of a claim under section 3604(c) based on an allegation that a particular advertiser pursued an advertising campaign which led to the repetitive publication of advertisements depicting a large number of all-white models. Further, an advertisement depicting a large group of all-white models could give rise to a section 3604(c) claim. Of course, a publisher also remains liable for publishing advertisements which are discriminatory on their face or with the intent to discriminate. Placed in its proper perspective, our holding is not as limited or rigid as the dissent would suggest; nor does it lead to an absolute rule that such advertisements could never be grounds for a section 3604(c) claim. In the final analysis, the dissent fails to address the primary reason creating our difference of opinion: the application of our legal conclusions to HOME’s complaint. In other words, our dispute essentially concerns whether HOME’s complaint states a viable cause of action pursuant to section 3604(c). The dissent merely quotes from HOME’S complaint to reach its conclusions and ignores the concessions and clarifications made by HOME in its brief and at oral argument regarding its claims. Once these clarifications are taken into account, it becomes clear that HOME’S complaint cannot overcome a Rule 12(b)(6) motion. The dissent’s conclusions, while noteworthy, do not apply to the actual claims made in this case based on the record before us. The relevant portion of the oral argument states: Plaintiff’s Attorney: I would also like to just go back to the pleading in this complaint. We have a thousand ads over a two-year period and in only nine are blacks represented and we allege that that indicates a racial preference. J. Kennedy: But, it's not any particular ad that indicates — what you're saying is that adding all the ads in together — the effect is to have a racial preference. Plaintiffs Attorney: That — we are saying that in the complaint, yes. ****** J. Kennedy: The problem is in a newspaper there are, let's say, 30 ads all put in by different people and if no one taken alone is discriminatory, you are saying that ... taken as a whole the page is discriminatory. That’s basically what you’re saying. Plaintiffs Attorney: The pages over 20 years. Yes. . Our holding, therefore, does not address the viability of a claim under section 3604(c) based on an allegation that a particular advertiser repeatedly published advertisements which depict all-white models in a particular publication. . The dissent states that a racial preference could be found if “the same or related advertisers or publishers” advertised repeatedly with all-white models. Dissent at 662. Neither the statute nor the regulations mention such a term, and it is unclear what the dissent means. Nowhere in HOME's complaint is it mentioned that the same advertiser or "related" advertisers repeatedly submitted an advertisement with all-white models. . When discussing this claim, we will refer to this theory of liability as the "aggregation theory of liability" and to the message allegedly created and communicated as the "aggregate message." . The dissent attacks our distinction between multiple advertisements by a single advertiser and multiple advertisements by unrelated advertisers and concludes that "[t]he different source of advertisements does not make those advertisements any less `particular.'" Dissent at 660. This reasoning misses the mark, however. It is not the particularity of the individual advertisements that is at issue, but the particularity of the aggregate message. As to multiple advertisements by one advertiser, the aggregate message and the message of each advertisement refer to the same piece of property. Multiple advertisements by unrelated advertisers lack this specificity. . HOME alleges that the Ragin court's analysis is instructive, but the Ragin court assumed that the individual advertisements were illegal. Once this is established, the advertisements fall outside the ambit of first amendment protection. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563-64, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980) (concluding that the government may ban commercial messages "that do not accurately inform the public about lawful activity"; that are "more likely to deceive the public than to inform it"; or that is "related to illegal activity"). By contrast, the instant claim concerns the publication of legal advertisements which, in the aggregate, produce an allegedly discriminatory message. Because the communication is neither related to an illegal activity nor misleading, the government's power is more circumscribed. Id. at 564, 100 S.Ct. at 2350. Further, even if these advertisements were considered illegal, the District Court's reasoning does not comport with traditional first amendment analysis of commercial speech. When analyzing the constitutional protections accorded a particular commercial message, a court starts with the content of the message and not the label given the message under the relevant statute. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (analyzing first amendment protection accorded to advertisement for abortion notwithstanding statutory language making such advertisements illegal). Starting with the language of a statute would foreclose a court from ever considering the constitutionality of particular commercial speech because the statute would label such speech illegal and thus unprotected by the first amendment. Constitutional review by a court is not so easily circumvented. . It is difficult to define the speech at issue here. Although the instant claim implicates the speech of the individual advertisements, it does not target this speech as the basis of its liability. Rather, it is the speech "created" by the publisher through the act of designing a layout of advertisements for a page, or by publishing a series of advertisements depicting virtually all-white models, that is at issue here. . It should be noted that the statute’s proscription is not limited to messages indicating a racial or color preference, but includes preferential messages based on religion, sex, handicap, familial status, or national origin. The statutory protection of these various groups heightens the impracticality of the approach suggested by the dissent. . In attacking the majority, the dissent points out that a member of this panel used the word “quota.” Apparently, the use of this word has caused the dissent to think that our decision is based on a motive unrelated to our reasoning. This is unfortunate and unnecessary; we have forthrightly stated our reasons leading to our conclusions. Perhaps the best response to this ad hominem argument is to quote from the relevant portion of oral argument: Plaintiffs Attorney: Fifthly, I would submit that this court should consider the— J. Suhrheinrich: If we go by the ordinary reader’s standard, does that then require every ad to have a quota of certain minorities? Plaintiffs Attorney: No sir. I. Suhrheinrich: How else then does the ordinary reader look at an ad that is, say, all white, and say this is a racial preference or it isn’t? Plaintiffs Attorney: I think it is altogether possible to have one single ad that does indeed indicate a racial preference. It is a question of fact, it’s a question for the jury. But, a single ad with nothing but white people in it and other symbols of exclusion or racism can indicate to the ordinary reader that— J. Suhrheinrich: But if it’s an ordinary reader, doesn’t anyone in order not to be sued then must put in a quota-type system. Plaintiffs Attorney: No sir, and the courts have said that they are not requiring any kind of proportionality that— J. Suhrheinrich: But you say that, but any time you have an all white ad it becomes a question of fact, so one subjects himself to a lawsuit every time — under your theory — every time they have an ad that does not have minorities in it. Plaintiffs Attorney: I think that as a practical matter that there is not going to be the mounting of a lawsuit over a single ad— J. Suhrheinrich: But, nonetheless, that is the risk and so in order for any publisher to ensure that he is not subject to a lawsuit, then you would advocate a quota system? Plaintiffs Attorney: Well, if he wants a thousand per cent of assurance, yes. J. Suhrheinrich: How about just a 100%. Plaintiffs Attorney: No system operates on that margin (interrupted) J. Suhrheinrich: Beg your pardon? Plaintiffs Attorney: I say, if he wants a thousand percent assurance that he’s not going to be sued, yes, the answer is yes— J. Suhrheinrich: If you were their lawyer, that’s what you would instruct them to do? Plaintiffs Attorney: I wouldn’t necessarily instruct them on that, no. Because I think that they would be ... anybody would be foolhardy to sue over a single ad that did not have a minority represented because the newspaper is going to be entitled to the instruction that strict proportionality is not required. ****** Plaintiffs Attorney: Judge Suhrheinrich, in response to the question of whether or not each ad would have to have a, what you call a "quota" of minorities— J. Kennedy: Well, at least a representation of a minority. J. Suhrheinrich: I understand that that’s kind of an inflammatory word maybe today, but, and I don’t mean it that way in that, I’m just grasping for what is the standard here and how you fulfill it. * * * * * * J. Keith: I’m just sorry that my colleague and friend Judge Suhrheinrich used the word "quotas” because that is a bad word and it is one that just sets fire in the minds of white Americans, and I don’t think there is anything in here about quotas. We’re talking about 20 years of a pattern that may or may not prove a pattern that discriminates and what the plaintiffs are asking — that let this matter go before court or a jury and determine as a factual matter whether, in fact, this is so. The dictionary supports the use of this word in the instant context. Webster’s Third New International Dictionary defines "quota” as "1: a proportional part ... 4: a fixed number or percentage of minority group members who may be admitted into some activity or institution. ...”
KEITH, Circuit Judge, dissenting. The majority opinion is a distressing evisceration of a remedial statute. The majority pays lip service to the salutary goal of fair housing. It reaches a result, however, which is at odds with the law and its legislative purpose of achieving fair housing opportunity. It is clear to me that the district court erred when it dismissed plaintiff’s advertising discrimination complaint against the Cincinnati Enquirer (“Enquirer ”). The majority parses the complaint into two separate theories and then attacks each. First, the majority states that, as a matter of law, a single advertisement cannot violate the Fair Housing Act (the “Act”) for the reason that it exclusively uses white models unless the number of models is “large” and more than “select.” Majority opinion at 648 n. 3 and 4, 653. Second, the majority concludes that even an aggregation of advertisements using only white models cannot constitute a violation of the Act by a publisher if the advertisements are from different advertisers. I disagree. While perhaps not all advertisements in which all of the models are white would violate the Act, it is a factual issue whether some of the advertisements violate the Act. Further, I interpret the Act, which extends its prohibition of discriminatory use of models not just to the advertiser, but to the publisher, to similarly extend liability to the publisher for an indication of racial preference which is apparent only when looking at an aggregation of advertisements. Accordingly, I respectfully DISSENT. I. There has been no trial in this case. The only issue is whether plaintiff should have an opportunity to present its case. Plaintiffs have broad latitude in filing a complaint. The court must accept as true all factual allegations in the complaint. The motion must be denied unless plaintiff “undoubtedly can prove no set of facts in support of [its] claims that would entitle [it] to relief.” Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.) (citations omitted), cert. denied, — U.S. -, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990). The majority distorts HOME’S claim and ignores the proper legal standards for a Fed.R.Civ.P. 12(b)(6) motion in order to dismiss and thereby reaches a ludicrous result. In the majority’s attack of HOME’S first argument, it states that the exclusive use of white models could be a factor in determining whether an advertisement violates the Act, but finds that the exclusive use of white models alone cannot state a claim under the Act. The majority argues that there is a fixed number, so far only defined as large and more than select, at which it believes that an issue of fact arises from the exclusive use of white models. Majority opinion at 648 n. 3 and 4, 653. This interpretation completely ignores the text and purpose of the Act. A. The Act provides that “[i]t is the policy of the United States to provide ... for fair housing throughout the United States.” 42 U.S.C. § 3601. The Act makes the following practices 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. 42 U.S.C. § 3604(c). Consistent with the Act’s remedial purposes, the Department of Housing and Urban Development (“HUD”) has promulgated regulations pursuant to the Act which address the issue of human models used in advertisements. See 24 C.F.R. §§ 109.25-.30. The regulations state in part: Human models in photographs, drawings, or other graphic techniques may not be used to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin. If models are used in display advertising campaigns, the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. Models, if used, should portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status or national origin, and is not for the exclusive use of one such group. 24 C.F.R. § 109.30(b). As an example of advertising which may be discriminatory, the regulations state that “[s]uch selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preference for one sex or the other, or for adults to the exclusion of children.” 24 C.F.R. § 109.25(c). Moreover, HUD stated in its response to comments on 24 C.F.R. §§ 109.25(c), 109.-30(b): The term “reasonably representing” is inten[de]d to assure that models will convey a message of general inclusiveness of persons covered by Title VIII, not literal display of each minority group. For example, use of two white models, one male and one female[] would not convey such inclusiveness. In a small town with no minority groups other than blacks, however, use of two models of different sexes, one white and one black, would “reasonably represent” majority and minority groups of both sexes. 45 Fed.Reg. 57,105 (1980) (emphasis added). B. Plaintiffs complaint alleges that the use of human models personalizes the advertisement and encourages consumers to identify themselves in a positive way with the models and housing featured. It further states that human models often represent actual or potential purchasers or renters, or the type of potential purchasers or renters that the real estate owner has targeted as desirable occupants. Joint Appendix at 9 (Complaint para. 14). HOME asserts two claims. First, HOME alleges that the-Enquirer violated the Act by publishing advertisements that contained white models only. The complaint in paragraph nine alleges that in group photographs in the real estate section, the groups consist exclusively of white people. Joint Appendix at 7. Second, HOME alleges that the Enquirer violated the Act because it published advertisements that in aggregation produced a virtually all white advertising spread. II. With regard to the first claim, HOME does not claim that any advertisement in which all of the models are white is in violation. Rather HOME properly claims that it is an issue of fact whether a reasonable person, looking at some of the advertisements that HOME would undoubtedly present as proof at trial, would find that the exclusive use of whites in the particular advertisements indicates that whites are preferred tenants or purchasers. HOME’S claim satisfies the requirements of the Act. The majority is proclaiming a per se rule that such advertisements never could cause a reasonable person to feel excluded, unless some other factor, such as repetition by a particular advertiser, were added or the number of models is “large.” A. The crux of the dispute between the majority and dissent on this point is as follows. The dissent believes it is an issue for a fact finder whether an advertisement containing white models exclusively indicates a preference. At least it should be determined on summary judgment whether a reasonable fact finder could find a preference. The majority insists on a set minimum number of models that must be alleged in a complaint. The majority, however, fails to disclose the judicially mandated minimum number of models. Thus it appears that the majority wishes the plaintiff to refile the complaint specifying the number of models in the group photographs which contain white models only. On a subsequent appeal, the majority will decide whether it believes the alleged number is enough to allege a violation of the Act entitling plaintiff to an answer. If the majority believes there is a fixed number of models in an advertisement with white models only which is required as a minimum for a claim to be stated, it seems as a matter of judicial economy that the number should be stated. All that the language of the Act requires is that the advertisement indicate a preference. HOME has alleged that advertisements in the Enquirer indicate a preference. It has substantiated that claim with further allegations that the Enquirer has printed advertisements with white models only and that some of these advertisements included group pictures. The majority says that this is still not enough even to make it a factual dispute whether or not the advertisements indicate a preference. With no basis in the statute, it insist that there must be a “large” number of models in order for any reasonable person to conclude that an advertisement that exclusively uses white models indicates a preference. The complaint in the instant case alleges a long-standing pattern of publishing advertisements with white models only, including group photographs. The Second Circuit stated in Ragin, concerning a complaint nearly identical to that filed by HOME, “[gjiven the ordinary reader test, it can hardly be said that these allegations are insufficient....” Ragin v. New York Times Co., 923 F.2d 995, 1001 (2d Cir.1991). The Second Circuit in Ragin held that “a trier plausibly may conclude that in some circumstances ads with models of a particular race and not others will be read by the ordinary reader as indicating a racial preference.” Id. at 1000. I believe the law mandates the Sixth Circuit reach the same conclusion. The majority quotes Ragin out of context from where the Ragin court stated that an advertisement featuring a couple of one race would seem insufficient as a matter of law for a claim under § 3604(c). Majority at 648. The Ragin court found that the complaint in that case could not be dismissed based on allegations, like those in the instant case, of only one percent of black models over a twenty year period. The quote excerpted by the majority appears in the section of the Ragin opinion, after the court has concluded that the motion to dismiss must be denied, where the court provided guidance to the district court on how to evaluate the evidence admitted during the trial of the case. Ragin, 923 F.2d at 1001-02. While I might disagree with how the Ragin court would evaluate the evidence under § 3604(c), we are in agreement that the issue presented in the instant case — whether pictures using exclusively white models would cause a reasonable black person to feel that people of another race are preferred clients — is a dispute to be determined on the evidence submitted, not on a motion to dismiss. The Ragin court correctly notes that all that is required of plaintiff’s claim is that it is plausible. As the Second Circuit noted, “[ojrdinary readers may reasonably infer a racial message from advertisements that are more subtle than the hypothetical swastika or burning cross, and we read the word ‘preference’ to describe any ad that would discourage an ordinary reader of a particular race from answering it.” Ragin, 923 F.2d at 999-1000. It is clear to me that a reasonable person could conclude that advertisements that picture white models only could lead a black person to conclude that whites are preferred clients. The Second Circuit has recognized that the relevant question is whether a member of an excluded race would feel excluded. The test is not whether a member of the included race would feel excluded. Id. After all, the Act, by addressing advertisements as well as the actual sale and rental, targets self-selection by readers which occurs before the initial inquiry. Id.; Hunter, 459 F.2d at 214-15. This self-selection occurs when members of the excluded race do not even bother to apply for the property advertised because the advertisement implicitly communicates that the included race is preferred. I conclude that if advertisements with white models only were presented to a jury, the jury could reasonably find a preference. In addition to presenting the advertisements for the jury to evaluate, plaintiff is also entitled to support its claim with expert testimony. Expert testimony might demonstrate the subconscious effects of advertisements with models. An expert might demonstrate that despite the absence of a conscious message, the subconscious message of such an advertisement is to indicate a preference. See Saunders v. General Servs. Corp., 659 F.Supp. 1042, 1058 (E.D.Va.1987). The majority made its factual finding without an opportunity to listen to this testimony. In substituting its judgment for the jury’s, it concludes that it would not receive a message of exclusion by looking at an exclusively white advertisement unless the number of models alleged was “large.” Models used in print advertising are designed to send a message to the reader. See Saunders, 659 F.Supp. at 1058. But even if the messages were unintended, and, therefore, purely accidental, the exclusive use of white models sends the subtle but distinct message of racial exclusion. “Blacks need not apply.” “Blacks are not welcome.” The ability of exclusive advertising to transmit these messages of preference is so obvious as to require no citation of authority. Nevertheless, I note the Saunders court’s analysis in this area is particularly cogent. Judge Merhige described a housing brochure that had almost no black models. He discussed expert witness testimony regarding this issue as well as the defendant's rationalizations. Saunders, 659 F.Supp. at 1058-59. In that case, Judge Merhige concluded that the “natural interpretation” of a rental housing brochure virtually devoid of black models was “to indicate that [the subject] apartment complexes are for white, and not Black tenants, thus discouraging Blacks from seeking housing there.” Id. at 1058. The majority distinguishes the message sent by the exclusive use of white models when there are many models from the message sent when there is only a “select” number. The majority has presented no authority for this distinction. This distinction assumes that blacks looking at advertisements that picture exclusively white models would not feel that another group is preferred unless the advertisement includes a large number of models. The majority certainly has not shown that the scientific community considers this assumption indisputable. I, therefore, conclude it is a factual issue. B. The regulations also demonstrate that exclusivity of models in an advertisement may indicate a racial preference, thus violating the Act. As an example of advertising which may be discriminatory, the regulations state that “[s]uch selective advertising may involve the use of human models of members of only one sex, or of adults only, in displays, photographs or drawings to indicate preference for one sex or the other, or for adults to the exclusion of children.” 24 C.F.R. § 109.25(c) (emphasis added). Thus picturing one group and not another is one of the few prototypes of discrimination listed in the regulations. Admittedly § 109.25(c) says “may,” but that thereby indicates that it is ultimately a question of fact to be decided by the fact finder. While not conclusive, such depictions certainly raise a plausible question to be decided by a jury. Additionally, HUD’s response to comments on the regulations makes it very clear that exclusivity of models in an advertisement may indicate a racial preference. Specifically, HUD concluded that an advertisement with two models, both white, would not convey inclusiveness, thus possibly indicating a preference. 45 Fed.Reg. 57,105 (1980) (quoted supra at 656). While the comment may be only a guideline and not a strict rule of liability, it is clear to me that HUD has determined that such advertisements at least raise a factual issue as to whether they indicate a preference. The majority has found HUD’s determination beyond the pale of the reasonable. This case is here on a motion to dismiss. In that context, the argument made by the majority is absurd. This is not even a motion for summary judgment where the court would at least be determining which decisions a reasonable jury could make on the facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Here the facts and inferences must be assumed in plaintiff’s favor. Meador, 902 F.2d at 475. It is a question of fact whether a reasonable person of the excluded race would look at the advertisements and see a preference. Therefore a Rule 12(b)(6) dismissal is unquestionably improper. The dispute over this claim revolves on the majority’s inability to see that people in the minority, when excluded, are likely to feel that others are preferred. The majority has recognized that if there is a large number of whites and no blacks then the blacks are perhaps conspicuously absent. It fails to recognize that even when the numbers are few, the minority viewer still sees an advertisement that features others, but excludes people like him or her. Congress left liability under the Act to the decision of a reasonable fact finder. HUD determined that in fact a small number of models, if not reasonably representative, is suspect. Courts that have examined complaints alleging pictures of models without minorities have found these allegations were sufficient for a claim. The majority, however, refuses to recognize even the plausibility that members of a minority group, looking at an advertisement for housing with members from the majority and not members of the minority, might reasonably feel that the advertiser would prefer someone else. It is very disappointing that this Court insists on taking such a course. III. The majority also rejects HOME’S second claim, that the Enquirer violated the Act because the aggregate of real estate advertisements displayed by the Enquirer contains almost exclusively models who are white. The majority presents an unsupportable argument to achieve this result, relying on statutory language, the regulations adopted by the concerned agency (HUD), and the purpose of the Act. I find that all three of these considerations indicate that HOME has alleged a claim cognizable under the Act. A. Turning first to the statutory language, the Act declares it unlawful to publish “any notice, statement, or advertisement, with respect to the sale or rental of a dwelling” that indicates a racial preference. 42 U.S.C. § 3604(c) (emphasis added). The majority wishes to read the prohibition of “any” “advertisement” to be limited to particular advertisements and therefore the Act does not prohibit advertisements which collectively create such an inference. Majority Opinion at 649-50. I find this a tortured construction that inappropriately limits the ordinary meaning of a prohibition of “any” advertisement. Just as “any” advertisement applies to someone wh