A Social Norm Theory of Regulating Housing Speech Under the Fair Housing Act.

• Author: Stern, Stephanie M.

INTRODUCTION

Section 3604(c) of the Fair Housing Act ("FHA"), (1) which prohibits discriminatory housing advertisements and statements, compels some surprising results. It regulates the content of commercial speech in the absence of an accompanying or subsequent discriminatory act (e.g., refusal to sell or rent). (2) For example, a landlord who advertises "no Jews" or "prefer no children" in a newspaper advertisement has violated [section] 3604(c) even if he or she subsequently rents to a Jewish person or family with young children. (3) Oral statements that indicate preference or discrimination, such as asking a potential buyer who phones to inquire about a property if he or she is white, similarly violate [section] 3604(c). (4)

Section 3604(c) was controversial at its inception and remains so today. Scholars have called the prohibition on discriminatory housing statements and publications the FHA's "most intriguing provision," while critics have alleged it infringes on freedom of speech, delivers minimal benefits, and entraps small-scale landlords or roommate seekers who are unaware of its prohibitions. (5) Section 3604(c) presents puzzles that have tugged at housing policymakers and scholars since the FHA's inception. For example, the regulation of housing statements and advertisements is more expansive than the FHA's treatment of discriminatory refusals to rent, sell, or lend. The major exemptions to liability under the FHA do not apply to [section] 3604(c). (6) In addition, unlike other anti-discrimination laws, [section] 3604(c) does not require that the defendant have discriminatory intent or, as discussed above, have committed a discriminatory act in a real estate transaction. (7) Why does [section] 3604(c) impose stricter liability regardless of intent, with fewer exemptions, than the FHA provisions addressing actual acts of housing discrimination? One wonders why the FHA, which scraped through the legislative process amid controversy and resistance, ultimately included such a robust provision. (8)

Psychology research on social norms suggests some answers. Social norms research reveals important reasons the FHA should regulate speech despite its costs--and why it should do so robustly and regardless of the speaker's intent. Social norms refer to expectations for individual behavior or attitudes derived from the norms of a group that the individual identifies with or values. (9) These expectations define and reaffirm the identity and composition of the group. (10) Communications, both written and oral, are primary sources of information about the prevailing norms of the group. (11) Statements and other forms of communication affect listeners' views of other groups and their behaviors toward members of "outgroups." (12) What we believe others think about groups, such as African-Americans, Christians, or obese individuals, is a primary determinant of our own prejudices.

A substantial body of empirical research shows that reducing the appearance of prejudiced attitudes or acts of discrimination can lessen the expression of prejudiced attitudes and promote egalitarian behaviors in listeners. (13) Specifically, statements that indicate a norm or consensus among a group or that activate a pre-existing norm can shift the attitudes expressed by listeners in the direction of that statement. (14) Even highly prejudiced individuals report lower levels of prejudice and more willingness for contact with members of other groups after they learn that members of a group they identify with (e.g., fellow university students) hold unprejudiced attitudes. (15) The limited number of studies that have examined behavior have found that exposure to discriminatory or egalitarian social norms about a group also affects listeners' subsequent behaviors and interactions with that group. (16) As social psychologists Gretchen Sechrist and Charles Stangor observe, "If there is any lesson to be learned from the history of social psychology, it is that attitudes change not so much through persuasive appeals from others or even from direct experience as from perceptions about the beliefs of important in-group members." (17)

Viewed through this lens, constraining the appearance of prejudice promotes non-discriminatory norms in real estate transactions. Research showing the effect of even a single statement on listeners' bias supports the legislative decision to deny exemptions to [section] 3604(c) claims. (18) Applying a social norms framework to [section] 3604(c) also makes evident why violations should be judged from the standpoint of an "ordinary listener," which captures the normative injury, rather than the standpoint of the speaker's intent. (19) Social norms offer a new perspective on controversial FHA cases about extending standing to non-profit organizations or white residents claiming injuries from segregation. (20) While claiming an effect on social norms cannot be the sole basis of standing --such an approach would obliterate standing as a doctrine of restriction--the normative injuries from discriminatory housing speech are one factor that support the generous standing courts have already afforded to fair housing litigants. (21)

More globally, the social norms research counsels a shift from viewing the purpose of housing speech regulation as solely to address emotional harms to members of protected groups or to prevent listeners from mispercciving

their legal obligations under the FHA. (22) Housing speech regulation also performs a task critical to the FHA's goal of promoting integration: it promotes social norms against expressing housing prejudice in words or deeds. (23)

Social norms research has implications as well for contemporary debates about housing speech. Recently, [section] 3604(c) has fulminated debate over its application to the Internet in online housing advertisements and posts. (24) The prejudice-reducing power of communications highlights the welfare gains that should be measured against internet providers' interests in determining liability for discriminatory housing posts on websites and raises concerns about court decisions greatly cabining liability under the Communications Decency Act ("CDA"). (25) A social norm framework also challenges the widely-accepted notion that associational rights should trump housing speech regulation when people advertise for roommates. (26) It is not clear why the interest in selecting a roommate outweighs normative harm from discriminatory advertisements, particularly because the person advertising may lawfully decline a roommate or home-sharer on the basis of a protected characteristic under exemptions in the FHA.

This Article presents an empirically grounded model of social norms in housing speech regulation. It unfolds in six parts. Part I describes the surprising robustness of [section] 3604(c) in light of the legislative history of the FHA and the social costs of this provision. Part II explores the extensive psychology research on the effect of discriminatory statements on prejudice. Part III argues that the impact of discriminatory housing speech on social norms provides a potent justification for [section] 3604(c). Part IV describes how seeming puzzles of [section] 3604, including the non-applicability of FHA exemptions, lack of an intent requirement, and broad standing, are no longer surprising in view of the strong normative effects of discriminatory statements. Part V notes some of the limitations of social norms for fair housing and the goal of residential integration. Turning to recent controversies, Part VI addresses the implications of social norms research for website providers' liability for discriminatory housing statements posted on their websites and the debate over [section] 3604(c)'s applicability to roommate advertisements.

1. THE FAIR HOUSING ACT'S REGULATION OF HOUSING STATEMENTS

   The FHA (27) was enacted in 1968 amid growing concern about racial segregation and African-American ghettos. (28) Racial segregation in housing had burgeoned in the real estate industry, as landlords, sellers, brokers, and lenders refused to transact with African-Americans, Jews, and other groups. (29) Government "redlining" had also narrowed opportunities for minorities by systematically undervaluing properties in inner-city neighborhoods. (30) Political organizations, such as the National Association for the Advancement of Colored People ("N AACP") and the National Committee Against Discrimination began to lobby, unsuccessfully, for housing civil rights legislation in the early 1960s. (31) Following a number of urban riots, President Lyndon B. Johnson appointed a group, known as the Kerner Commission, to study the causes of civil unrest. (32) The Kerner Commission cited housing segregation and discrimination and it recommended that Congress adopt anti-discrimination housing legislation. (33)

   The FHA initially struggled to gain traction for passage. (34) The House passed a fair housing bill in 1966, and the Senate sponsored a bill in 1967. (35) In 1968, Senators Walter Mondale and Edward Brooke offered a fair housing amendment to a more general civil rights bill passed by the House, which was withdrawn in favor of a fair housing amendment by Senator Everett McKinley Dirksen. Senator Dirksen's amendment became the basis of the FHA. (36) A few days after the assassination of Martin Luther King, the House passed the FHA. (37) The goals of the statute, as elucidated in its legislative history and subsequent interpretation by the United States Supreme Court, were to reduce discrimination and advance integration--particularly racial integration between African-Americans and whites. (38) These goals will feature prominently in this Article's analysis of the normative benefits of housing speech regulation.

   The FHA prohibits discriminatory housing statements, as well as discrimination in housing transactions and lending. Specifically, the FHA forbids refusals to rent...