Media Law Handbook



11. What are the statutory requirements for newspaper publication of legal notices?
9. What is the law governing ads for lotteries, bingo, raffles and prize-giveaways?

10. How does the law regulate ads for housing sales and rentals?

The federal Fair Housing Act of 1968 (FHA),[176] which prohibits discrimination against anyone with regard to the sale or rental of housing based on “race, color, religion, sex, handicap, familial status, or national origin,”[177]   prohibits advertisements or publications in connection with the sale or rental of a dwelling that indicate a preference or discriminate based on any of these grounds.[178]  Under rules enacted and enforced by the federal Department of Housing and Urban Development (HUD) to implement the FHA, it is unlawful to “make, print or publish . . . any notice, statement or advertisement with respect to the sale or rental of a dwelling which indicates any preference, limitation or discrimination because of race, color, religion, sex, handicap, familial status, or national origin.”[179] 

Under HUD rules, examples of FHA violations include:

(1) Using words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are or are not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin.

. . . .

(3) Selecting media or locations for advertising the sale or rental of dwellings which deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin.

(4) Refusing to publish advertising for the sale or rental of dwellings or requiring different charges or terms for such advertising because of race, color, religion, sex, handicap, familial status, or national origin.[180] 

HUD takes the position in its guidelines that a publisher can be held liable for publishing an advertisement that, on its face, violates the FHA.[181]  This includes, but is not limited to, an advertisement that violates the following published HUD guidelines:

1.  Race, color, national origin.  Real estate advertisements should state no discriminatory preference or limitation on account of race, color, or national origin.  Use of words describing the housing, the current or potential residents, or the neighbors or neighborhood in racial or ethnic terms (i.e., white family home, no Irish) will create liability under [the FHA].

However, advertisements which are facially neutral will not create liability.  Thus, [the] use of phrases such as master bedroom, rare find, or desirable neighborhood [will not create liability under the FHA].

2.  Religion.  Advertisements should not contain an explicit preference, limitation or discrimination on account of religion (i.e., no Jews, Christian home).  Advertisements which use the legal name of an entity which contains a religious reference (for example, Roselawn Catholic Home), or which contain a religious symbol, (such as a cross), standing alone, may indicate a religious preference.  However, if such an advertisement includes a disclaimer (such as the statement “This Home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status”) it will not violate the Act.  Advertisements containing descriptions of properties (apartment complex with chapel), or services (kosher meals available) do not on their face state a preference for persons likely to make use of those facilities, and are not violations of the Act.

The use of secularized terms or symbols relating to religious holidays such as Santa Claus, Easter Bunny or St. Valentine’s Day images, or phrases such as “Merry Christmas”, “Happy Easter”, or the like does not constitute a violation of the Act.

3.  Sex.  Advertisements for single family dwellings or separate units in a multi-family dwelling should contain no explicit preference, limitation or discrimination based on sex.  Use of the term master bedroom does not constitute a violation of either the sex discrimination provisions or the race discrimination provisions.  Terms such as “mother-in-law suite” and “bachelor apartment” are commonly used as physical descriptions of housing units and do not violate the [FHA].

4.  Handicap.  Real estate advertisements should not contain explicit exclusions, limitation, or other indications of discrimination based on handicap (i.e., no wheelchairs).  Advertisements containing descriptions of properties (great view, fourth-floor walk-up, walk-in closets), services or facilities (jogging trails), or neighborhoods (walk to bus-stop) do not violate the Act.  Advertisements describing the conduct required of residents (“non-smoking”, “sober”) do not violate the [FHA].  Advertisements containing descriptions of accessibility features are lawful (wheelchair ramp).

5.  Familial status.  Advertisements may not state an explicit preference, limitation or discrimination based on familial status.  Advertisements may not contain limitations on the number or ages of children, or state a preference for adults, couples or singles.  Advertisements describing the properties (two bedroom, cozy, family room), services and facilities (no bicycles allowed) or neighborhoods (quiet streets) are not facially discriminatory and do not violate the [FHA].[182]

However, publishers are not liable for publishing advertisements that “might indicate a preference, limitation or discrimination” that is not “readily apparent to an ordinary reader.”[183] 

There are exemptions in the FHA.  For instance, religious organizations that own or operate noncommercial housing can lawfully limit the sale, rental or occupancy of such housing to persons of the same religion so long as membership in the religion is not restricted based on “race, color, or national origin.”[184]  Similarly, private clubs that offer lodging on a noncommercial basis can limit rental or occupancy to its own members or give them preference over nonmembers.[185]  Moreover, the provisions regarding familial status do not apply to “housing for older persons,” which means housing intended solely for occupancy by residents that are age 62 and older, or housing in which at least 80 percent of the units are occupied by at least one person age 55 or older. [186]  In addition, the FHA exempts single-family homes that are sold or rented by their owners so long as the owner does not own more than three such properties at a time, does not use the services of a real estate broker or rental service, and does not utilize advertisements that specifically violate the FHA, among other requirements.[187]

Websites that allow third parties to post housing advertisements may, or may not, have federal statutory immunity under § 230 of the federal Communications Decency Act (CDA)[188] when an advertisement violates the FHA, depending on the circumstances.  Generally, § 230 says that providers (and users) of “interactive computer services” are not legally liable for information posted on a website by a third party[189]  The legal immunity does not apply if the provider (or user) of the interactive computer service created or provided the third-party content or helped to do so.[190]  Courts have specifically applied the immunity provisions under the CDA to online housing advertisements that allegedly violate the FHA.  Online media sites that include third-party housing advertising, including classified advertisements, should be aware of the applicable scope and specifics of federal statutory immunity under the CDA, although a full discussion of this fairly complex area of federal statutory law is beyond the scope of this chapter.[191]



[176] 42 U.S.C. §§ 3601 et seq. 

[177] 42 U.S.C. § 3604(a)-(f) (quoting specifically from § 3604(c)).

[178] Id. at (c).

[179] 24 C.F.R. § 100.75(a).

[180] Id. at (c)(1), (c)(3)-(4).

[181] Guidance Regarding Advertisements Under § 804(c) of the Fair Housing Act, 2 (HUD Jan. 9, 1995),  The guidance does not address the use of human models in housing advertisements.  Id. at 1 n.1.  

[182] Id. at 3-4 (bold and underlined emphases in original have been omitted).

[183] Id. at 2.

[184] 42 U.S.C. § 3607(a).

[185] Id. 

[186] Id. at (b)(1)-(2).  Under the latter option, to qualify for the exemption, “at least 80 percent of the occupied units [must be] occupied by at least one person who is 55 years of age or older,” “the housing facility or community [must] publish[] and adhere[] to policies and procedures that demonstrate [such an] intent,” and the facility or community must abide by federal rules for “verification of occupancy.”  Id. at (a)(2)(C)(i)-(iii).

[187] 42 U.S.C. § 3603(b)(1).  If the individual owner of the single-family house is not the current resident at the time of the sale, or the most recent resident prior to the sale, then only one such sale is exempted within a 24-month period.  Id.  The FHA also exempts the rental of “rooms, units or dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his [or her] residence.”  Id. at (b)(2).  

[188] 47 U.S.C. § 230.

[189] Id. at (c)(1).  Under, the so-called “Good Samaritan” provisions, an interactive computer service does not loose the immunity for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”  Id.  

The term “interactive computer service” is defined in the CDA as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or service offered by libraries or educational institutions.”  Id. at (f)(s).  

The term “information content provider” is defined in the CDA as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.  Id. at (f)(3).

[190] See id. at (f)(2), (3).

[191] For an overview of online housing advertising and the CDA, published in 2010, see generally Rigel C. Oliveri, Discriminatory Housing Advertisements On-Line:  Lessons from Craigslist, 43 Ind. L. Rev. 1125 (2010).

11. What are the statutory requirements for newspaper publication of legal notices?
9. What is the law governing ads for lotteries, bingo, raffles and prize-giveaways?

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