The Fair Housing Act’s prohibition of discriminatory housing statements presents a puzzle. This provision regulates housing speech, such as advertisements and notices, more robustly than acts of housing discrimination (e.g., discriminatory refusals to rent or sell). It extends liability regardless of intent and, unlike other provisions in the Fair Housing Act, does not exempt small-scale landlords from liability. Making discriminatory housing statements legally actionable also burdens commercial speech, diverts enforcement resources from discriminatory refusals to rent or sell, and gives rise to other, often more costly, forms of communicating preferences in residential real estate transactions. Why accord such strong protection to regulation of housing speech? This Article suggests an answer. A wealth of empirical research in social psychology establishes that social norms are one of the most potent methods of reducing prejudice. Our beliefs about what others think, particularly others who are similar to us or part of our group, shape the attitudes and behaviors we express toward people of different races and other protected classes under the Fair Housing Act. This Article assesses the Fair Housing Act’s prohibition of discriminatory housing statements, as well as recent conflict between the Fair Housing Act and the Communications Decency Act and debate about roommate advertisements, in light of the power of social norms.
Stephanie M. Stern,
A Social Norm Theory of Regulating Housing Speech Under the Fair Housing Act,
84 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol84/iss2/7