The harder question is whether the Recorder "prints or publishes" notices or statements with respect to the sale or rental of a dwelling.
The first principle of statutory construction is to always look to the plain meaning of the language itself. In the context of the phrase "to make, print, or publish, or cause to be made, printed, or published," the most obvious meaning of "print" is to perform all the necessary processes connected with the act of producing a book, magazine, newspaper, flier, or the like. The sparse legislative history of 42 U.S.C. § 3604(c) indicates that indeed, this is the meaning Congress most likely had in mind when it drafted the statute. See Hearings on S.1358, S.2114 and S.2280 before the Subcommittee on Housing and Urban Affairs, Senate Committee on Banking and Currency, 90th Cong. 1st Sess. at 386, 388 (1967)(George Meany's testimony concerning discriminatory advertisements in newspapers); Hearings on S.1026, S.1318, S.1362, S.1462, H.R. 2516, H.R. 10805 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 90th Cong., 1st Sess. 233 (1967).
As we have already noted in examining the duties of a Recorder of Deeds, the Recorder does not do anything that is akin to printing or preparing for distribution a magazine, newspaper, or flier. The Recorder merely accepts deeds and other documents, indexes them, and stores a record of them in the order in which they were received. Such acts are those of an archivist rather than those of a printer. The Recorder of Deeds, therefore, does not "print" anything within the meaning of § 3604(c).
Just as the Recorder of Deeds does not print any notices or statements indicating preference or discrimination, neither does he publish any such notices or statements. "To publish," in common parlance, means "to declare publicly: make generally known: Disclose, circulate." Webster's Third New International Dictionary (1967). The word "publish", as do its synonyms "declare", "disclose", and "announce", carries with it the implication that the one doing the publishing, the publisher or announcer, has some knowledge of and intent to proclaim the words uttered. He intends that people hear his words and that they react to them. This is true of a newspaper publisher, a book publisher, a radio announcer, a television reporter, and even a grantor of a deed containing a racially restrictive covenant. All of these actors "publish" their statements and, at the same time, have knowledge of what they are saying, and an intent to say the same. In short, the act of "publishing" is an active, knowing, and purposeful act.
The process that the Recorder of Deeds goes through in accepting deeds for recording and in placing them in the record is far from active, knowing, and purposeful. The Recorder in Pennsylvania need have no knowledge of the contents of the deeds he receives. Indeed, in this case, even if the Recorder were aware of the language of the deed, he would not be aware, by simply reading it, that it makes reference to a decades-old restrictive covenant that is no longer valid. By placing such deeds in the record, he is not proclaiming or announcing their contents. He has no intent that specific statements ever be read by or that they have an effect on anyone. Rather, he is merely preserving them in such a way that members of the public, should they so choose, may search them out and discover their contents. The Recorder does not know, and does not care what each individual deed says. He has no intent to make specific statements contained in the deed generally known, whether discriminatory or not, nor could he have such intent, for he does not even know of the existence of such statements. The Recorder of Deeds is no more a publisher than is an archivist, a preserver of historic documents. As the Pennsylvania courts have held, the Recorder is purely a ministerial officer, a mere custodian of documents placed into the record, perhaps even published, by members of the public.
Although we have already decided that a Recorder of Deeds neither makes, nor prints, nor publishes the contents of documents received by him, and therefore that § 3604(c) cannot apply to the Recorder, there is a second reason, based on the language of the statute itself, that § 3604(c) cannot and does not apply to the Recorder. The third element of the statutory proscription is that the notice, statement, or advertisement must be "with respect to the sale or rental of a dwelling." Although deeds to real property are typically received after the transfer of ownership of that property, as the division of the D.C. Circuit Court of Appeals held in Mayers v. Ridley, "the Recorder does not offer property for sale or rent, nor is he in any way connected with the commercial real estate market." 465 F.2d at 657. The legislative history indicates that by including the phrase "with respect to the sale or rental of a dwelling", Congress intended to reach the activities of "property owners, tract developers, real estate brokers, lending institutions, and all others engaged in the sale, rental, or financing of housing." Hearings on S.3296 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong, 2d Sess, pt. 1, at 84 (1966)(Attorney General Katzenbach's testimony). The Recorder of Deeds is in no way "engaged in the sale, rental, or financing of housing." His actions simply record the transactions without any regard to the terms and conditions of the sale or rental.
After examining the language of § 3604(c), and the limited legislative history of that section, we are forced to draw the conclusion that § 3604(c) does not apply to the acts of the Recorder of Deeds and particularly to the acts of the Recorder in this case. The Recorder in this case has merely accepted for recording a deed meeting all of the requirements of the Pennsylvania recording statutes, a deed that is, on its face, free of any improper or discriminatory matter. The act of accepting such a deed, or any deed at all, and placing it in the record is not a publication within the meaning of § 3604(c), nor is it done with respect to the sale of the real estate. As the division of the D.C. Circuit Court of Appeals stated in its opinion,
The Recorder of Deeds, impartial in thought as well as action, is not giving the approbation of the state to the substantive contents of the deeds filed. The Recorder, the cold steel safety deposit box of the real estate industry, merely preserves documents. Although he acts on behalf of the government, he acts as a studiously neutral repository.
465 F.2d at 658 (Judge Tamm's opinion)(emphasis in original). As a neutral repository, the Recorder cannot and does not publish a thing, nor does he violate § 3604(c).
II. THE § 1982 CLAIM.
In addition to their Title VIII claim, plaintiffs make a claim under 42 U.S.C. § 1982. This section guarantees to all citizens of the United States "the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." The case law has interpreted this statute to protect "the right of black persons to hold and acquire property on an equal basis with white persons and the right of blacks not to have property interests impaired because of their race." City of Memphis v. Greene, 451 U.S. 100, 122, 67 L. Ed. 2d 769, 101 S. Ct. 1584 (1981). Accordingly, the Supreme Court has required plaintiffs alleging a violation of § 1982 "to demonstrate some impairment of property interests." Id. at 122, fn. 35.
Plaintiffs cannot make the required demonstration. The restrictive covenant that allegedly burdens their property is unenforceable, and has been since 1948 when the Supreme Court declared such covenants unenforceable in Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 836 (1948). Further, the Supreme Court has held that § 1982
does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling. It does not prohibit advertising or other representations that indicate discriminatory preferences. It does not refer explicitly to discrimination in financing arrangements or in the provision of brokerage services.