(dissenting).
This is an appeal from a final judgment of the district court, entered after a non-jury trial on the merits, based on findings of fact, holding unconstitutional an ordinance of the Township of Willingboro, New Jersey. The district court’s findings of fact, far from being clearly erroneous, are compelled by the record. Those findings of fact amply justify the district court’s legal conclusion. Because I believe the majority has ignored or distorted the district court’s findings and has thereby substituted its own version of the facts for those found by the trier of fact, I cannot join in the court’s opinion. And because even on this unsupported version of the facts the majority has misstated or misapplied the governing principles of law in sustaining the challenged ordinance, I respectfully dissent.
Ordinance No. 5-1974, which we review in this case, is an amendment to Chapter XVII of the Revised General Ordinances of the Township of Willingboro, New Jersey. Chapter XVII in twelve sections deals comprehensively with the erection and maintenance of signs. The central operative provision of the chapter is § 17-2:
17-2 Legality
Signs may be erected and maintained in the Township of Willingboro only when the same comply with the provisions of this chapter, and it shall be unlawful to erect or maintain any sign at any place within the said Township of Willingboro when the same does not comply with the provisions of this chapter.
Thus the purpose of Chapter XVII is to flatly prohibit, with enumerated exceptions, the erection and maintenance of signs in the community. Among the several exceptions to the general prohibition are those listed in § 17-6:
17-6 Residential Zones
The following signs are permitted in those areas of the Township of Willingboro which have been zoned for residential use.
There then followed, prior to the adoption of Ordinance No. 5-1974, five specific designations 1 of signs permitted in areas zoned for residential purposes. Section 17-6.5, encaptioned “Rental Signs”, provided:
17-6.5 Rental Signs. Signs pertaining to the lease, rental or sale of the premises on which they appear, subject to the following conditions:
a. The size of the sign shall not exceed eight square feet in area.
b. The sign shall be located upon the premises to which it pertains and shall not project beyond the property line of such premises.
e. Such signs shall be removed within five days after the execution of any lease, rental agreement or agreement of sale for the premises in question by the occupant of the premises and/or the owner of the sign.
*806d. Not more than two such signs are to be placed upon any property.
The challenged ordinance repealed § 17-6.5. As a result of the repealer the general prohibition in § 17-2 became applicable to any sign relating to the lease, rental or sale of a home in Willingboro.
The district court found:
“[I]t appears that the true thrust of these sign ordinances is to promote a racial balance or more properly a racial imbalance in order to perpetuate existing racial lines.
There can be doubt that this is precisely the result desired by the Willingboro Town Council in adopting this ordinance.”
Having found that the intended purpose of the amendment was to limit the opportunity of property owners to communicate the availability of their residences to potential minority occupants, the court went on to find:
“Even more important is the concomitant result: one who wishes to purchase a home in Willingboro has no way of learning what is available. He only has the ‘option’ of choosing a home from those which he is shown by a realtor, thereby necessitating the use of a real estate brokerage firm. Further, the broker or salesman may be very selective in choosing which home he wishes to show a potential buyer.”
Thus the court found that both the intended purpose and the likely effect of the repealer was to limit the access of minorities to housing in the Township. No ordinance having that intended purpose and likely effect, I submit, can pass constitutional muster. Because the district court’s
factual conclusions are clearly if not overwhelmingly supported by the record evidence, the judgment of unconstitutionality must be affirmed.
I. THE TOWN COUNCIL’S INTENDED PURPOSE IN ENACTING ORDINANCE NO. 5-1974.
The plaintiffs’ case consisted primarily of the minutes of two public hearings which were conducted by the Willingboro Town Council prior to the adoption of Ordinance No. 5-1974. Those minutes, Exhibit P-3, were offered “in the nature of a joint exhibit. It’s agreed that they do accurately reflect what was said at the meetings on the subject.” (131a-32a). After examining the minutes of those hearings one can reach only one conclusion: The unmistakeable stimulus for the proponents of repeal of § 17-6.5 was the fact that the non-white population had increased from under 12% in 1970 to over 18% in 1973.2 Ordinance No. 5-1974 was a transparent effort to perpetuate existing racial balance and arrest the growth of Willingboro’s non-white population. The transcript of the hearings alone amply supports the district court’s finding that maintenance of an existing racial balance was the primary motivation behind the ordinance, and the supplementary evidence presented on behalf of the Township makes any other conclusion as a matter of law inescapable.
The Township defendant presented one exhibit, D-l, at trial. This exhibit tabulated the results of a demographic study of the racial composition of Willingboro’s population over a period of years (128a):
*807 Year Total Popul. White Popul. Black Popul. Other Popul. NonWhite Popul. Percent NonWhite
1950 852 Unavail. Unavail. Unavail. Unavail. Unavail.
1960 11,861 11,801 6 54 60 .005
1970 43,414 38,326 4,738 350 5,088 .117
1973 44,607 36,485 7,637 485 8,122 .182
It also offered the testimony of several witnesses. The first of these was Donald C. Evans, a proponent of the Ordinance and a Realtor whose office and residence were in Willingboro. On direct examination he testified (157a-58a; 162a):
Q. Now, listen to my question and answer that: Did you have occasion to discuss with prospective purchasers the situation in Willingboro prior to the enactment of the ordinance? I’m talking about now the amount of for sale signs and the reaction, if any, that would be developed in these prospective purchasers by this.
A. The answer is yes.
Q. What was that? What were those discussions?
A. There were many in number for people that I have taken out to show a house to. And then if there has been two or three signs on the same street, the question has been: Is there something wrong with this street? Is this street going black? And I’ve had that question asked of me a number of times.
Q. How about with taking it the other way, again, before the enactment of ordinance, with discussing this with prospective sellers of homes, did you similarly have discussions with them?
A. Yes.
Q. And did they have an opinion as to the situation involving signs in the township?
MR. HAUCH: If your Honor please, I have to object to him expressing someone else’s opinion to this witness.
BY MR. GOTTLIEB:
Q. Was there a community assessment conveyed to you?
A. Very definitely.
Q. By purchasers — By sellers, excuse me. And what was that sentiment?
A. Yes. The sentiment was that the signs were bringing in brokers that were non-MLS from out of town, and bringing in—
THE WITNESS: How do I say, your Honor? I don’t want to restrict it to ‘black’—
A. (Continuing) — but minority groups in order to sell them into Willingboro.
Q. Well, in what way would the presence of signs lead to less of a stabilization?
A. Well, you have an opinion. People that have watched houses being sold, beside them or on the street, and there are one out of five will go to a minority, and they’ll make this statement: ‘Boy, the next time one goes up for sale, if another black moves onto the street, I’m going to sell and move.’
Q. Did you find this to be a prevalent attitude prior to the enactment of the ordinance?
A. Absolutely.
On redirect examination Evans was asked and answered (171a):
Q. In your opinion, as having been a realtor selling in Medford Lakes,3 has the sign ordinance been proposed, the ordinance there, which prohibits for sale signs being erected, has that been utilized as a furtherance of segregation in Medford Lakes?
A. Absolutely—
*808The next witness called by defendants was William J. Kearns, Jr., a member of the Township Council. On direct examination he testified (179a-81a):
Q. Were you, prior to the winter of ’73-’74, able to obtain a feeling on the community sentiment with respect to for sale signs in the township?
A. I believe so, yes.
Q. And what was that opinion at that time?
A. I think there was very definitely a feeling in the community that something should be done to prohibit real estate signs in the community.
I think the public sentiment started developing probably as early as ’72, became somewhat more — somewhat stronger as people became more concerned in 1973, and culminated with the adoption of the ordinance in 1974.
Q. That’s the general opinion.
What was the basis for that opinion in these people? Did you — in the people. Did you ever discuss this with them?
A. Yes, I discussed it with a number of people, and I think that the concern that was generally expressed was that people in the community were expressing a desire to sell their homes and move to other areas of Burlington County because what they sensed was a lack of stability or a large turnover in the community, and that this large turnover was resulting in a substantial influx of minority groups into the community beyond what could be sustained without the community itself turning into a ghetto within the county.
Kearns also testified that Willingboro was initially developed as an all-white community, and was integrated in the early 1960s only after a suit against the principal developer, Levitt and Sons, Inc., was successfully pressed.4
Steven E. Heath, another member of the Willingboro Township Council, was the next defense witness to be called. He testified (205a-06a):
Would you indicate to the Court what your understanding was of the community sentiment in 1972, the beginning of ’73, and so on, with respect to the posting of for sale signs in the community?
A. The community was overwhelming in favor of abolishing all for sale signs.
THE COURT: All real estate signs?
THE WITNESS: That was of a residential nature.
A. (Continuing) There was never any discussion, to my knowledge, of commercial signs at any of the meetings I attended, about commercial signs, model home signs, anything of that nature never entered into it.
There is a separate question that’s going on right now about the signs of certain commercial signs and things like that.
But the specific, in fact, I believe became one of the key issues in my campaign when I was elected, the whole question of real estate signs and the nature of the community and the quality of the community we have, and the fact that we feel we have a community that’s a leader in the country in terms of human relations, and that we are being taken advantage of in certain ways.
And as a consequence, a number of people in the community were beginning to lose some of the pride and the faith they had in the community.
One individual — I heard him mention specifically at a party and a number of other people say that they had to get out of Willingboro because the great experiment wasn’t working, it was failing. That: ‘Look what’s happening to property values. Everybody wants to sell their home.’
*809And particularly people who live in the townhouse sections of Rittenhouse Park and Fairmount Park where homes are clustered quite closely together on a court. One or two real estate signs and, you know, they look like a lot more than one or two when they are that close together. And people would say: ‘Everybody in Rittenhouse wants to sell. What’s happening?’
And you get five or six signs in a row on a particular street, and different neighbors on the street — I saw it happen on my own street, almost all of us. In fact, I’m the shortest with one exception, the shortest resident on my particular end of the street.
To a question put to him by the court Heath replied (206a-07a):
THE COURT: Is it a problem there — I think Mr. Kearns said it was a device— that is, this ordinance, is it a problem of minority affecting property values where you people thought it was going to get away from you? Is that a fair question, number one?
THE WITNESS: I think it’s a fair question. If I can explain a little bit?
THE COURT: Yes.
THE WITNESS: Right now, and over the last few years, we have experienced an increase in property values. In the minds of most people who read the papers and follow, in the last three or four years our property values have not been increasing at a rate as great as property values in other neighboring towns. People continuously say, ‘You can’t buy a house for $30,000 in any other town but you can in Willingboro.’ If that house was only in Cinnaminson or in Moorestown, move it a mile across the line in Westampton, it would be over $40,000.
THE COURT: You mean that was a general thing?
THE WITNESS: Because that’s true in any town that was the general feeling. And the reason for this was no one wanted to buy houses. You know, when you are a property owner, whether the sales are going or not, you have a general opinion. You drive around. People would see a lot of signs. They would say: ‘Everybody wants to sell. This must be because there are too many blacks in town; and if we don’t do something about it, boy it’s just going to go, and let’s sell and get out now.’
And what we’re trying to do is kind of nip it in the bud and stop it now before too much of this got out of hand.
And at this point we could stop it, still continue to have our property values rise, but stop the individual home owner from thinking: ‘Boy, if I don’t get out now, I am going to lose my investment.’
THE COURT: All right. Thank you for being candid with me.
Another witness, Valeria Gladfelter, a member of the Willingboro Human Relations Commission, testified about racial incidents in the early 1970s. She then said (231-33a):
Q. Were you able to ascertain a general community sentiment in Willingboro with respect to the racial situation and its relationship to the real estate for sale signs?
A. Yes, I think so.
Q. Okay.
And what is that sentiment that you were able to observe?
A. People expressed concern on seeing large numbers of for sale signs that neighborhoods would undergo rapid racial change, and this was a cause of worry to them.
She added that this expressed concern persuaded the Human Rights Commission to recommend the prohibition of “For Sale” or “Sold” signs on houses in the community. The testimony of Alexander W. Porter and the Rev. Ernest Shaw Lyght, both members of the Human Rights Commission, corroborated that of Mrs. Gladfelter. One must attach great significance to the fact that all of the defense witnesses consistently testified that the intended purpose of Ordinance No. 5-1974 was to stabilize the Township’s racial balance. In my view any factual conclusion other than that drawn by the district court would be clearly erroneous. *810Certainly the conclusion the court did draw is not clearly erroneous. But in utter disregard of the standard of review imposed on this court by Rule 52, Fed.R.Civ.P., the majority, by a disingenuous process of selection and omission, sifts through the record below to construct its own findings to justify a predetermined result. On this record no appellate tribunal can properly hold that the district court’s conclusion respecting the Town Council’s intended purpose in enacting Ordinance No. 5-1974 “(1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972); R. Aldisert, The Judicial Process 690-92 (1976). The majority opinion completely inverts the respective roles of the trial and appellate courts, and is an instance of ad hoc decision making.
II. THE LIKELY IMPACT OF THE WILLINGBORO ORDINANCE.
The majority refuses to attach any significance to the district court’s conclusion that the effect of Ordinance No. 5-1974 is to steer prospective home purchasers to local real estate brokers, who may in turn be very selective in the property they wish to show a potential purchaser. It urges that the district court’s conclusion is unsupported by record evidence. Manifestly there is no such absence of evidence here. Co-plaintiff William Mellman, a real estate broker with an office outside Willingboro, testified that approximately thirty percent of the inquiries to his office from prospective purchasers originated when a prospective buyer viewed a “For Sale” sign on a property he liked. (135a). Defendants’ witness Evans, a broker based in Willingboro, testified that his firm was very happy maintaining an 80/20 white/non-white racial mixture in the community. (160a). He also testified that since the ordinance was adopted he acquired “a good 25 percent more of the market in Willingboro than [he] had a year ago,” and that the increase resulted from the diversion of sales from an out-of-town broker unable to display its signs on homes in the community. (164a). Evans also testified that (165a; 172a):
Q. I think, going back about two, three years, were you familiar with the real estate situation in Medford Lakes with respect to posting signs or not?
A. I am very familiar with it, right.
Q. Can they post signs?
A. They cannot.
Q. How many black families are there in Medford Lakes?
A. To my knowledge, not one. I only know of the first Jewish family that moved in under great protest.
Q. And that’s recent?
A. About two years ago, I believe.
Q. And I believe that back about three years ago, you were impressed with the way Medford Lakes handled their real estate transactions; weren’t you?
A. No. I was impressed with Todd Realty, in the way he handled it. I was not impressed with the way that they had their integration, lack of integration.
Q. And they still have that?
A. They certainly do.
Q. And they still prohibit signs?
A. They certainly do.
Q. Has that been used in Medford Lakes to keep minorities out of Medford Lakes?
A. My salesmen have been asked: “Is that person black? Don’t bring him out here.”
Q. Okay.
In Willingboro now, bringing it back home, the prohibition of the signs, is it your opinion that the community desired this in order to prevent minorities from moving into town?
A. No.
Q. What was the community sense on this?
THE WITNESS: I think that, if I may, you Honor, I have, for instance, seven of my sales personally, a retired military — -We’ve been all over the country. We’ve purchased homes ourselves in Willingboro. We think it’s the greatest *811place we ever found in the country. And all we want to do is maintain a stability, because we have more in Willingboro than we found in any other town. And they feel that with this sign ordinance now, they’ve been given the opportunity to work with compatible real estate brokers under the multiple listing service who are doing above board ethical job of selling real estate.
In paraphrase Evans testified that in Med-ford Lakes the local brokers, with an assist from the sign ordinance, maintained a zero quota for minorities.5 In Willingboro, with a similar assist, the local brokers will be satisfied to maintain a 20 percent quota. The uncontradicted evidence demonstrates that the sign ordinance enhanced the competitive position of the local brokers in the market; that brokers were capable of action directed toward excluding minorities from residence in Willingboro; that in a neighboring community such action was completely effective; and that since the Willingboro ordinance was adopted “[w]e are still representing a straight about 80/20 minority to white seller and buyer, both sides just maintaining a perfect balance, and we’re actually very happy.” (160a). The demographic trend observed between 1970 and 1973, in other words, has been arrested. The majority’s declaration that there is “no evidence in the record of any racial discrimination, actual or intended, against any person or group in the sale of Willingboro residences”6 is patently contradicted by the record below. Again, I protest the distortion of the appellate process by which the majority substitutes its own findings for those of the district court.7
III. THE GOVERNING LAW.
Guided by its findings of fact, the district court concluded that Ordinance No. 5-1974 was a regulation of speech in unlawful derogation of first amendment rights and an unconstitutional burden on the right to travel of possible home purchasers denied access to first-hand knowledge of the Willingboro real estate market. The majority addresses these constitutional arguments and concludes that the ordinance suffers no constitutional infirmity. For the reasons set forth in Part IV of the dissenting opinion, I disagree with the majority’s analysis of these issues.
But there is a much simpler and more direct analysis which compels affirmance of the judgment below. The intended purpose of the ordinance is to discriminate against racial minorities by “stabilizing” the nonwhite population of Willingboro at not more than 20 percent. This is not affirmative action to overcome the effects of past discrimination, but is invidious discrimination of the most pernicious sort, against a discrete and insular minority seeking fulfillment of the American Dream of owning a *812home in the suburbs. This is a classic example of de jure racial discrimination. Certainly an ordinance which on its face manifested a purpose to maintain a racial quota in Willingboro would be facially unconstitutional. But statutes which are facially neutral have nevertheless been held to violate the equal protection clause if they are intentionally applied for discriminatory purposes. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). Moreover, the Supreme Court has found de jure discrimination in statutes which are facially non-discriminatory but which were adopted as the result of a discriminatory legislative motive. See, e. g., Griffin v. County School Board, 377 U.S. 218, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960).8
Although expressions of the Supreme Court’s disinclination to review laws on the basis of legislative motive trace back to Chief Justice Marshall’s admonition in Fletcher v. Peck, 10 U.S. [6 Cranch] 87, 130, 3 L.Ed. 162, 176 (1810), that point of view has been eclipsed by more recent events. Certainly it is too late in the day to urge that federal courts will close their eyes to patent manifestations of pernicious legislative motive, or even that they will not search the legislative backwaters for more subtle currents. Indeed, judicial review of legislative purpose is compelled by the Supreme Court’s tri-partite test in establishment clause cases. See, e. g., Meek v. Pittenger, 421 U.S. 349, 358, 362-63, 95 S.Ct. 1753, 1759, 1762, 44 L.Ed.2d 217, 227, 230 (1975). Where, as here, evidence of a purpose of “stabilizing” the non-white population in the community is advanced by the defendants through their own witnesses as the reason for adopting the ordinance, we cannot ignore it. Where, as here, a discern*813ible discriminatory impact can be anticipated by operation of the challenged enactment, we must grant relief against that threat to liberty. I am completely satisfied by the case made out by plaintiffs in the court below. Ordinance No. 5-1974 is in utter conflict with the equal protection clause of the fourteenth amendment and is null and void.9
IV. THE MAJORITY LEGAL ANALYSIS.
Since the majority declines to acknowledge the obvious — that Willingboro in adopting the ordinance intended to facilitate discrimination against blacks — it must of necessity deal with issues which I would not reach. Since it does so I am constrained to register my dissent from its treatment.
(A) Free Speech
The district court held that the sign ordinance was intended to censor the message of the homeowner desiring to sell his home, and having a censorious purpose violated the first amendment. The majority holds that the district court erred. In so holding it relies on two separate lines of authority. The first, typified by United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968),10 permits an incidental abridgment of first amendment rights by a valid governmental regulation of “non-speech” elements of conduct, as long as the infringement goes no further than is required for the accomplishment of the “non-speech” governmental purpose. The second line of cases upon which the majority relies involves the so-called “commercial speech” exception to the first amendment. The leading case is Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). These two lines of authority, analytically quite distinct, are discussed in the majority opinion in a manner which blurs the salient differences between them. Neither separately nor together, however, do they support the conclusion that this ordinance can withstand first amendment scrutiny.
I do not share the majority’s belief that the “incidental limitations” cases are at all apposite to the facts at hand. The common bond that unites this line of authority is that in each case a paramount governmental interest in regulating non-speech existed which justified restraining “speech” in an inevitable, albeit unintended and hence incidental, manner.11 In this case, however, the shackle upon speech can hardly be dignified as incidental. The cardinal purpose of Ordinance 5-1974 is censorship of the homeowner’s message. Its effect is direct and purposeful. It is not an incidental restraint. The majority seems to acknowledge that the corrosive effect Ordinance No. 5-1974 has upon “speech” is intended, not incidental, when it urges that the “limitation on noncommercial speech falls upon an unspoken or invisible ‘message’ or communication of a nature insufficient to override that public interest on First Amendment grounds.”12 Notwithstanding Marshall McLuhan’s observation that the medium is the message, the majority cites no authority in support of its position that an ordinance which regulates the content rather than the mere presence of a sign imposes a restraint which can be characterized as incidental or otherwise permissible for first amendment purposes. Ordinance No. 5-*8141974 is analogous to a law prohibiting political advertising by billboard. While I can only suppose that no court would uphold a statute so pointedly drawn,13 I am morally certain that none would sustain it as but an incidental limitation on free speech.
Nor do I believe that the majority can find comforting support for its untenable thesis in such cases as St. Louis Poster Advertising Co. v. City of St. Louis, 249 U.S. 269, 39 S.Ct. 274, 63 L.Ed. 599 (1919) and United Advertising Corp. v. Borough of Raritan, 11 N.J. 144, 93 A.2d 362 (1952).14 Those cases held that the general regulation of the business of outdoor advertising was within the compass of the state police power. Those cases offer neither a whit nor a jot of support for the exercise of the police power to accomplish a racially discriminatory end.
I also understand the majority to suggest, at least implicitly, that the Willingboro ordinance is a valid exercise of the municipal zoning power. What precise limitations inhere in this power are uncertain, but it may be inferred that the power itself is broad in scope. See Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974). Nevertheless, the municipal zoning power derives from the state police power, see Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), and is subject to all the qualifications of that regulatory authority. I know of no case where a legislative enactment that is purposefully discriminatory has been upheld as a legitimate exercise of the police power, whether it occurs in the regulation of outdoor advertising, as discussed supra, or in a zoning ordinance, or in some other context. See Village of Belle Terre v. Boraas, supra, 416 U.S. at 6, 94 S.Ct. at 1539, 39 L.Ed.2d at 802. By the same token, I know of no case which has ever justified the use of the zoning power for a purpose forbidden by the first amendment. The defendants perhaps recognize the implausibility of such a broad interpretation of the zoning power, for at no point in this litigation have defendants even hinted that the Willingboro ordinance could be validated on Euclidean grounds.
Since censorship of the message was the intended purpose and effect of Ordinance No. 5-1974, justification must be found, if anywhere, in authorities placing the message beyond the pale of the first amendment. The majority suggests the “commercial speech” doctrine fills the bill. That doctrine, if it can any longer be so dignified, originated in Valentine v. Chrestensen, supra. Justice Roberts’ opinion is a singularly abrupt and cryptic treatment of a supposed exception to the first amendment, completely devoid of references to supporting authority. It was handed down in 1942, hardly a vintage year for first amendment jurisprudence. See also Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691 (1942), rev’d per curiam on rehearing, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290 (1943).
By 1943 it may be inferred that the Court was having second thoughts about the wisdom of Valentine v. Chrestensen, and expressly declined to extend the case beyond the pamphleteering context. See Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292, 1297 (1943); Martin v. Struthers, 319 U.S. 141, 142 n. 1, 63 S.Ct. 862, 87 L.Ed. 1313, 1316 (1943); Jamison v. Texas, 318 U.S. 413, 417, 63 S.Ct. 669, 672, 87 L.Ed. 869, 873 (1943). Thereafter the commercial speech exception more or less withered on the vine, as it were, until 1973, when in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669, 676 (1973), Justice Powell cited Valentine v. Chrestensen with what some might regard as tacit approval. In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), however, the Court reversed a conviction under a state statute making it a misdemeanor to publish any matter encour*815aging another to have an abortion. Since the defendant was the editor of a newspaper which published a paid advertisement placed by a New York Abortion Clinic, the commercial speech issue was squarely presented. Writing for seven members of the Court Justice Blackmun said of Valentine v. Chrestensen :
But the holding is distinctly a limited one: the ordinance [banning handbills] was upheld as a reasonable regulation of the manner in which commercial advertising could be distributed. The fact that it had the effect of banning a particular handbill does not mean that Chrestensen is authority for the proposition that all statutes regulating commercial advertising are immune from constitutional challenge. The case obviously does not support any sweeping proposition that advertising is unprotected per se.6
Id. at 819-20 & n. 6, 95 S.Ct. at 2231, 44 L.Ed.2d at 610.
Justice Blackmun pointed out that the Pittsburgh Press majority did not rest its decision on any commercial advertising exception to the first amendment, and in fact reaffirmed the holding of New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686, 700 (1964) that commercial advertising enjoys first amendment protection.15
it would seem, then, that Bigelow v. Virginia has laid to rest once and for all the notion that Valentine v. Chrestensen placed commercial advertising in the category of unprotected speech along with fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), libel, Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) or incitement, Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). The majority may think otherwise, but I find the recently-expressed views of seven members of the Supreme Court more authoritative. See Terminal-Hudson Electronics, Inc. v. Department of Consumer Affairs, 407 F.Supp. 1075 (C.D.Cal. Jan. 6, 1976); see also Millstone v. O’Hanlon Reports, Inc., 528 F.2d 829 (8th Cir. 1976); Virginia Citizens Consumer Council, Inc. v. State Board of Pharmacy, 373 F.Supp. 683 (E.D.Va.1974), prob. juris noted, 420 U.S. 971, 95 S.Ct. 1389, 43 L.Ed.2d 650 (1975) (No. 74-895).
Having taken Valentine v. Chrestensen out of the unprotected speech category the Bigelow Court, while acknowledging that advertising could be subjected to regulation aimed, for example, at preventing the perpetration of illegal activities, concluded that the Virginia statute, as applied to advertising of legal activities, violated the first amendment. Justice Blackmun’s analysis thus seems quite close to, if not identical with, that of United States v. O’Brien, supra. Valentine v. Chrestensen, thus viewed, appears to be nothing more than an application of the “incidental limitations” authorities. But whether it has been reduced to that status, or has some additional content, the case certainly cannot any longer be read as the majority reads it. There is no commercial advertising exception to the first amendment. The state may not adopt a law for the intended purpose of proscribing the advertising of a lawful activity. That was the intended purpose of *816Ordinance No. 5-1974, and the district court correctly held that it violated the first amendment.16
(B) Right to Travel
The district court, having found that the effect of the ordinance was to require prospective home purchasers to utilize the services of real estate brokers, drew the conclusion that it infringed upon the constitutional right to travel. Since I would hold that the ordinance involved de facto racial discrimination it is not necessary to rely on such esoteric areas of fourteenth amendment learning. But in fairness to the district judge I must again take issue with the majority’s treatment of the record. Rejecting the factual predicate for the right to travel holding, the majority says
“We find no evidence to support the conclusion that the ordinance burdens anyone’s right to travel.
The district court’s ‘natural conclusion’ regarding the right to travel rested on the erroneous belief that real estate ‘For Sale’ signs were the only means of learning what homes were available and that the absence of such signs delivered all buyers into the hands of brokers who might be unscrupulous. The fact that 70% of inquiries come from sources other than signs, the fact that the absence of signs has the same effect on whites as on blacks, and the fact that no pattern of racial discrimination had existed in Willingboro for 14 years, all go to confirm the error in that conclusion and the error in striking the ordinance herein on that basis.” 17
These statements are seriously misleading. Mellman testified that where signs are permitted 30 percent of the inquiries directly result from their display, and 30 to 35 percent result from newspaper and other advertisements. (147a). Thus according to the record evidence elimination of signs may produce a SO percent reduction in inquiries. That substantial numbers of inquiries are generated by newspaper advertisements suggests that at least in some cases that medium may satisfactorily convey the homeowners’ and real estate brokers’ message. But that is not to say, as the majority blithely assumes, that Ordinance 5-1974 in operation would not cut off large numbers of prospective purchasers from meaningful knowledge of the Willingboro real estate market. Moreover, Evans’ testimony establishes that his Willingboro brokerage office has benefited by the sign ordinance to the extent of a 25 percent increase in business. Certainly this uneontroverted evidence supports the district court’s conclusion that the tendency of the ordinance is to force prospective purchasers to resort to brokers who might “stimulate and prey on racial bigotry and fear to create or perpetuate ghettos.”
I protest the departure from settled principles of appellate review which the majority opinion represents. I would affirm the judgment of the district court.
. The other exceptions included: Nameplate or Identification Signs, § 17-6.1; Professional Signs, § 17-6.2; Non-Business Usage Signs, § 17-6.3; and Specific Recreational Activities Signs, § 17-6.4.
. See, e. g., Exhibit P-3, statements of Mac-Now (29a-30a); Jones (31a-32a); Kirk (40a-41a); Wortman (43a-44a); Miller (51a); Yost (56a); Turoski (59a-60a); Dubin (65a); Fleet-wood Realty (72a); Wortham (76a); Taraschi (91a); Cohen (96a); Klingenberg (97a-99a); Grindlinger (102a); Connolly (108a); Boyd (110a); Cannon (110a-lla); Brooks (116a); Councilman Kearns (118a-20a); Councilman Krane (120a); Councilman Heath (121a); Councilman McGrath (122a). In footnote 4 the majority attempts to denigrate the significance of this exhibit by emphasizing that it was admitted not for the truthfulness of the statements but only to establish what happened at the meeting. But the racist suggestions are no less evidence of motivation because they are, as I believe them to be, false. The fact remains that fear of minority in-migration was the stimulus for the ordinance. The majority apparently would require that we accept as true the underlying beliefs about minorities before we can accept the expression of such beliefs as evidence of motivation.
. Medford Lakes is a nearby community whose sign ordinance served as a model for the Willingboro ordinance.
. Levitt & Sons, Inc. v. Division Against Discrimination in the State Dep’t of Educ., 31 N.J. 514, 158 A.2d 177, appeal dismissed per curiam, 363 U.S. 418, 80 S.Ct. 1257, 4 L.Ed.2d 1515 (1960).
. The majority takes me to task, Majority Opinion at 803 n. 27, for adverting to this testimony about Medford Lakes. Of course the fact that Medford Lakes’ similar sign ordinance had both the purpose and effect of perpetuating racial segregation is only marginally probative of facts relating to the adoption of Willingboro Ordinance 5-1974. But it does suggest that behind a facially neutral law may lurk the most sinister of motives. Where it is shown that a particular kind of ordinance can be and has been used as a pretext for racial discrimination, it is incumbent upon courts to examine closely motives underlying adoption. A court cannot, as the majority has done, Majority Opinion at 803-804, don blinders to reality under the pretext of condemning the practice of looking for a racist under every bed.
. Majority Opinion at 803.
. The majority detects a fatal flaw in the district court’s “presumption of perfidy.” Majority Opinion at 795. The majority also faults the district court for making “no assumption that unscrupulous realtors might, in the absence of the ordinance, engage in an opposite form of racial discrimination, i. e., ‘blockbusting’.” The record reveals, however, that the district court’s “presumption of perfidy” was based on an overwhelming body of fact. In contrast, the majority cites no record evidence upon which a presumption of blockbusting can be based. Moreover, the majority correctly points out that Congress has already legislated against the practice, 42 U.S.C. § 3604(e), so no local regulation would appear necessary even if appropriate. In any event, that the ordinance may incidentally regulate illegal conduct cannot legitimize its patently discriminatory purpose.
. Palmer v. Thompson, 403 U.S. 217, 91 S.Ct. 1940, 29 L.Ed.2d 438 (1971), is not to the contrary. In that case an equal protection challenge was mounted against action of the City Council of Jackson, Mississippi, closing for racial reasons a public swimming pool. The Court sustained the council’s action, which impacted equally upon blacks and whites. The Court admitted that language in Griffin and Gomillion suggested that an inquiry into legislative motive was relevant for equal protection purposes but distinguished them by saying that
the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated ‘private’ academies. And in Gomillion the Alabama Legislature’s gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites. Id 403 U.S. at 225, 91 S.Ct. at 1945, 29 L.Ed.2d at 445.
Palmer v. Thompson is not inconsistent with the scrutinization of legislative motive in this case. This is apparent from the next paragraph of the Court’s opinion:
Petitioners have argued strenuously that a city’s possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of ‘the equal protection the laws.’ Id. at 226, 91 S.Ct. at 1945, 29 L.Ed.2d at 445. (citations omitted).
Palmer v. Thompson thus holds that where there is a failure of proof as to the discriminatory effect of a legislative act or classification, judicial examination of legislative motive is inappropriate because even if a hostile motive were proved that would not, in the absence of evidence of effect, suffice to violate the equal protection clause. But where, as here (and as in Gomillion and Griffin), the challenged enactment has a demonstrable discriminatory impact, proof of racial animus makes out a prima facie equal protection case. Cf. Wright v. Council of the City of Emporia, 407 U.S. 451, 461-62, 92 S.Ct. 2196, 2202-03, 33 L.Ed.2d 51, 60-61 (1972).
. Neither in the district court nor here did the defendants urge that the plaintiffs, both of whom have suffered some injury in fact, lack standing to assert the discriminatory effect of the ordinance. Nor does the Township contend that it is not a proper defendant in this action. An individual, Gerald Daly, is in any event clearly a proper defendant since he has the duty of enforcing the ordinance.
. In O’Brien the Court sustained the conviction of a Selective Service registrant who burned his draft card in a symbolic protest against the Vietnam War.
. See, e. g., United States v. O’Brien, supra; Smith v. Goguen, 415 U.S. 566, 586-87, 94 S.Ct. 1242, 1253-54, 39 L.Ed.2d 605, 619 (1974) (White, J., concurring).
. Majority Opinion at 795.
. Cf. Columbia Broadcasting Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 128-30, 93 S.Ct. 2080, 2099, 2100, 36 L.Ed.2d 772, 798-799 (1973).
. Majority Opinion at 797 n. 13.
Mr. Justice Douglas, who was a Member of the Court when Chrestensen was decided and who joined that opinion, has observed, “The ruling was casual almost offhand. And it has not survived reflection.” Cammarano v. United States, 358 U.S. 498, 514, [79 S.Ct. 524, 3 L.Ed.2d 462] (1959) (concurring opinion). Mr. Justice Brennan, joined by Stewart, Marshall, and Powell, JJ., has observed, “There is some doubt concerning whether the ‘commercial speech’ distinction announced in Valentine v. Chrestensen . . . retains continuing validity.” Lehman v. City of Shaker Heights, 418 U.S. 298, 314 n. 6, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974) (dissenting opinion). See also Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 393 (1973) (Burger, C. J., dissenting); id., at 398 (Douglas, J., dissenting); id., at 401 (Stewart, J., dissenting).
. 421 U.S. at 821, 95 S.Ct. at 2232, 44 L.Ed.2d at 611. Pittsburgh Press held that the speech in question — sex-segregated want ads — advanced an illegal commercial proposal, and for that reason was stripped of its first amendment shield.
. The majority’s first amendment analysis borrows heavily from the Seventh Circuit’s opinion in Barrick Realty Inc. v. City of Gary; 491 F.2d 161 (7th Cir. 1974). I believe that the Barrick court’s reasoning is flawed, for substantially the same reasons advanced in this dissent. I therefore reject Barrick’s analysis as unpersuasive.
. Majority Opinion at 804.