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Federal appeals panel: Investigation chilled outspoken residents' speech

By David Hudson
The Freedom Forum Online

09.28.00

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Federal housing officials violated the First Amendment rights of three California residents by investigating them for speaking out against a building project, a federal appeals court panel has ruled.

In May 1992, a nonprofit housing developer, Resources for Community Development, applied for a zoning permit from the Berkeley Zoning Adjustment Board to convert a local motel into a housing unit for the homeless.

Three neighbors — Alexandra White, Joseph Deringer and Richard Graham — expressed their opposition to these plans by writing a letter to the Berkeley City Council, speaking out at public meetings and circulating a newsletter they had written criticizing the project. The neighbors also formed an association called the Neighborhood Groups Opposing the Bel Air Conversion.

A housing-rights advocate, upset with the neighbors' conduct, petitioned the San Francisco office of the U.S. Department of Housing and Urban Development to investigate the three for possibly violating the Fair Housing Act. (The act is a federal law that prohibits discriminatory housing practices and makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of" rights protected by the law.)

The housing advocate claimed that the neighbors' comments were discriminatory toward people with physical and mental disabilities.

The San Francisco HUD office investigated the plaintiffs, threatening them with legal action if they did not fully cooperate with the investigation. HUD officials warned the neighbors they could be subject to fines as great as $100,000.

After an eight-month investigation, in July 1994 the San Francisco HUD office sent a letter to the Washington office recommending that charges be filed against the three residents for violating the Fair Housing Act. However, in August 1994 the Washington office determined there was not enough "reasonable cause" to issue charges against the neighbors.

The three residents then filed a lawsuit in federal court in May 1995, alleging that the investigatory actions of the San Francisco HUD officials had chilled their First Amendment free-speech and free-petition rights. They alleged they were retaliated against solely for exercising their constitutionally protected rights.

In December 1998, a federal district court rejected the defendants' motion for qualified immunity and ruled that the HUD officials were liable.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals yesterday agreed unanimously with the lower court in White v. Lee. According to the panel majority, the actions of the three neighbors were "paradigmatically protected by the First Amendment."

"The HUD officials' eight-month investigation into the plaintiffs' activities and beliefs chilled the exercise of their First Amendment rights," Judge Stephen Reinhardt wrote for the panel.

Reinhardt noted that informal measures, such as threatening to invoke legal sanctions, could violate the First Amendment just as much as imposing criminal or civil sanctions.

The HUD officials argued that the neighbors had violated the Fair Housing Act in part because they had filed an unsuccessful state-court lawsuit contesting approval of the housing unit for the homeless. The HUD officials argued that they had been justified in investigating the three neighbors to determine if they filed their state-court lawsuit with a discriminatory purpose.

Reinhardt wrote that even though the neighbors' state-court lawsuit was dismissed and even if it lacked merit, "the investigation that the HUD officials conducted exceeded the bounds of reasonable governmental action and violated the plaintiffs' First Amendment rights."

Reinhardt also reasoned that when a government investigation intrudes on citizens' First Amendment rights, the government has the obligation "to take the least intrusive measures necessary to perform [its] assigned functions."

The panel also rejected the defendants' argument that they were entitled to qualified immunity because they did not violate any clearly established constitutional right.

Kenneth L. Marcus, the residents' attorney, said the decision was significant for two reasons. "This is the first and leading case which demonstrates to HUD officials that there are First Amendment limitations on their investigations," he said.

"The decision is also significant because it will serve as an important bulwark against encroachments by all federal investigators into First Amendment-protected activities," he said. "It sends a clear signal that these investigators can be held personally liable if they violate First Amendment free-speech and free-petition rights."

Calls to the U.S. Department of Justice were not returned.

Related

Government must remember First Amendment protects unpopular views, too
By Douglas Lee Federal appeals panel's decision should remind officials that they can't guarantee some minorities' civil rights by denying rights to others.  10.09.00

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