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HUD officers liable for violating First Amendment rights of activists

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Officers of the Department of Housing and Urban Development were liable for violating the First Amendment rights of three housing…

Officers of the Department of Housing and Urban Development were liable for violating the First Amendment rights of three housing activists, a federal appeals court held on Sept. 27.

The activists sued officials from HUD’s San Francisco office for free speech violations as a result of its campaign to force them to refrain from speaking publicly against a local housing project.

The unanimous panel of the U.S. Court of Appeals in San Francisco (9th Cir.) found the investigatory tactics of the officials from San Francisco offended the principles of an open political dialogue. “There was simply no justification for the officials to take the extraordinarily intrusive and chilling measures they did,” Judge Stephen Reinhardt wrote for the panel.

The three opponents claimed a developer’s planned conversion of a nearby motel into a multi-family housing unit for the homeless would result in an infusion of drug users and mentally ill individuals. The trio petitioned the local zoning board and city council against the project, as well as published a newsletter critical of the proposal. They also spoke to the press and community merchants.

A director of a local housing rights advocacy group filed a complaint with HUD claiming the three Berkeley residents violated the Fair Housing Act by encouraging discriminatory behavior. As a result of this complaint, the San Francisco office commenced an eight-month investigation of the opponents’ effort to stop the housing project.

The conduct of the federal officials during this probe led to the lawsuit by the three opponents claiming an infrinegment of their First Amendment rights. A decision by authorities in Washington, D.C. to end the investigation supported the plaintiffs’ claim of governmental interference with political speech.

The court found the federal housing officials had threatened them with lawsuits, jail and fines during the investigation in an effort to squelch opposition to the housing project.

“[T]he plaintiffs wrote and distributed flyers and published a newsletter in the advocacy of a politically controversial viewpoint — the essence of First Amendment expression,” the court wrote.

The heart of the court’s decision derided the HUD officials for the lengthy investigation of the group’s activity. The court pointed out the investigation substantially exceeded the 100-day limit permitted in the Fair Housing Act.

The court criticized the officials for ordering the activists to stop speaking publicly about the project and demanding they end a lawsuit filed against a zoning board member. HUD also requested numerous documents from the activists, including meeting minutes, literature, posters, newsletters, flyers and names of their contacts. The officials’ acts “would have chilled or silenced a person of ordinary firmness from engaging in future First Amendment activities.”

The group successfully defeated the federal officials’ claimed immunity, said the court, by demonstrating they violated clearly established and widely known constitutional rights.

“[R]easonable government officials would have known that they could not conduct an eight-month investigation into the vocal but entirely peaceful opposition of residents to a housing project proposed for their neighborhood, or into their efforts to persuade the appropriate government agencies of their point of view,” the court stated.

The court distinguished the group’s speech content from unprotected speech. “Advocacy is unprotected only if it is ‘intended to produce, and likely to produce, imminent disorder’; ‘advocacy of illegal action at some indefinite future time’ is not actionable,” Reinhardt stated, quoting a U.S. Supreme Court case.

Because the court here was affirming only the district court’s granting of the activists’ motion for summary judgment on liability, the court did not assign or approve monetary damages.

(White v. Lee; Media Counsel: Kenneth Marcus, Cooper, Carvin & Rosenthal, Washington, D.C.) DB

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