HUD Guidance on First Amendment Conflict with Fair Housing
The Department of Housing & Urban Development (HUD) published Notice FHEA-2015-01 on May 26, 2015. The title of the Notice is Substantive and Procedural Limitations on Filing and Investigating Fair Housing Act Complaints That May Implicate the First Amendment.
The Notice sets forth specific restrictions regarding HUD investigation of fair housing complaints that may involve issues relating to the protections guaranteed by the First Amendment to the United States Constitution. The guidance does not prevent any individual who believes that his/her rights under the Fair Housing Act (FHA) have been violated from taking private legal action. However, HUD believes that the primacy of the First Amendment, which guarantees full and unfettered discussion in the political forum, prevents the initiation of investigations of those activities by the federal government in most cases. The Notice provides guidance to HUD staff concerning the appropriate handling of any matter involving persons, such as neighbors, who are not directly participating in real estate transactions, but who are alleged to have violated the FHA.
Unless there is force, physical harm, or a clear threat of force or physical harm to one or more individuals, public activities directed toward achieving action by a governmental entity or official – even when hostile, distasteful, and/or bigoted – can be part of a robust discussion of public issues. For this reason, HUD will not accept for filing, and will not investigate, any complaint under the FHA that involves public activities:
- That are directed toward achieving action by a governmental entity or official; and
- That do not involve force, physical harm, or a clear threat of force or physical harm to one or more individuals.
Examples of these types of “public activities” include:
- Distribution of fliers, pamphlets, brochures, posters, or other written materials to the public at large;
- Holding open community or neighborhood meetings;
- Writing articles or letters to the editor or making statements in a newspaper;
- Conducting peaceful demonstrations;
- Testifying at public hearings; and
- Communicating directly with a governmental entity concerning official governmental matters.
In certain circumstances where such activities repeatedly occur in close proximity to a captive audience, such as in front of an individual’s home, a claim under the FHA may be legitimately investigated and pursued as a violation of the law. (A landmark case in this area was People Helpers Foundation v. Richmond in 1992. This Virginia case found that a course of harassment, which included neighbors organizing in front of a group home for persons with disabilities, using derogatory language to refer to the occupants, and photographing occupants and volunteers, was a possible violation of the FHA). On the other hand, an intemperate and perhaps even hostile statement made at a zoning hearing that has the effect of making persons protected by the FHA feel unwelcome in a neighborhood will not be sufficient for filing a complaint or beginning an investigation under the FHA.
The Law
Constitutional protections in the First Amendment include the free practice of religion and speech, as well as the rights of a free press. It also guarantees the right of the people peaceably to assemble and to petition the government for a redress of grievances. HUD will not engage in investigation of behavior that, although alleged to be discriminatory, is nonetheless clearly protected by the First Amendment.
When investigating complaints, HUD officials are to be particularly sensitive to any First Amendment protections and ensure that departmental actions do not unduly chill the exercise of free speech rights.
The Supreme Court has, in the civil rights context, held that certain acts of coercion, intimidation and threats of bodily harm are not protected by the First Amendment. For example, “true threats,”i.e., statements that a reasonable person would perceive as a serious expression of intent to do harm, have no First Amendment protection.
This Notice makes it clear that HUD will not pursue fair housing complaints against groups or individuals for exercising their First Amendment rights in a public setting. However, coercion, threats, or intimidation against individuals or private entities (e.g., a specific apartment community) are not protected by the First Amendment and are subject to investigation and prosecution under the Fair Housing Act.