Substantive and Procedural Limitations on Filing and Investigating Fair Housing Act Complaints. That May Implicate the First Amendment

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DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT

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Special Attention of:
FHEO Office Directors
FHEO Regional Directors
FHEO Program Center Directors
Staff, Office of Enforcement

Notice FHEO 2007-01

Issued:

May 1, 2007

Expires:

April 30, 2008

Cross References: FHEO 97-1,
FHEO 2002-02, FHEO 2003-02,
FHEO 2004-01, FHEO 2005-01,
FHEO-2006-01

Subject: Substantive and Procedural Limitations on Filing and
Investigating Fair Housing Act Complaints That May
Implicate the First Amendment

This Notice extends Notice FHEO 2006-01, same subject, which
expired on April 30, 2007. This Notice makes no substantive
changes to the policy set forth in FHEO Notice 97-1, which
Notices FHEO 2002-02, FHEO 2003-02, FHEO 2004-01 and FHEO 2005-01
extended.

This Notice sets forth specific substantive and procedural
restrictions regarding the filing and investigation by the
Department of complaints under the Fair Housing Act (the Act)
that may involve issues relating to the protections guaranteed by
the First Amendment to the United States Constitution.1

1
The Department well recognizes that there may be
disagreement with the Department's decision not to accept
complaints in certain categories of cases outlined in this
guidance. This guidance is not meant to circumscribe the right
of any individual who believes that his/her rights under the Fair
Housing Act have been violated to seek redress through private
legal action. Nevertheless, the Department recognizes that the
power and resources of the state are unique and that, for many
private citizens, being the subject of a "federal investigation"
can be inherently and unavoidably "chilling." Where activities
that on their face implicate the protections of the First
Amendment are the subject of a complaint, the Department chooses
to err on the side of the First Amendment. The Department
believes that the primacy of the First Amendment, which
guarantees full and unfettered discussion in the political forum,
weighs against the initiation of investigations of those
activities by the federal government except under the conditions

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It provides guidance to field and Headquarters staff
concerning the appropriate handling of any matter involving third
parties, such as neighbors who are not directly participating in
real estate transactions, who are alleged to have violated
Section 818 of the Act, which makes it unlawful to "coerce,
intimidate, threaten, or interfere with any person in the
exercise or enjoyment" of rights under the Act.

Absent force, physical harm, or a clear threat of force or
physical harm to one or more individuals,2 public activities
directed toward achieving action by a governmental entity or
official -- even where hostile, distasteful, and/or bigoted --
can be part of a robust discussion of public issues. Activities
to urge governmental action are an essential part of a
constitutional democracy.

Thus, this Department will not accept for filing or
investigate any complaint under Section 818 that involves public
activities that :

· are directed toward achieving action by a governmental
entity or official; and

· do not involve force, physical harm, or a clear threat of
force or physical harm to one or more individuals.

Examples of the types of public activities that are
"directed toward achieving action by a governmental entity or
official" and are covered by these guidelines include:

· distributing 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

set out in this Notice.

2 This memorandum in no way affects the Department's
practice of referring certain complaints involving threats of
violence to the Department of Justice for possible criminal
prosecution.

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· communicating directly with a governmental entity
concerning official governmental matters.

Moreover, in order to ensure that the Department's
investigative process does not interfere with protected rights
under the First Amendment, no complaint alleging a violation of
Section 818 as described above may be filed absent prior formal
approval from Headquarters.

Finally, this Notice details a number of procedural
safeguards designed to insure that, when investigations do
proceed, they are conducted promptly and in a manner that does
not interfere or chill in any way the rights of individuals to
engage in speech protected by the First Amendment.

# The Law

This Department must always act with great respect for the
constitutional protections embodied in the First Amendment,
including the rights to freedom of speech, press, and religion,
and the right to petition peaceably the government for redress of
grievances. Where Fair Housing Act concerns intersect with
First Amendment protections, the deference required under the
First Amendment to protected activities requires that the
Department not engage in investigation of certain behavior that,
although alleged to be discriminatory, is nonetheless clearly
protected by the First Amendment.

In other cases, when the facts available to the Department
do not reasonably indicate the precise applicability of the First
Amendment, the Department's investigations must be prompt and
carefully tailored to be consistent with applicable First
Amendment law and must cease where First Amendment protection is
determined to apply. In any case, increased sensitivity to First
Amendment protections must be the watchword of any investigative
activity. The Department must make every effort to assure that
its actions do not unduly chill the exercise of free speech
rights.

It is clear that the Supreme Court has, in the civil rights
context, determined that certain kinds of "speech" may
constitutionally be prohibited because the speech is limited as
part of a general prohibition against behavior which amounts to
unlawful discrimination or interference with the exercise of
civil rights. See R.A.V. v. City of St. Paul, 112 S. Ct. 2538
(1992) ; Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200 (1993)

3
This does not include litigation filed in courts.
Procedures for complaints alleging the filing of frivolous
litigation are discussed separately in this Notice.

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(citing

Roberts

v. United

States

Jaycees, 468 U.S.

609, 628

(1984) ;

Hishon

v. King &amp;

Spalding,

467

U.S. 69,

78

(1984)

; Runyon

v. Mccrary,

427

U.S. 160,

176

(1976) ) .

The Fair Housing Act, therefore, constitutionally prohibits
certain combinations of speech with behavior and speech itself
that rises to the level of conduct. For example, where third
parties, such as neighbors, engage in behavior, including speech,
which is coercive, threatening, intimidating or harassing, the
behavior may violate Section 818 of the Act. See, e.g.,
Sofarelli v. Pinellas County, 931 F.2d 718 (11th Cir. 1991) ;
People Helpers Foundation v. Richmond, 781 F. Supp. 1132 (E.D.
Va. 1992) ; HUD v. Johnson, HUDALJ 06-93-1316-8 (HUD Office of
Admin. Law Judges 7-26-94) ; HUD v. Williams, 2 Fair Housing-Fair
Lending (Prentice Hall), I 25,007 (HUD Office of Admin. Law
Judges 2-18-93) ; HUD v. Weber, 2 Fair Housing-Fair Lending
(Prentice Hall) , q 24,041 (HUD Office of Admin. Law Judges 2-18-
93) .

In order to ensure that First Amendment rights are not
chilled, the steps detailed in this Notice must be followed in
any case involving alleged violations of Section 818 of the Act
by third parties not directly involved in a real estate
transaction and which may involve speech protected by the First
Amendment.

# Complaint Review

Allegations that public activities coerced, intimidated,
threatened, or interfered with a person's exercise or enjoyment
of rights under the Fair Housing Act will not be accepted for
filing if those public activities:

· were directed toward achieving action by a governmental
entity or official; and

. did not involve force, physical harm, or the threat of
force or physical harm to one or more individuals.

Each case submitted for filing must be reviewed on its own
facts. Examples of the types of public activities that are
"directed toward achieving action by a governmental entity or
official" include:

· distributing 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;

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· conducting peaceful demonstrations;‘

· testifying at public hearings; or

. otherwise communicating with a governmental entity
concerning an official governmental matter.

An intemperate and perhaps even hostile statement made at a
zoning hearing that has the effect of making persons protected by
the Fair Housing Act feel unwelcome in a neighborhood will not be
sufficient for filing a complaint or beginning an investigation.
under the Fair Housing Act.

Furthermore, in order to assure maximum protection for
freedom of speech, no complaint involving speech under Section
818 may be accepted for filing absent prior written approval from
Headquarters.

## Cases Involving Frivolous Litigation

Where the action alleged to be discriminatory is the filing
or prosecution of a lawsuit, similar standards will apply. A
lawsuit that is frivolous can be a violation of the Act.
Sofarelli v. Pinellas County, 931 F.2d 718, 725 (11th Cir. 1991) ;
Woods-Drake v. Lundy, 667 F.2d 1198, 1202 (5th Cir. 1982) ; Miller
v. Towne Oaks East Apartments, 797 F. Supp. 557, 561-62 (E.D.
Tex. 1992); U.S. v. Scott, 788 F. Supp. 1555, 1561 (D. Kan.
1992) ; Northside Realty Associates, Inc. v. Chapman, 411 F. Supp.
1195, 1199-1200 (N.D. Ga. 1976) ; HUD v. Grappone, 2 Fair Housing-
Fair Lending (P-H), Para. 25,059 (HUD Office of Admin. Law Judges
10-1-93); U.S. v. Robinson, Civ. No. 3:92CV00345 (D. Conn. Jan.
26, 1995) ; Fair Housing-Fair Lending (P-H), Para. 15,881 (D.
Conn. 1993) (Magistrate Judge's Opinion) .

4
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 Fair Housing Act may
be cognizable. See, e.g., People Helpers Foundation v. Richmond,
781 F. Supp. 2132 (E.D. Va. 1992) (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, stated
a claim under Section 818). Because of the complexity of the
legal analysis required in these cases, however, intake staff is
directed to refer allegations of this type to Headquarters
immediately. No such complaint may be filed without prior
written approval from Headquarters.

5
This does not include litigation filed in courts.

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However, given the sensitivity and complexity of the issues
relating to such litigation, all situations involving claims that
litigation amounts to a violation of Section 818 must be cleared
with Headquarters before the complaint is filed.

# Investigatory Process

To avoid infringing upon protected speech, any investigation
that may be necessary to obtain information about the extent to
which the First Amendment may be applicable should be prompt,
narrowly tailored to gather sufficient preliminary data to allow
such a decision to be made, and conducted in close consultation
with counsel. Headquarters must concur in the investigative plan
for all cases relating to possible First Amendment issues before
the investigation is conducted.

Where investigation is undertaken, particularly when the
speech is ongoing, great care must be taken to avoid chilling the
First Amendment rights of the speakers. Such care must include,
at a minimum, conducting an expedited investigation and avoiding
any direct or indirect interference with any ongoing speech.
Where possible, investigation of speech-related activity
protected by the First Amendment should be conducted through
public records, such as-transcripts or tapes of hearings,
newspaper records, or interviews of public decision makers,
rather than interviews of the speakers or review of private
correspondence.

# Production of Documents

In no circumstances should document requests be made or a
subpoena be served or threatened in an effort to acquire
membership lists, fundraising information or financial data of an
organization that is, or may be engaging in protected speech
activities.

## Conciliation Efforts

In Section 810 (b) of the Fair Housing Act, Congress mandated
that conciliation efforts be made in every case, where feasible,
from the initial date that a complaint is filed. Because the
government carries special responsibilities under the First
Amendment that private parties do not, special sensitivity to
constitutional concerns must be demonstrated in the preparation
and transmittal of conciliation proposals. Under no
circumstances should the Department propose or transmit any
proposals that would circumscribe the First Amendment rights of
any party to the complaint.

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By following these guidelines, the Department can be certain
that any investigations that are conducted will not chill
protected political speech in any manner. Questions regarding
this guidance or specific situations should be addressed to
Turner Russell, Director, Enforcement Division, Office of
Enforcement, at (202) 619-8041, Extension 6995.

Rua Venchili

Kim Kendrick
Assistant Secretary for Fair Housing
and Equal Opportunity