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

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of Fair Housing and Equal Opportunity
Special Attention of: Notice FHEO-2012-01
FHEO Office Directors
FHEO Regional Directors
FHEO Program Center Directors
Staff, Office of Enforcement
Issued:
Expires: Effective until Amended,
Superseded, or Rescinded
Cross References: FHEO 97-1,
FHEO 2002-02, FHEO 2003-02,
FHEO 2004-01, FHEO 2005-01,
FHEO 2006-01, FHEO 2007-01,
FHEO 2008-01, FHEO 2009-01
Subject: Substantive and Procedural Limitations on Filing and
Investigating Fair Housing Act Complaints That May
Implicate the First Amendment
This Notice extends Notice FHEO 2009-01, same subject,
which expired on April 30, 2010. This Notice makes no
substantive changes to the policy set forth in FHEO Notice 97-
which Notices FHEO 2002-02, FHEO 2003-02, FHEO 2004-01, FHEO
2005-01, FHEO 2006-01, FHEO 2007-01, FHEO 2008-01, and FHEO
2009-01 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 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
Distribution: W-3-1

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 granted or protected 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, and will not investigate, any complaint under
Section 818 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 the types of public activities that are
"directed toward achieving action by a governmental entity or
official" and are covered by these guidelines include:
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
set out in this Notice.
2 This Notice 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.

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
communicating directly with a governmental entity
concerning official governmental matters.3
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 ensure that, when investigations do
proceed, they are conducted promptly and in a manner that does
not interfere with 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
3 This does not include litigation filed in courts.
Procedures for complaints alleging the filing of frivolous
litigation are discussed separately in this Notice.

Department must 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)
(citing Roberts v. United States Jaycees, 468 U.S. 609, 628
(1984); Hishon v. King & 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), 1 25,007 (HUD Office of Admin. Law
Judges 2-18-93); HUD v. Weber, 2 Fair Housing-Fair Lending
(Prentice Hall), ¶ 24,041 (HUD Office of Admin. Law Judges 2-18-
93); HUD v. Hope, HUDALJ 04-99-3640-8 & HUDALJ 04-99-3509-8,
(2002 WL 983040 (HUD Office of Admin. Law Judges 5-8-02)).

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.
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
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 meeting
writing articles or letters to the editor or making
statements in a newspaper;
conducting peaceful demonstrations;
testifying at public hearings; or
otherwise communicating with a governmental entity
concerning an official governmental matter.4
This does not include litigation filed in courts.

6
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.
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).

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
Under 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
Section 810(b) of the Fair Housing Act mandates that
conciliation efforts must be made in every case, where feasible,
commencing from the initial date on which a complaint is filed
with the Department. 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 make or
transmit a conciliation proposal that would deprive any party to
the complaint of his or her First Amendment rights.
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 Lynn Grosso, Director, Office of Enforcement,
(202) 402-5361.
Jo rasvilla
As i tant Secretary for
Housing and Equal Opportunity