Extension of Notice FHEO-97-1, 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
               FAIR HOUSING AND EQUAL OPPORTUNITY

Special Attention of:                    Notice  FHEO 98-1

FHEO Office Directors                     Issued: April 30, 1998
Program HUB Directors
Program Center Directors                 Expires: April 30, 1999
Staff, office of Enforcement

                                   Cross References:

Subject:  Extension of Notice FHEO-97-1, Substantive and
          Procedural Limitations on Filing and Investigating Fair
          Housing Act Complaints That May Implicate The First
          Amendment.

     This Notice extends Notice FHEO 97-1, same subject, which
expired April 30, 1998, until April 30, 1999.

                              Eva M. Plaza, Assistant Secretary
                                for Fair Housing and Equal
                         Opportunity

EDE:      Distribution: W-3-1, W-2 (FHEO), R-2 (FHEO)

          U.S. Department of Housing and Urban Development
          Office of Fair Housing and Equal Opportunity

Special Attention of:                             Notice  97-1

FHEO Office Directors                   Issued:  April 4, 1997
Enforcement Directors
Compliance Directors,                   Expires:  April 30, 1998
Staff, Office of Investigations

                              Cross References:

Subject:  Extension of Notice FHEO 95-2, Substantive and
          Procedural Limitations on Filing and Investigating Fair
          Housing Act Complaints That May Implicate the First
          Amendment

     This Notice extends Notice FHEO 95-2,  same subject, which
expired April 1, 1996, until April 1, 1997.

                                   Susan M. Forward
                                   Acting Assistant Secretary
                                     for Fair Housing and Equal
                                     Opportunity

EEIE: Distribution:  W-3-1, W-2 (FHEO), R-2 (FHEO)

 U.S. Department of Housing and Urban Development
Office of Fair Housing and Equal Opportunity

Special Attention of:                      Notice  FHEO 95-2

FHEO Office Directors,              Issued: April 3, 1995
Enforcement Directors,
Compliance Directors,               Expires: April 1, 1996
Staff, Office of Investigations

                          Cross References:

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

     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 set out in this Notice.

 EEIE: Distribution : W-3-1, W-2 (FHEO), R-2 (FHEO)
                                                                 2

     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:

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

     o    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:

     o    distributing fliers, pamphlets, brochures, posters, or
          other written materials to the public at large;

     o    holding open community or neighborhood meetings;

     o    writing articles or letters to the editor or making
          statements in a newspaper;

     o    conducting peaceful demonstrations;

     o    testifying at public hearings; and

__________________________________
     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.
                                                                 3

     o    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 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 which, 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,

__________________________________
    3  This does not include litigation filed in courts.
Procedures for complaints alleging the filing of frivolous
litigation are discussed separately in this Notice.
                                                                 4

 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), Para. 25,007 (HUD Office of Admin.
 Law Judges 2-18-93); HUD v. Weber, 2 Fair Housing-Fair Lending
 (Prentice Hall), Para. 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 protested 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:

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

     o    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:

     o    distributing fliers, pamphlets, brochures, posters, or
          other written materials to the public at large;

     o    holding open community or neighborhood meetings;

     o    writing articles or letters to the editor or making
          statements in a newspaper;
                                                                 5

     o    conducting peaceful demonstrations;4

     o    testifying at public hearings; or

     o    otherwise communicating with a governmental entity
          concerning an official governmental matter.5

    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 which 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 are 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.
                                                                 6

     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
which 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 on-going, 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 on-going
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.
                                                                 7

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 Sara K.
Pratt, Director, Office of Investigations at (202)
708-0836.

                         Roberta Achtenberg, Assistant Secretary
                         for Fair Housing and Equal Opportunity