Federal appeals panel: Investigation chilled outspoken residents’ speech

Thursday, September 28, 2000

Federal housing officials violated the First Amendment rights of three
California residents by investigating them for speaking out against a building
project, a federal appeals court panel has ruled.

In May 1992, a nonprofit housing developer, Resources for Community
Development, applied for a zoning permit from the Berkeley Zoning Adjustment
Board to convert a local motel into a housing unit for the homeless.

Three neighbors — Alexandra White, Joseph Deringer and Richard
Graham — expressed their opposition to these plans by writing a letter to
the Berkeley City Council, speaking out at public meetings and circulating a
newsletter they had written criticizing the project. The neighbors also formed
an association called the Neighborhood Groups Opposing the Bel Air

A housing-rights advocate, upset with the neighbors’ conduct,
petitioned the San Francisco office of the U.S. Department of Housing and Urban
Development to investigate the three for possibly violating the Fair Housing
Act. (The act is a federal law that prohibits discriminatory housing practices
and makes it unlawful “to coerce, intimidate, threaten, or interfere with
any person in the exercise or enjoyment of” rights protected by the

The housing advocate claimed that the neighbors’ comments were
discriminatory toward people with physical and mental disabilities.

The San Francisco HUD office investigated the plaintiffs, threatening
them with legal action if they did not fully cooperate with the investigation.
HUD officials warned the neighbors they could be subject to fines as great as

After an eight-month investigation, in July 1994 the San Francisco HUD
office sent a letter to the Washington office recommending that charges be
filed against the three residents for violating the Fair Housing Act. However,
in August 1994 the Washington office determined there was not enough
“reasonable cause” to issue charges against the neighbors.

The three residents then filed a lawsuit in federal court in May 1995,
alleging that the investigatory actions of the San Francisco HUD officials had
chilled their First Amendment free-speech and free-petition rights. They
alleged they were retaliated against solely for exercising their
constitutionally protected rights.

In December 1998, a federal district court rejected the defendants’
motion for qualified immunity and ruled that the HUD officials were liable.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of
Appeals yesterday agreed unanimously with the lower court in
White v. Lee. According to the panel
majority, the actions of the three neighbors were “paradigmatically
protected by the First Amendment.”

“The HUD officials’ eight-month investigation into the
plaintiffs’ activities and beliefs chilled the exercise of their First
Amendment rights,” Judge Stephen Reinhardt wrote for the panel.

Reinhardt noted that informal measures, such as threatening to invoke
legal sanctions, could violate the First Amendment just as much as imposing
criminal or civil sanctions.

The HUD officials argued that the neighbors had violated the Fair
Housing Act in part because they had filed an unsuccessful state-court lawsuit
contesting approval of the housing unit for the homeless. The HUD officials
argued that they had been justified in investigating the three neighbors to
determine if they filed their state-court lawsuit with a discriminatory

Reinhardt wrote that even though the neighbors’ state-court lawsuit
was dismissed and even if it lacked merit, “the investigation that the HUD
officials conducted exceeded the bounds of reasonable governmental action and
violated the plaintiffs’ First Amendment rights.”

Reinhardt also reasoned that when a government investigation intrudes
on citizens’ First Amendment rights, the government has the obligation “to
take the least intrusive measures necessary to perform [its] assigned

The panel also rejected the defendants’ argument that they were
entitled to qualified immunity because they did not violate any clearly
established constitutional right.

Kenneth L. Marcus, the residents’ attorney, said the decision was
significant for two reasons. “This is the first and leading case which
demonstrates to HUD officials that there are First Amendment limitations on
their investigations,” he said.

“The decision is also significant because it will serve as an
important bulwark against encroachments by all federal investigators into First
Amendment-protected activities,” he said. “It sends a clear signal
that these investigators can be held personally liable if they violate First
Amendment free-speech and free-petition rights.”

Calls to the U.S. Department of Justice were not returned.

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