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 96-2
FHEO Office Directors
Enforcement Director,                    Issued: April 2, 1996
Compliance Directors,
Staff, Office of Investigations         Expires: April 4, 1997

                                        Cross References:

Subject:  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 will expire
April 1, 1996, until April 4, 1997.

                              Acting Deputy Assistant Secretary
                              for Policy & Initiatives
                              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  95-2
FHEO Office Directors,
Enforcement Directors,                   Issued:  April 3, 1995
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 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 prosection.
                                                                 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, 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.
                                                                 4

(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 06-03-1316-8 (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. 1132  (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 issued 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 X. Pratt, Director, Office of Investigations at
(202) 708-0836.

                              Roberta Achtenberg, Assistant Secretary
                              for Fair Housing and Equal Opportunity