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Boys Town v. SCSD: defending free speech

CIR victory helps DC community activists fight effort to silence them

CIR clients Will Hill and Ellen Opper-Weiner

One of the bedrock principles of democratic self-rule is that citizens have a constitutional right to speak out about matters of public concern -- particularly to their elected representatives and governmental bodies.

In recent years, housing acitivists have used federal housing discrimination law to punish neighborhood groups that speak out against proposed housing projects. CIR has won a string of victories challenging this tactic. The Boys Town case is a recent and vivid example of CIR's successful effort to protect the right of citizens to speak out on matters of public concern, no matter how inconvenient that may make things for

Southeast Citizens for Smart Development (SCSD) and two of its leaders -- Will Hill and Ellen Opper-Weiner -- successfully fought a lawsuit intended to silence the group's opposition to a local housing project for troubled youth. The Washington, D.C. citizens group opposed plans by Nebraska-based Boys Town to build the project in Washington's southeast sector. Rather than accept SCSD's invitation to meet and discuss the group's concerns, Boys Town decided to sue.

SCSD expresses doubts about the Boys Town project

Site of Boys Town's federally financed housing project -- cost to taxpayers of the 1.6 acre lot: $7.1 million

SCSD Chairman Will Hill addresses the group's supporters

Southeast Citizens for Smart Development was concerned about Boys Town's plan to put troubled teenagers into what D.C. Council member Sharon Ambrose called "a very fragile neighborhood that has been plagued by open-air drug markets." SCSD also questioned the excessive cost to taxpayers of both the federally financed housing project and the $150 per day subsidy Boys Town would have received for each youth. "It's the wrong project in the wrong place at the wrong time," said SCSD Chairman Will Hill. Read about Will in The Hill.

Boys Town resorts to a federal lawsuit

"E-MAIL, PHONE, OR WRITE BOYS TOWN EXECUTIVE DIRECTOR FATHER VAL PETER. EXPRESS YOUR DISAPPROVAL OF THE PLACEMENT OF A GROUP HOME FOR 40-50 VERY TROUBLED TEENS IN A NEIGHBORHOOD STRUGGLING WITH CRIME AND OPEN-AIR DRUG MARKETS." -- SCSD LEAFLET

"FATHER FLANAGAN WOULD ROLL OVER IN HIS GRAVE. THE CRUSADING PRIEST WHO FOUNDED BOYS TOWN . . . WAS BY ALL ACCOUNTS A SELFLESS INDIVIDUAL DEVOTED TO RESCUING WAYWARD YOUTH; BUT HIS 21ST CENTURY STANDARD-BEARER IS AN ANGRY, DEFENSIVE PRIEST WHO SEES ENEMIES EVERYWHERE." -- THE HILL, SEPTEMBER 5, 2001

After SCSD publicly criticized the housing project, lobbied local officials, circulated petitions, and otherwise opposed the project, Boys Town responded with a lawsuit in August 2001. The suit was announced at a splashy press conference in front of the Lincoln Memorial. Read the Washington Post's description. The suit charges that SCSD, Will Hill, Ellen Opper-Weiner, District officials, and the City itself violated the federal "Fair Housing Act's prohibitions against discrimination on the basis of race and handicap." Boys Town says that many of the youths expected to live in the project will be minorities with mental or emotional disabilities. But Boys Town has failed to cite any evidence that bias underlies opposition to the housing project. In fact, SCSD's leadership and membership includes minorities. As SCSD Vice Chair Opper-Weiner notes, the suit was "meant to harass and shut us up." Read about the "angry, defensive" man behind the lawsuit.

CIR teams up with the American Civil Liberties Union to protect free speech

THE FAIR HOUSING ACT "MUST BE READ WITH FUNDAMENTAL FIRST AMENDMENT PRINCIPLES IN MIND, PERHAPS MOST IMPORTANTLY THAT POLITICAL SPEECH IS AT THE HEART OF THE FIRST AMENDMENT." -- CIR'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

Regardless of the merits of the Boys Town project, SCSD's members acted in the finest tradition of participatory democracy in speaking out against the project. In fact, the First Amendment affords its greatest protection to just this sort of political speech. So when Boys Town attempted to twist the Fair Housing Act to silence Southeast Citizens, CIR came to their rescue. As part of its mission to protect free speech, CIR agreed to represent defendants SCSD, Opper-Weiner, and Hill. CIR is joined in this fight by its able co-counsel, the local chapter of the ACLU.

Boys Town abandons its original allegations

CIR General Counsel Michael Rosman addresses opponents of the Boys Town project

Boys Town, in a virtual admission that SCSD's public criticism and lobbying is protected by the First Amendment, amended its initial complaint to focus on a single accusation against the group and its leaders, namely that they violated the Fair Housing Act by bringing a "sham" zoning appeal of the City's issuance of building permits for the housing project. But the right to seek redress in the courts is also constitutionally protected, so on December 19, 2001, CIR and the ACLU filed a motion to dismiss the remaining claim against SCSD, Opper-Weiner, and Hill. The motion is based on the First Amendment's guarantee of both free speech and the right to petition through the judicial process.

Victory for CIR and free speech

"THE AMENDED COMPLAINT ALLEGES THAT THE [ZONING] APPEAL 'IS WITHOUT ANY LEGAL MERIT AND LACKS ANY GOOD FAITH BASIS' . . . . FIRST, THE APPEAL IS NOT BASELESS, BUT REASONABLE. SECOND, THE APPEAL WOULD BE PROTECTED PETITIONING ACTIVITY EVEN IF (CONTRARY TO LAW) IT WERE BASELESS." -- MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

In another victory for CIR, a federal judge dismissed the case against SCSD and its members. The judge ruled, just as CIR argued, that SCSD's actions were protected under the first amendment. This was just one in a string of victories in similar cases where groups opposing housing projects are unfairly persecuted for their objections.

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