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Federal court finds HUD officials violated First Amendment

Officials held personally liable for investigating critics of housing project

Washington, D.C. – In a landmark case challenging the Clinton Administration’s use of federal discrimination law to suppress unpopular opinions, the U.S. Court of Appeals for the Ninth Circuit ruled yesterday afternoon that federal HUD officials are personally liable for launching a housing discrimination investigation against three people who peacefully opposed placement of a housing project in their neighborhood. The court found that the three Berkeley, California residents “were doing what citizens should be encouraged to do, taking an active role in the decisions of government.” The court concluded that the “HUD officials’ eightmonth investigation into the plaintiffs’ activities and beliefs chilled the exercise of their First Amendment rights.” Because the “officials could not have reasonably believed their actions to be consistent with the First Amendment,” the Ninth Circuit held that they were personally liable for damages.

The case, White v. Lee, grew out of the Clinton Administration’s anti-bias campaign, specifically efforts by Roberta Achtenberg, civil rights enforcer at the Department of Housing & Urban Development until 1995, to use the Fair Housing Act to quiet opposition to housing projects for the homeless, substance abusers, and the like. As a result, HUD investigated the three Berkeley residents, who opposed such a project in their neighborhood. In addition to asking the city council and zoning board not to approve the project, the “Berkeley Three” – as they became known – voiced opposition by publishing a newsletter, talking to the press, urging others to oppose the project, and filing a lawsuit. HUD officials launched an extensive investigation, including demands that the three turn over minutes of meetings and correspondence with other organizations. HUD announced that the three had violated the Fair Housing Act, and threatened prosecution and a fine of up to $100,000, unless they terminated their publication and litigation.

The Center for Individual Rights (CIR) agreed to represent the Berkeley Three in a suit against various HUD officials. A federal district court ruled in favor of the three in December, 1998, a decision that was affirmed yesterday by the Ninth Circuit. The amount of damages will be determined in the district court. The case was argued before the Ninth Circuit by CIR co-counsel Kenneth Marcus of Cooper, Carvin & Rosenthal.

“The Ninth Circuit’s decision is sure to have a wide impact, by making it clear that anti-discrimination laws cannot be used to chill the constitutionally protected expression of unpopular views,” said Curt Levey, CIR’s Director of Legal & Public Affairs. “This decision puts governmental officials everywhere on notice that they will pay damages out of their own pockets if they intentionally disregard First Amendment rights.”

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