Developers nail free speech

Don’t criticize developers if you don’t want to get sued

By Jeremy Rabkin

The American Spectator, December 1, 2000

Late last summer federal courts in California offered some good news for friends of free speech–and some bad news. The bad may well prove more significant than the good. But both developments should remind us of what is by now rather old news: Champions of civil rights often show little patience for free speech.

The welcome news is that civil rights enforcers at the U.S. Department of Housing and Urban Development received a decisive rebuke from the U.S. Court of Appeals for the Ninth Circuit in late September. The case of White v. Lee grew out of early efforts by the Clinton administration to deploy civil rights laws for gagging citizen protests against public housing projects.

Alexandra White and two other residents of Berkeley, California, had organized protests against plans for a special housing facility in their neighborhood. The project was supposed to provide housing for homeless people, including substance abusers, but it would be located across the street from several liquor stores. White and other critics urged the city council and the local zoning board to reject the project, then tried to mobilize opposition by publishing a small newsletter and sharing their concerns with local newspapers. Finally, they filed a lawsuit.

When proponents of the project complained, HUD officials proceeded to launch an investigation of White and her collaborators for violating the Fair Housing Act–on the premise that opposing this project might constitute ” discrimination against the handicapped.” Through eight months of investigation, HUD investigators demanded to see private correspondence, private notes about meetings, and other records to determine the precise motives of these citizens. Finally, HUD told them that they would face prosecution, with possible fines of up to $100,000, if they did not abandon their lawsuit and cease writing and speaking against the proposed new housing project.

National publicity forced HUD to announce a new policy in 1994 and to drop its threats against the Berkeley citizens. But White and her fellow critics continued to fight back. In a lawsuit brought on their behalf by the Washington-based Center for Individual Rights (CIR), they protested that the whole investigation had violated their First Amendment rights. A federal judge agreed that HUD officials could be held personally liable for damage claims. In its forceful September opinion upholding this ruling, the Ninth Circuit insisted that, whatever regulations HUD may have issued to authorize such investigations, the investigating officials “could not have reasonably believed their actions to be consistent with the First Amendment.” A CIR press release exulted that this decision made it “clear that anti- discrimination laws cannot be used to chill unpopular speech.”

Well, not quite. Only a few weeks earlier, a federal district judge offered a rather different approach in a seemingly similar case, which arose in Fresno, California. Here, the suit was brought by a private developer, irked that citizens and city council members had opposed public subsidies and zoning permits for a low-cost housing project. The Affordable Housing Development Corporation (AHDC) sued everyone around, including the city of Fresno, most of the council members, individually, and a list of private citizens who had spoken out against the project. The Center for Individual Rights ended up representing one of these citizens, Travis Compton, a first- time home-owner and a father with young children, who had already expended some $30,000 in legal fees before receiving pro bono assistance from CIR.

CIR attorney Nicholas Hentoff (son of the columnist and free speech crusader, Nat Hentoff) submitted a florid brief in AHDC v. Fresno, comparing the “multi-millionaire” owner of AHDC to a nineteenth-century “Robber Baron… wielding his wealth like a bloody club, spending tens of thousands of dollars in legal fees to file one frivolous complaint after another”: “It is time (he) is told that the Federal courts are not…a forum for seeking revenge against a citizen whose only transgression was to petition his elected representative for a redress of grievances.”

Federal Judge Oliver Wanger ultimately agreed that there was not enough evidence against Compton and the other citizens to proceed with a trial. But he would not agree that the First Amendment offered any general guarantee of the right to criticize housing projects: “The First Amendment does not necessarily trump the Civil Rights Act or state and federal fair housing laws, ” Judge Wanger explained in his August 31 ruling. “Unlawfully discriminatory conduct carried out by speech activities is not immunized by the First Amendment.”

Meanwhile, Compton and the other citizens have no recourse against the developer. Even if Judge Wanger had recognized that First Amendment rights were at stake, a lawsuit by a private citizen will not be viewed as a deprivation of First Amendment rights. The recourse that Alexandra White had against HUD would not be available against a private litigant. And there is a real problem.

The AHDC case seems to be the first in which a private developer has invoked anti-discrimination statutes to punish ordinary citizens for speaking out against a controversial project. It may not be the last, however. Such suits might be hard to win at trial, but they have great potential as tactical maneuvers. Mounting a legal defense, even if ultimately successful, might easily bankrupt an ordinary citizen–especially if (as Judge Wanger’s decision assumes) the defense must engage in detailed analysis of who said what to whom and with what motives. The mere threat of litigation might intimidate ordinary citizens or civic groups from continuing to voice public criticism of a controversial project. The First Amendment is supposed to be a firm, constitutional barrier to such ventures in “chilling” free speech. At present, it is not clear that it is.

The AHDC case is not an isolated instance. Courts have shown remarkable readiness to forget about the First Amendment when behavior is defined as discrimination. By gradual steps, the most repressive policies have come to seem reasonable, if courts blind themselves to the implications for free speech.

Harassment law is the leading example of this trend. The Supreme Court has acknowledged for decades that the First Amendment does not protect direct personal threats or even “fighting words,” likely to provoke a violent response. Fair enough. The Equal Employment Opportunity Commission decided in the 1970’s that employers would be guilty of discrimination if minority employees were subject to a continued barrage of racial epithets. Again, quite sensible. But once employers are responsible for ensuring there is no ” hostile environment” for minority employees, they are pressed to impose more extensive controls.

In its 1997 ruling in Schwapp v. Avon, the Second Circuit Court of Appeals ruled that a discrimination claim, charging a hostile work environment, could properly invoke comments not actually made to the plaintiff and even comments made before the plaintiff was hired because when a victim “learns second-hand of a racially derogatory comment or joke by a fellow employee…(that) can impact the work environment.” Some courts have even held that messages sent from home computers to fellow workers could be seen as contributing to a ” hostile environment” in the workplace.

Applying this sort of reasoning to sexual harassment claims leads to very extreme results. Employers have been sued for allowing employees to tell off- color jokes or for displaying semi-nude calendar pictures–alleged, of course, to constitute a “hostile environment” for women. So during the Lewinsky scandal legal experts advised employers not to allow office workers to get into discussions about the Starr Report or the details of the president’s conduct–lest this create a “hostile environment.”

Needless to say, the Clinton administration did not stir itself to disavow such advice. To the contrary, civil rights enforcers in the Clinton administration have continued to press for expanded conceptions of “hostile environment” discrimination. The Education Department insists that student e- mail can constitute a “hostile environment”–even for those who do not receive it, but merely hear about it. So, too, it warns that display of artwork with sexual imagery may create a “hostile environment.” Last year, the Justice Department’s Civil Rights Division launched an investigation into claims that a high school had created a “racially hostile educational environment” by calling its male teams “Warriors” and its female teams ” Squaws.” (The school avoided a lawsuit by renaming its female teams “Lady Warriors.”)

These and many other examples have been usefully catalogued in a recent article by Eugene Volokh, a law professor at UCLA, in the journal Law and Contemporary Problems. Volokh, who has devoted much of his career to warning about inroads on free speech, notes that “very few court decisions have… been willing to reach out and decide the First Amendment issues involved” in harassment law. This applies to other areas where even seemingly mainstream political speech is treated as unlawful “discrimination”–as the AHDC cases illustrates.

Volokh says, quite correctly, that private lawsuits–demanding compensation for the discrimination and harm imposed by a “hostile environment”– are as much responsible for the broader trend as overeager civil rights enforcers in the Clinton administration. Nervous managers and addled college administrators were all to quick to respond with restraints on “hate speech” or anything that might offend hypersensitive–or just litigious–people in their organizations. “Maybe a more ideological Administration might have tried to lead some sort of anti-‘hate speech’ crusade,” Volokh writes, “but that’s not what happened under Clinton.” Maybe a new administration will give the matter a little more thought.