Halt that criticism

Housing officials imposed speech code

By Kenneth Smith

Washington Times, December 21, 2000

When three Berkeley, Calif., residents learned to their dismay that the city planned to house homeless persons nearby, they did what the Founding Fathers might have expected government critics to do. They published and distributed pamphlets against the project. They petitioned the city “for a redress of grievances” by expressing their opposition at local zoning board hearings.

Little did they imagine that in their democratic enthusiasms they had violated federal speech codes — zoning of a different kind — or that they would be the object of an eight-month government campaign that threatened them with a federal lawsuit and fines of up to $100,000. But then they probably didn’t know the government affords certain groups of people — in this case the mentally-ill and drug addicts — heightened legal protections against unfashionable thoughts and deeds. Now, more than eight years later, they are still fighting for vindication.

The controversy began in May 1992 when a developer sought approval to convert a run-down motel into low-income housing. Joseph Deringer, his wife, Alexandra White, and neighbor Richard Graham, protested the project would lead to an influx of homeless persons into the neighborhood. They argued that poor and minority neighborhoods had already absorbed a disproportionate number of such projects; they didn’t want more. They published newsletters against the proposed housing under headlines like “City Forcing Bell Air Project Down Our Throats.” (That they would charge Berkeley, the high temple of tolerance and conscious-raising, with piling on the poor ought to be worth a little judicial extra credit.) They also filed suit against a member of the zoning board who participated in project hearings on grounds that she had a conflict of interest.

Watching all this was a self-described housing rights advocate who complained that by trying to block the project, the protesters were illegally discriminating against the homeless, mentally ill and drug addicts. The Fair Housing Act forbids discrimination against home buyers or renters based on race, color, religion, sex, handicap, familial status, national origin or choice of addictive substance. (Recovering drug and alcohol abusers both qualify for government protection under the act.)

An analyst at the Department of Housing and Urban Development (HUD) signed-off on the activist’s complaint. In November 1992 the department fired-off a letter to the Berkeley Three announcing it would investigate the complaint. The agency said there was evidence to suggest they had “engaged in an unlawful discriminatory housing practice” and warned that if the matter ended up in federal court, they could face damages and penalties of up to $100,000.

HUD officials thoughtfully suggested the Berkeley Three could save themselves and the agency a lot of unpleasantness if they would stop acting as though as they had First Amendment rights: Drop litigation against the project and cease publishing discriminatory statements about it in newsletters and pamphlets. As the investigation continued, agency officials ratcheted up the pressure. They sought — under threat of subpoena, more six- figure fines and up to a year in prison — copies of protesters’ meeting minutes, correspondence and any other document related to the controversy. When an attorney for the protesters complained that HUD was “chilling” their free-speech rights, the agency responded that its jurisdiction under the Fair Housing Act included “allegations that individuals have engaged in speech advocating illegal acts, including discrimination against persons based on their physical or mental disabilities.”

In June 1994, HUD officials in San Francisco forwarded a report to agency personnel in Washington concluding that the Berkeley Three had broken the law. They helpfully sent along the case files in case HUD and the Justice Department wanted to prosecute. In short order, HUD officials in Washington decided that the protestors were within their rights and dropped the case a little less than two years after it began. The developer did win the city’s approval to complete the low-income housing project.

But the controversy didn’t end there. In 1995 the Berkeley Three, aided by the Washington-based Center for Individual Rights, filed suit against agency officials LaVera Gillespie, Paul Smith, Robert Zurowski and John Phillips (as well as a fifth agency employee who has since died), both in their individual and official capacities, for violating the protesters’ civil rights. In December 1998, a district court sided with the plaintiffs, and this fall a three-judge panel for the 9th U.S. Circuit Court of Appeals did too.

There was no justification for “the extraordinarily intrusive and chilling measures” HUD officials used during their investigation, the appeals court said. “[R]easonable government officials would have known that they could not conduct an eight-month investigation into the vocal but entirely peaceful opposition of residents to a housing project proposed for their neighborhood, or into their efforts to persuade the appropriate government agencies of their point of view,” the court said. “They would also have known that accusations of law-breaking, threatened subpoenas, improper broad demands for documents and information, and admonishments to cease nonfrivolous litigation and the publication of ‘discriminatory’ statements would chill ‘uninhibited, robust, and wide-open’ debate on public issues.”

The Clinton administration has since appealed the ruling to the full 9th Circuit. The incoming Bush administration should settle this case, acknowledging the First Amendment rights of both the neighborhood activists and of anyone else who dares to challenge government’s extraordinarily intrusive and chilling measures to limit political debate, however politically incorrect that debate may be.