Fined for Offensive Speech
Seeberger rented rooms in a single family house that she owned. In 2013, she rented a room to Michelle Schreurs and her then fifteen-year-old daughter for $300 per month. In the fall of 2014, Seeberger noticed a bottle of pre-natal vitamins on the kitchen counter. At that point, Schreurs and her daughter were the only tenants. Seeberger texted Schreurs asking, “Is there anything I should know about?”
The next day, Seeberger went to the house and asked Schreurs directly about the vitamins. Upon hearing that Schreurs’ daughter was pregnant, Seeberger told Schreurs, “You’re going to have to leave.”
Schreurs was upset and asked why she would have to leave. Seeberger responded, “You don’t even pay rent on time the way it is . . . now you’re going to bring another person into the mix.” Seeberger also remarked that “she is taking prenatal vitamins,” so “obviously you’re going to keep the baby.” Schreurs and her daughter moved out three weeks later.
Schreurs soon after filed a complaint with the Davenport Civil Rights Commission, which has the authority to investigate complaints of discrimination under Davenport’s housing discrimination ordinance, which is modeled after the federal law. Following a hearing, an Administrative Law Judge found that Seeberger had made discriminatory statements regarding familial status based on the following findings:
Seeberger immediately terminated Schreurs’s tenancy after finding out her teenage daughter was pregnant. Seeberger testified she was disappointed with Schreurs and believed Schreurs had taken advantage of her. Seeberger relayed she thought Schreurs was irresponsible when she permitted her teenage daughter to become pregnant. During the hearing Seeberger testified adding a third person to the family was no different than if Schreurs had purchased a new Cadillac. Seeberger testified she would not take a vacation she could not pay for in advance. An ordinary listener listening to Seeberger’s statements would find her statements discriminatory on the basis of familial status. Seeberger engaged in a discriminatory housing practice by making the statements.
The District Court upheld the finding on the grounds that the state has greater latitude to regulate commercial speech and that “it is well settled that discriminatory statements made in the context of housing are illegal.” The Iowa Court of Appeals “assumed without deciding” that [Seeberger’s] statements concerned a lawful activity, but ruled that that the state has a substantial interest in “prohibiting landlords from subjecting prospective tenants to the stigmas associated with being knowingly discriminated against.” The Iowa Supreme Court affirmed this portion of the Court of Appeals ruling without addressing Seeberger’s First Amendment argument.
There are many good reasons to set aside the Iowa rulings, one of which being that eliminating offense has never been an adequate governmental interest to support a band on speech. Moreover, as the Seventh Circuit observed in another case, “any rule that forbids truthful advertising of a transaction that would be substantively lawful encounters serious problems under the first amendment.”
Although the Davenport municipal code prohibits advertising a discriminatory preference in housing, Seeberger’s comments were not an advertisement — they were an explanation for a legal housing eviction. Seeberger was renting out a room in the one house that she owned, so she was not subject to the municipal codes prohibition on familial status discrimination, which only applies to owners of four or more homes. Accordingly, there was no plausible justification for punishing such speech since it does not facilitate illegal discrimination.
Even if the eviction had been illegal, there would have been no legitimate reason for separately punishing the speech. Admitting a discriminatory reason for an unlawful eviction could provide evidence to prosecute an illegal eviction. There would be no reason to separately punish the confession.
In the absence of a legitimate state interest in punishing a truthful explanation of the reason for a lawful eviction, Davenport effectively punished Seeberger’s speech because officials found it distasteful and hurtful. However, the First Amendment does not permit Davenport to punish speech simply because it expresses a point of view that city officials find objectionable.