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Politics : PRESIDENT GEORGE W. BUSH -- Ignore unavailable to you. Want to Upgrade?

To: DuckTapeSunroof who wrote (763612)	7/19/2007 7:11:50 PM
From: longnshort	Read Replies (1) \| Respond to of 769670

Government must remember First Amendment protects unpopular views, too By Douglas Lee Lawyer, Ehrmann Gehlbach Badger & Lee 10.09.00 Even by politically correct standards, this overreaction to speech is breath-taking. The startling facts in this case became national news recently, when the 9th U.S. Circuit Court of Appeals held in White v. Lee that employees of the U.S. Department of Housing and Urban Development had unlawfully investigated three California residents. The residents' alleged crime? Speaking out against a proposed housing project for the mentally and physically disabled. According to the HUD employees, the residents' protests violated the Fair Housing Act, which prohibits discriminatory housing practices. By protesting the conversion of a motel into a housing unit for the homeless, the HUD employees said, these residents were discriminating against the disabled. The 9th Circuit said otherwise. In affirming a trial court decision, the appellate panel slammed HUD and its employees for using their investigative powers to chill the residents' politically insensitive speech, which included letters to public officials, comments at public meetings and the publication of a newsletter critical of the project. Despite the fact that these activities clearly were protected by the First Amendment, the court said, the HUD employees: Investigated the residents for eight months, more than twice as long as the 100-day period the Fair Housing Act presumes appropriate for legitimate investigations. Advised the residents they had violated the act by distributing "discriminatory" fliers. Offered to drop the investigation if the residents ceased speaking about the project. Threatened the residents with fines of up to $100,000 if they did not cease their opposition to the project. Required the residents to produce copies of their publications regarding the project. Interrogated the residents regarding their views and public statements. Told the news media that the residents' activities violated the act. These actions, the court said, "would have chilled or silenced a person of ordinary firmness from engaging in future First Amendment activities." The actions therefore exposed the HUD employees to personal financial liability, although, as the court noted, HUD likely will indemnify the employees for any damages awarded. As the rest of us should be, the judges were astounded by HUD's blatant disregard of the residents' rights. Even though the residents "engaged in activity paradigmatically protected by the First Amendment," HUD maintained an investigation designed to silence their opposition. HUD claimed that the residents' unpopular views gave it reason to intervene, but the court rejected that notion, holding that advocacy of controversial viewpoints is "the essence of First Amendment expression." The court then dismissed HUD's argument that its investigation was justified by the residents' purportedly illegal advocacy against the disabled. Since the U.S. Supreme Court decided Brandenburg v. Ohio in 1969, the appeals court said, the law has been clear that "a person's speech or petitioning activity is not removed from the ambit of First Amendment protection simply because it advocates an unlawful act." Under Brandenburg, advocacy can be proscribed only when it is intended and likely to incite "imminent lawless action," a standard the residents' peaceful speech did not meet. Finally, the HUD employees desperately claimed that their investigation had not been aimed at the residents' speech but rather at a lawsuit the residents had filed to stop the project. In the lawsuit, the residents argued that the project's zoning had been improperly granted because a member of the developer's board of directors also sat on the zoning board. That lawsuit failed when a court held that a "good faith" exception in California law allowed the zoning board to act in spite of the clear conflict of interest. The 9th Circuit found HUD's claim to be disingenuous. During the investigation, the court said, HUD employees made "little or no effort" to investigate the merits of the residents' suit. HUD did not mention the lawsuit in its threatening letter to the residents or in its questioning of them. Nor did HUD's final investigative report contain any substantial information about the lawsuit. HUD's only focus, the court correctly concluded, was to take a course "certain to chill the exercise of the [residents'] First Amendment rights." The residents in this case are part of the country's newest minority – those who dare to speak out against politically protected classes. In the government's rush to protect these classes, it unfortunately often tramples the constitutional rights of those who oppose this protection. The 9th Circuit decision hopefully will remind the government that it cannot guarantee some minorities' civil rights by denying those rights to others.

To: DuckTapeSunroof who wrote (763612)	7/19/2007 7:13:30 PM
From: longnshort	Read Replies (1) \| Respond to of 769670

Federal appeals panel: Investigation chilled outspoken residents' speech By David Hudson The Freedom Forum Online 09.28.00 Printer-friendly page Federal housing officials violated the First Amendment rights of three California residents by investigating them for speaking out against a building project, a federal appeals court panel has ruled. In May 1992, a nonprofit housing developer, Resources for Community Development, applied for a zoning permit from the Berkeley Zoning Adjustment Board to convert a local motel into a housing unit for the homeless. Three neighbors — Alexandra White, Joseph Deringer and Richard Graham — expressed their opposition to these plans by writing a letter to the Berkeley City Council, speaking out at public meetings and circulating a newsletter they had written criticizing the project. The neighbors also formed an association called the Neighborhood Groups Opposing the Bel Air Conversion. A housing-rights advocate, upset with the neighbors' conduct, petitioned the San Francisco office of the U.S. Department of Housing and Urban Development to investigate the three for possibly violating the Fair Housing Act. (The act is a federal law that prohibits discriminatory housing practices and makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of" rights protected by the law.) The housing advocate claimed that the neighbors' comments were discriminatory toward people with physical and mental disabilities. The San Francisco HUD office investigated the plaintiffs, threatening them with legal action if they did not fully cooperate with the investigation. HUD officials warned the neighbors they could be subject to fines as great as $100,000. After an eight-month investigation, in July 1994 the San Francisco HUD office sent a letter to the Washington office recommending that charges be filed against the three residents for violating the Fair Housing Act. However, in August 1994 the Washington office determined there was not enough "reasonable cause" to issue charges against the neighbors. The three residents then filed a lawsuit in federal court in May 1995, alleging that the investigatory actions of the San Francisco HUD officials had chilled their First Amendment free-speech and free-petition rights. They alleged they were retaliated against solely for exercising their constitutionally protected rights. In December 1998, a federal district court rejected the defendants' motion for qualified immunity and ruled that the HUD officials were liable. On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals yesterday agreed unanimously with the lower court in White v. Lee. According to the panel majority, the actions of the three neighbors were "paradigmatically protected by the First Amendment." "The HUD officials' eight-month investigation into the plaintiffs' activities and beliefs chilled the exercise of their First Amendment rights," Judge Stephen Reinhardt wrote for the panel. Reinhardt noted that informal measures, such as threatening to invoke legal sanctions, could violate the First Amendment just as much as imposing criminal or civil sanctions. The HUD officials argued that the neighbors had violated the Fair Housing Act in part because they had filed an unsuccessful state-court lawsuit contesting approval of the housing unit for the homeless. The HUD officials argued that they had been justified in investigating the three neighbors to determine if they filed their state-court lawsuit with a discriminatory purpose. Reinhardt wrote that even though the neighbors' state-court lawsuit was dismissed and even if it lacked merit, "the investigation that the HUD officials conducted exceeded the bounds of reasonable governmental action and violated the plaintiffs' First Amendment rights." Reinhardt also reasoned that when a government investigation intrudes on citizens' First Amendment rights, the government has the obligation "to take the least intrusive measures necessary to perform [its] assigned functions." The panel also rejected the defendants' argument that they were entitled to qualified immunity because they did not violate any clearly established constitutional right. Kenneth L. Marcus, the residents' attorney, said the decision was significant for two reasons. "This is the first and leading case which demonstrates to HUD officials that there are First Amendment limitations on their investigations," he said. "The decision is also significant because it will serve as an important bulwark against encroachments by all federal investigators into First Amendment-protected activities," he said. "It sends a clear signal that these investigators can be held personally liable if they violate First Amendment free-speech and free-petition rights." Calls to the U.S. Department of Justice were not returned.