Constitutional Opinions: Developers Nail Free Speech
Rabkin, Jeremy
city council members had opposed pub- lic subsidies and zoning permits for a low-cost housing project. The Affordable Housing Development Corporation (AHDC) sued everyone around, includ-...
...The bad may well tigators demanded to see private corre- private citizens who had spoken out prove more significant than the good...
...wielding laws for gagging citizen protests against brought on their behalf by the Wash- his wealth like a bloody club, spending public housing proiects...
...T he AHDC case is not an isolated instance...
...young children, who had already expendenforcers at the U.S...
...It may not be the last, however...
...Last year, the Jus47 The American Spectator 9 December 2ooo/January 2oo~ rice 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 First Amendment is supposed courts have even held that messages sent to be a firm, constitutional barrier to from home computers to fellow worksuch ventures in "chilling" free speech...
...Finally, HUD Champions of civil rights often show lit- told them that they would face prosecu- time home-owner and a father with tle patience for free speech...
...Here, the suit was brought by a private developer, irked that citizens and citizens have no recourse against the 46 9 The American Spectator December 2ooo/January 2ooz Courts have shown a remarkable readiness to forget about the First Amendment when the developer...
...The Supreme Court has acknowledged for decades that the First this create a "hostile environment...
...But White and her fellow critics millionaire" owner of AHDC to a nineton administration to deploy civil rights teenth-century"Robber Baron...
...L ate last summer federal courts in this project might constitute "discrimiCalifornia offered some good nation against the handicapped...
...Some ject...
...By gradual steps, the most repressive policies have come to seem reasonable, if courts blind themselves to the implications for flee speech...
...N for women...
...Finally, the?, filed a lawsuit...
...A CIR press release exult- the right to criticize housing projects: newspapers...
...White and other critics urged the have issued to authorize such investiga- evidence against Compton and the other city council and the local zoning board to tions, the investigating officials "could citizens to proceed with a trial...
...CIR attorney Nicholas Hentoff (son received a decisive rebuke from the U.S...
...Don't criticize developers if you don't want to get sued...
...Mount- In its z997 ruling in Schwapp v. Avon, ing a legal defense, even if ultimately the Second Circuit Court of Appeals successful, might easily bankrupt an ordi- ruled that a discrimination claim, chargnary citizen--especially if (as Judge ing a hostile work environment, could Wanger's decision assumes) the defense properly invoke comments not actually must engage in detailed analysis of who made to the plaintiffand even comments said what to whom and with what made before the plaintiff was hired motives...
...So, too, it warns that display of minority employees, they are pressed to artwork with sexual imagery may create a impose more extensive controls...
...But he reject the project, then tried to mobilize not have reasonably believed their would not agree that the First Amendopposition by publishing a small newslet- actions to be consistent with the First ment offered any general guarantee of ter and sharing their concerns with local Amendment...
...The case of White v. AHDC v. Fresno, comparing the "multiLee grew out of early efforts by the Clin- izens...
...The recourse that Alexandra White had against HUD would not be available against a private litigant...
...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...
...Amendment does not protect direct per- Needless to say, the Clinton adminissonal threats or even "fighting words," tration did not stir itself to disavow such likely to provoke a violent response...
...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-remarkable readiness to forget sued for allowing employees to tell off- people in their organizations...
...The Center for Indi- spondence, private notes about meetings, But both developments should remind and other records to determine tile precise vidual Rights ended up representing one us of what is by now rather old news: of these citizens, Travis Compton, a first- motives of these citizens...
...Housing and Urban Development proposed new housing proiect...
...And there is a real problem...
...The mere threat of litigation because when a victim "learns secondmight intimidate ordinary citizens or hand of a racially derogatory comment civic groups from continuing to voice or joke by a fellow employee...
...of the columnist and free speech crusad- National pubIicity forced HUD to Court of Appeals for the Ninth Circuit announce a new policy in 1994 and to er, Nat Hentoff) submitted a florid brief in in late September...
...Unlawfully discriminatory conduct ing Act--on the premise that opposing carried out by speech activities is not immunized by the First Amendment...
...The school avoided a lawsuit by renaming its female teams "Lady Warriors...
...Again, quite sensible...
...But once a "hostile environment"-- even for those employers are responsible for ensuring who do not receive it, but merely hear there is no "hostile environment" for about it...
...A federal judge housing facility in their neighborhood...
...city council members had opposed public subsidies and zoning permits for a low-cost housing project...
...that] can public criticism of a controversial pro- impact the work environment...
...substance abusers, but it would be locat- ing this ruling, the Ninth Circuit insist- Federal Judge Oliver Wanger ultied across the street from several liquor ed that, whatever regulations HUD may mately agreed that there was not enough stores...
...Only a few weeks ear- Wanger explained in his August 31 rulcollaborators for violating the Fair Hous- lier, a federal district judge offered a ing...
...Harassment law is the leading example of this trend...
...Applying this sort of reasoning to sexual harassment claims leads to very extreme results...
...and federal fair housing laws," Judge launch an investigation of White and her Well, not quite...
...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...
...In gression was to petition his elected rephousing for homeless people, including its forceflll September opinion uphold- resentative for a redress of grievances...
...So during the Lewinsky scandal legal experts advised employers not to allow office workers to get into discussions about the Start Report or the details of the president's conduct--lest about the First Amendment when behavior is defined as discrimination...
...JEREMu I~BKIN is d professor of govern- ifornia...
...At present, it is not clear that it is...
...Department of cease writing arid speaking against the receiving pro bono assistance from CIR...
...ers could be seen as contributing to a "hostile environment" in the workplace...
...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...
...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...
...To the contrary, civil rights enough...
...The Equal Employment Oppor- enforcers in the Clinton administration tunity Commission decided in the 197o's have continued to press for expanded that employers would be guilty of dis- conceptions of "hostile environment" discrimination if minority employees were criminationl The Education Department subject to a continued barrage of racial insists that student e-mail can constitute epithets...
...Such suits might be hard to win at trial, but they have great potential as tactical maneuvers...
...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...
...Courts have shown charge is discrimination...
...The Affordable Housing Development Corporation (AHDC) sued everyone around, includand some bad news...
...hostile environment...
...The First Amendment does not necesplained, HUD officials proceeded to to chili unpopular speech...
...tens of thousands of dollars in legal fees to dents of Berkeley, California, had orga- whole investigation had violated their "It is time [he] is told that the Federal nized protests against plans for a special courts are not...a forum for seeking First Amendment rights...
...Volokh says, quite correctly, that private lawsuits-- demanding compensation...
...Fair advice...
...This applies to other areas where even seemingly mainstream political speech is treated as unlawful "discrimination"-as the AHDC cases illustrates...
...Employers have been color jokes or for displaying semi-nude calendar pictures--alleged, of course, to constitute a "hostile environment" for the discrimination and harm imposed by a "hostile environmenf'- are as much responsible for the broader trend as overeager civil rights enforcers in the Clinton administration...
...In a lawsuit ington-based Center for Individual Alexandra White and two other resi- Rights (CIR), they protested that the file one frivolous complaint after another": ed that this decision made it "clear that When proponents of the project com- anti-discrimination laws cannot be used sarily trump the Civil Rights Act or state rather different approach in a seemingly similar case, which arose in Fresno, CalMeanwhile, Compton and the other ment at Comell Uni~ersity...
...Through ing the city of Fresno, most of the council members, individually, and a list of news for friends of free speech-- eight months of investigation, HUD investion, with possible fines of up to $1oo,ooo, The welcome news is that civil rights if they did not abandon their lawsuit and ed some $30,000 in legal fees before drop its threats against the Berkeley citcontinued to fight back...
...Maybe a new administration will give the matter a little more thought...
...against the project...
...agreed that HUD officials could be held revenge against a citizen whose only transThe project was supposed to provide personally liable for damage claims...
Vol. 33 • December 2000 • No. 10
