fhap programmatic matters awareness of potential 1 st amendment concerns

FHAP Programmatic Matters

Awareness of Potential 1st Amendment Concerns

Are there potential 1st amendment concerns in this complaint?

• I. My residents were harassed by neighbor June Dance, the most recent incident occurring on May 7, 2010, while residing at my five-bedroom board and care home located at 2984 Border St., City, State.

• II. I believe that my residents were harassed due to their disability status (mental health conditions). This is a violation of Sections 804(c) and 818 of the Fair Housing Act. My belief is based on the following:

• A. My residents were harassed by June Dance, the most recent incident occurring on May 7, 2010. The harassment was based on their disability status, and was of a verbal, visual and physical nature. The harassment created a hostile and offensive atmosphere and violated our mission to provide a discrimination-free living environment for our disabled residents.

Are there potential 1st amendment concerns in this complaint, cont’d?

Additional allegations from intake interview with complainant:

• Respondent has made numerous baseless reports about group home residents to police;

• Respondent has shouted out threatening statements to residents (e.g., I’ll go back to jail for you.”);

• Respondent posted signs in her front yard “Sexually inappropriate fire-setter; tax $ at work”

Potential 1st Amendment Concerns

References:• Title VIII Investigative Manual (HUD 8024.01),

paragraph 5-5.

• FHEO Notice 2007-01 (incorporated into Investigative Manual, but provides useful additional background)

• 24 CFR 115.310 (no FHAP funds may be used to investigate or prosecute activities protected by the First Amendment)


1st amendment:• “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


• “Absent force, physical harm, or a clear threat of force or physical harm to one or more individuals, public speech-related activities directed toward encouraging and/or achieving actions by a Federal, State, or local governmental entity or official—however hostile, offensive, distasteful, obnoxious, reprehensive and/or bigoted in content—must be considered as part of a robust debate of public issues.” (Investigative Manual, 5-5.B)


Examples of protected “public activities” (non-exhaustive):• Distributing flyers• Organizing neighborhood meetings• Writing articles or letters to newspapers• Organizing or participating in peaceful demonstrations

(including picketing)• Testifying & presenting petitions at public hearings• Communicating with governmental entity concerning official

governmental matters

(Investigative Manual, 5.5C)


What’s generally not protected:

• Commercial speech in a commercial context


Be particularly cautious with:• 804( c) allegations (oral or written preference

or limitations allegations)• 818 allegations (intimidation, coercion,

interference allegations) • Complaints filed against individuals who do

not directly control the contested housing (e.g., neighbors, other tenants)


• If concerned about potential 1st amendment issues:

• Do not accept complaint for dual-filing• Do not send out notification of filing letters• Seek out additional information from FHAP

partner regarding allegations• Notify FHAP partner if you are referring to HQs-

FHEO for guidance• Make notes in Jurisdiction screen in TEAPOTS


Lessons learned from “Dance” Complaint• HUD & FHAP counsel may come to different conclusions

regarding potential 1st amendment issues;

• Conciliation discussions may not be regarded as confidential if case goes on to litigation. So, be very cautious about communicating complainant’s conciliation goals if those goals could be seen as chilling/limiting 1st amendment rights;

• Process expediently.

fhap programmatic matters awareness of potential 1 st amendment concerns

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